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United States District Court, Southern District of New York

April 9, 2003


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 untimely on June 2, 1999, and later denied her petition for rehearing.

Liu now brings a petition for a writ of habeas corpus in this Court, see supra n. I., challenging the final decision of the BIA.


A. Legal Standards

Where a petitioner appears pro se, the Court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted).

According to the United States Court of Appeals for the Second Circuit, the scope of this Court's jurisdiction pursuant to 28 U.S.C. § 2241 is limited. Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001). Federal district courts possess jurisdiction to review "purely legal statutory and constitutional claims." Calcano-Martinez v. I.N.S., 232 F.3d 328, 342 (2d Cr. 2000), aff'd, 533 U.S. 348 (2001). However, "federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA." Sol, 274 F.3d at 651.

B. Equal Protection Claims

Referring to the constitutional guarantee of equal protection of the laws, Liu contends that she is as deserving of being granted asylum as the thousands of other refugees who allegedly were granted asylum by the INS in the 1990s. See Pet. at 2-3. She does not allege that any statute or regulation is facially unconstitutional. Instead, she appears to challenge the application of the asylum law and procedures to her particular case.

Therefore, to demonstrate a denial of equal protection, Liu must show that the challenged action had an impermissible discriminatory intent or purpose. See e.g., Orange Lake Assocs. v. Kirkpatrick, 21 F.3d 1214, 1226 (2d Cir. 1994) (citing Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977)). Liu has not made any such showing, nor has she demonstrated that she was treated differently from any other individuals similarly situated to her. See Jankowski-Burczyk v. I.N.S., 291 F.3d 172, 176 (2d Cir. 2002) (equal protection guarantee of Fifth Amendment due process clause "is essentially a direction that all persons similarly situated should be treated alike") (internal citations and quotation marks omitted). Accordingly, Liu fails to state a violation of her right to equal protection.

D. Due Process Claims

Liu contends that she was deprived of due process because of various procedures followed by the INS, the IJ, and the BIA, and because of numerous mistranslations or miscommunications during her deportation proceedings. We shall consider each of her claims.

1. Missed Asylum Interview in 1995

Liu contends that she never received a non-adversarial asylum interview with an INS officer pursuant to 8 C.F.R. § 208.9 and that this deprivation constitutes a violation of her right to due process.

The administrative record reflects that an asylum interview had in fact been scheduled for August 31, 1995, but Liu failed to appear for it. She alleges that she did not receive notice of the interview because the INS used an improper address. However, the Government correctly notes that Liu herself supplied the confusing form of her address in her asylum application.*fn4

It is immaterial whether Liu's lack of notice is attributable to her failure to specify her address properly or the INS's failure to take the simple steps that would have clarified the matter, since the other components of the asylum and deportation proceedings afford an alien sufficient due process. An asylum interview is simply an "interview [conducted] in a nonadversarial manner . . . separate and apart from the general public" by an asylum officer who is an INS employee. 8 C.F.R. § 208.9(b). However, Liu received a much more extensive "adversarial asylum hearing before a neutral immigration judge with a full panoply of due process safeguards." Marincas v. Lewis, 92 F.3d 195, 200 (3rd Cir. 1996); see also Selgeka v. Carroll, 184 F.3d 337 (4th Cir. 1999). Liu's missed asylum interview does not, by itself, rise to the level of a constitutional deprivation of due process.

2. Access to Counsel

Liu also appears to be alleging a due process violation with respect to her access to counsel. Referring to "free counsel," Liu complains about two lawyers she alleges were appointed by Immigration Judge Speer, asserting that one would not provide "free service" and the other wanted her to sign a "document of voluntary departure." (Dec. 20, 2002 Gov't Ltr, Exh.B.)

Pursuant to the Due Process Clause and the Immigration and Nationality Act, an alien in deportation proceedings is entitled only to "representation of his own choice at his own expense." Michel v. I.N.S., 206 F.3d 253, 258 (2d Cir. 2000). The IJ advised Liu of her right to an attorney and gave her several months to secure legal representation. She did not do so and ultimately told the IJ that she did not want a lawyer. (R. 41). Accordingly, Liu's right to counsel and her due process rights were not violated.

3. BIA'S Credibility Determination

Liu advances a number of other claims that this Court interprets to be challenges to the BIA's determination that Liu's testimony was "inconsistent" and "not credible."

