QUN WANG v. ATTORNEY GENERAL OF THE UNITED STATES, No. 04-2866 (3d Cir. 2005), 2005 U.S. App. LEXIS 20227, found that IJ had failed to maintain impartiality as required of judicial officers.

JUDGES: Van Antwerpen, Becker, Fuentes(Opinion):

Petitioner arrived in the United States from China without valid entry documents and was put into removal proceedings under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). Petitioner conceded removability but applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT). In particular, Petitioner claimed that he had been subject to past persecution on account of political opinion alleging that his wife was forcibly sterilized after giving birth to a second child. The Immigration Judge (“IJ”) found Petitioner lacked credibility and denied him relief from deportation. The Board of Immigration Appeals (BIA) affirmed. Petitioner appealed.

Petitioner claimed that because his first daughter was born with a disability and because Petitioner and his wife wanted to have a son. Petitioner’s wife became pregnant again in violation of the 1989 Fujian Province Family Planning regulations and was forcibly dragged from their house and forcibly sterilized by the Chinese authorities. The officials also fined Petitioner 12,000 RMB (or "Renminbi"), and upon his refusal to pay, began deducting a penalty from his parents' retirement pension. Petitioner ultimately left China for the United States through a smuggler whom he paid approximately $ 60,000 in borrowed funds.

The record showed that the IJ's questioned Petitioner during his asylum hearing as to why he had not paid the fine in order to restore his parents' pension and why Petitioner had never sought treatment for his daughter in the United States. The IJ was outraged that Petitioner jeopardized his parents’ pension while he paid a smuggler and made comment that Petitioner should have taken better care of his living daughter instead of trying to conceive a son. In the course of her opinion, the IJ repeatedly focused on Petitioner’s actions towards his elder daughter and parents.

The court concluded that the conduct of the IJ itself showed that she had failed to remain impartial and characterized her conduct as biased and prejudiced. The court found that the IJ's opinion was highly improper for both its contemptuous tone and its consideration of personal issues irrelevant to the merits of Petitioner's asylum claim. The court pointed out that the IJ was not called upon to determine whether Petitioner was a good father and son but whether petitioner’s wife had been forcibly sterilized and whether, if he returned to China, the Chinese government would inflict improper punishment on him for leaving the country. The court stressed that IJs may not use the "personal choices that an asylum applicant has made concerning marriage, children, and living arrangements" to evaluate an alien's credibility.

The court concluded that it could not credit the IJ’s adverse credibility determination because it was unsupported by substantial evidence. The court granted the petition for review and recommended that on remand the case would be assigned to a different IJ.