The opinion of the court was delivered by: Sidney H. Stein, United States District Judge
Luya Liu, a native of the People's Republic of China, brings this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the final decision of the Board of Immigration Appeals ("BIA") denying her application for asylum and withholding of deportation and ordering her deported to China should she fail to depart voluntarily. For the reasons set forth below, the petition is granted and the case is remanded to the BIA for further proceedings consistent with this opinion.*fn1
Liu appealed the January 29th decision to the Second Circuit, which reversed and remanded the case to this Court for further proceedings, holding that "Congress has preserved the right to habeas review for both criminal and non-criminal aliens." Liu v. I.N.S., 293 F.3d 36, 41 (2d Cir. 2002) (quoting Chmakov v. Blackman, 266 F.3d 210, 215) (3d Cir. 2001)). The Second Circuit's decision was based substantially on I.N.S. v. St. Cyr., 533 U.S. 289 (2001), which was decided after this Court dismissed Liu's petition and which held that certain provisions of the 1996 amendments to the immigration laws did not repeal U.S. District Courts' habeas jurisdiction See Liu, 293 F.3d at 38-41.
Accordingly, this Court now properly possesses subject matter jurisdiction over Liu's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Luya Liu, a native of China, was admitted to the United States on April 26, 1995, in San Francisco, as a nonimmigrant visitor for pleasure, and was authorized to remain only until October 25, 1995. The details of petitioner's personal history and her current citizenship status are somewhat murky.
Liu claims that she is an economist who has published numerous articles and books, in both Chinese and Japanese, regarding various aspects of Chinese and Japanese development, including China's relationships with Japan and the United States. From 1987 to 1992, Liu lived and worked in Osaka, Japan, and while there decided that she wished to obtain Japanese citizenship. She claims that she renounced her Chinese citizenship on July 19, 1991, as she was required to do in order to pursue her application for Japanese citizenship. (R 69-70.)*fn2
In 1991, in a book she published in Japanese and titled Insight of Japan, Liu made certain allegations about "the illegle [sic] behavior of the government officials of Japan and China," including allegations pertaining to economic conditions in Japan, how the Japanese treat aliens, and "the economic conditions of Tiananmen Square." (Tr. 21, R 20, R 134.)*fn3 Liu alleges that because of this book and its contents, she was held prisoner in Osaka and tortured by Japanese immigration officials for 278 days, from March 1992 to December 1992. On December 25, 1992, Liu returned to China "as a non-citizen" but with a Chinese passport, which she claims Japanese officials forced the Chinese consulate to provide. (R 20.) She has never obtained Japanese citizenship.
Liu alleges that once back in China, she was immediately hospitalized in Beijing due to numerous and severe injuries incurred during her Japanese confinement. (R 121-22.) She claims that she remained hospitalized for more than two years, until February 27, 1995, except for a few hours on May 10, 1994. On that date, Liu claims that (1) she left the hospital and went to the Japanese consulate in Beijing to demand that the Japanese government pay for her hospitalization, and (2) the Chinese police arrested her and detained her for several hours before she was allowed to return to the hospital. (R 134.)
On February 28, 1995, apparently with the permission of the Chinese government, Liu came to the United States to seek advice at the United Nations about pursuing a lawsuit she had brought against the Japanese government. (R 86-87.) She then twice traveled to Japan, and Japan twice denied her entry — on April 2 and April 25, 1995. (R 83.) Liu then returned to China where she obtained a visa to visit the United States for six months. As noted, she entered the United States on April 26, 1995 and has remained here since that date. (R 153.)
On June 27, 1995, petitioner filed an application for asylum with the Immigration and Naturalization Service ("INS"). (R 129-54.) In the application, Liu declares herself a Chinese national and claims that she had been persecuted by both the Chinese and Japanese governments. She asserts that the Chinese government seized all of her personal property (including a house and well-known paintings), cancelled her residence registration and medical benefits, prohibits her from seeking compensation from the Japanese government, and does not permit the publication of any of her writings or speeches. (R 132-133.) She also claims to have been detained and placed under surveillance in Beijing from April 15 through April 24 of 1995. (R 133.) Liu claims that if she returned to China, she would be "distained [sic] and interrogated," and subject to hunger, disease, and mistreatment at the hands of Chinese government officials. (R 132.)
Liu was scheduled for an asylum interview with an INS officer on August 31, 1995, but failed to appear. (R 119, 123.) Consequently, on January 23, 1996, her case was administratively closed by the INS and on April 9, 1996, the INS issued an order to show cause charging Liu with deportability for having stayed beyond the time authorized by her nonimmigrant visitor's visa and requiring her to appear before an immigration judge ("IJ") on June 27, 1996. (R 166-70.) That hearing was rescheduled for February 20, 1997 to allow Liu time to seek counsel. (R 38, 163-65.)
Petitioner's hearing before Immigration Judge John K. Speer ultimately took place on May 6, 1997, following another adjournment. (R 38.) Liu did not have counsel present. In a rather perfunctory opinion, the IJ denied Liu's application for asylum and withholding of deportation and offered her voluntary departure. (R 31-35.) After summarizing the evidence, the IJ found that Liu had not demonstrated a well-founded fear or clear probability of persecution were she to return to Japan or China. (R 34.) The IJ made no findings concerning Liu's credibility.
Liu timely appealed that determination to the Board of Immigration Appeals, which denied her appeal, finding that her testimony was "internally inconsistent and is not consistent with the statements she provided in her asylum application." (R 3.) The BIA concluded that it "find[s] her testimony is not credible." (R 3.)
Petitioner claims that she mailed an appeal to the U.S. Court of Appeals for the Second Circuit on December 28, 1998. However, that Court's docket shows that her appeal was filed on February 3, 1999. The Court of Appeals therefore dismissed the appeal as ...