The basis for the BIA's decision to deny Liu's appeal was its finding that Liu's testimony was "internally inconsistent" and "not credible." Indeed, the adverse credibility finding is the dispositive factor in the BIA's decision. The BIA wrote that:

The respondent's testimony is internally inconsistent and it is not consistent with the statements she provided in her asylum application. We therefore find that her testimony is not credible. . . . Accordingly we deny her applications for asylum and withholding of deportation on this basis.
The respondent gave discrepant statements regarding her country of citizenship . . . the dates and circumstances of her periods of detention in both Japan and China, . . . and the dates and periods of hospitalization. . . . She has offered no explanations for these discrepant statements, but has instead further confused her testimony on appeal. . . . We therefore cannot excuse these inconsistencies, but must instead find that they support our conclusion that the respondent's testimony is incredible. . . .
(R 3.)

The record indicates no attempt by the BIA to solicit clarification of these inconsistencies from Liu. Moreover, Liu herself is of the view that her testimony was not inconsistent and that any surface inconsistencies and elements of confusion in the record are the result of miscommunications and mistranslations between her, the translator, the IJ, and the court reporter. (Pet. Reply, Dec. 20, 2002, at 5-13.) Furthermore, it is important to note that the IJ — as opposed to the BIA — made no adverse credibility determination with respect to Liu's testimony. Yet it is widely recognized that an immigration judge is in the best position to make credibility findings since he or she is the one listening to the petitioner's testimony and observing the petitioner's demeanor. See Montero v. INS, 124 F.3d 381, 386 (2d Cir. 1997).

The Fifth Amendment entitles aliens to due process of law in deportation proceedings. See Reno v. Flores, 507 U.S. 292, 307 (1993); accord Zadvydas v. Davis, 533 U.S. 678 (2001). Specifically, the Fifth Amendment provides a right to a full and fair hearing in deportation cases. Therefore, when — as in this case — the BIA decides an asylum case based on an independent, adverse credibility determination, and where the IJ made no credibility finding at all, and where there is concern that testimonial inconsistencies were the result of mistranslations or miscommunications, the petitioner is denied due process of law if she is not given an opportunity to explain any alleged inconsistencies that the BIA has raised for the first time. See Alvarado-Carillo v. I.N.S., 251 F.3d 44, 56 (2d Cir. 2001) (to the extent that the BIA might determine on remand in an asylum proceeding to accord significance to any inconsistencies in alien petitioner's story, the BIA is encouraged to provide some means for petitioner to offer explanation for them) (citing Abovian v. I.N.S., 219 F.3d 972, 979 (9th Cir. 2000)); see also Abovian v. I.N.S., 219 F.3d 972 (9th Cir. 2000) (BIA violated due process rights of aliens by denying petitions for asylum and withholding of deportation on basis of adverse credibility determination, where IJ had not made a credibility finding, and aliens thus were not put on notice that credibility was questioned or that they should provide the BIA with explanations for alleged discrepancies in their testimony).

After this petition was fully briefed, the INS submitted a letter in support of its contention that the BLA's finding that petitioner was not a credible witness in her immigration proceedings lies beyond the scope of this Court's habeas review. See Gov't Letter, March 12, 2003 (invoking the Second Circuit's recent decision in Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) in support of the contention that administrative determinations of fact are beyond the scope of a federal court's habeas jurisdiction). However, this Court is not treading on the substance of the BIA's factual findings. As a matter wholly apart from the substantive strength of the BIA's factual determinations, this Court finds that the BIA violated Liu's right to procedural due process by making a dispositive and independent adverse credibility finding — in the absence of any such finding by the immigration judge — without affording her the opportunity to establish her credibility or clarify her testimony. Such a determination, which turns on the procedural adequacy of the BIA proceeding, is well within the district court's jurisdiction to review "purely legal statutory and constitutional claims." Calcano-Martinez, 232 F.3d at 342. Procedural due process protects aliens from the risk that a complicated or confusing record will be automatically transmuted into an independent adverse credibility finding by the BIA in support of a final order of removal.


For the foregoing reasons, Liu's petition is granted. Accordingly, the BIA's denial of asylum and withholding of deportation is vacated and the matter is remanded to the BIA for asylum and withholding of deportation is vacated and the matter is remanded to the BIA for further proceedings in order for Liu to be provided with a reasonable opportunity to explain the perceived deficiencies in her testimony. If further factual development of the record is required, the BIA should remand the case to the immigration judge.


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