Wang He v. John Ashcroft, Attorney General

In this case, we review a denial of asylum and an explicit finding by the Board of Immigration Appeals (“BIA”) that petitioner Wang He’s testimony in support of his asylum application was not credible. After fleeing China, Mr. He arrived in Guam and sought asylum and withholding of removal. Mr. He claimed that he and his wife had been persecuted by the Chinese government based on their opposition to China’s population control policies. Specifically, he claimed that, following the birth of their second child, his wife had been involuntarily sterilized. Based on that past incident of persecution, Mr. He requested asylum. The BIA found that Mr. He was not credible and refused to believe that his wife had been involuntarily sterilized.

We hold that the BIA’s adverse credibility finding was not supported by substantial evidence. We therefore conclude that Mr. He has established his eligibility for asylum. We remand for a determination of Mr. He’s eligibility for withholding of removal and, in the event he is not found eligible for withholding of removal, for the exercise of the Attorney General’s discretion whether to grant asylum.

I. Background

On January 5, 1995,…