Xiu Chen v. Eric Holder, Jr.

Filing 920090226

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-1482

XIU RONG CHEN; GUO CAI YANG, Petitioners, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued:

December 3, 2008

Decided:

February 26, 2009

Before WILLIAMS, Judges.

Chief

Judge,

and

TRAXLER

and

KING,

Circuit

Petition for review denied by unpublished per curiam opinion.

ARGUED: Yee Ling Poon, New York, New York, for Petitioners. Kristin Kay Edison, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Robert Duk-Hwan Kim, New York, New York, for Petitioners. Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Xiu Rong Chen and her husband Guo Cai Yang, both natives
and citizens of the People's Republic of China, petition for review of a final order of the Board of Immigration Appeals ("BIA") denying their applications for asylum, withholding of removal, Against and protection under the United and Nations Yang's Convention asylum and

Torture

("CAT").

Chen's

withholding of removal claims allege that Chen suffered past persecution when Chinese officials fitted her with an

intrauterine contraceptive device ("IUD") against her will after the birth of her first child with her first husband and that Chen and Yang fear sterilization upon return to China because of a second child that they had after they were married in the United States. Chen's CAT claim alleges that she fears

detention and torture as a result of her violation of China's one-child policy; Yang's CAT claim likewise alleges that he

fears detention and torture, but as a result of his leaving China illegally with the assistance of a snakehead. 1 The BIA denied their asylum and withholding of removal

claims, affirming the conclusion of the Immigration Judge ("IJ") that
1

the

forced

IUD

insertion

was

not

persecution

under

the

A "snakehead" is a professional smuggler of Chinese migrants. Chen Lin-Jian v. Gonzales, 489 F.3d 182, 186 n.1 (4th Cir. 2007).

2

Immigration and Nationality Act ("INA"), 8 U.S.C.A. § 1101 et seq. (West 2005 & Supp. 2008), and that any fear that the couple had of forced sterilization in the future was unreasonable. The

BIA also denied their CAT claims, affirming the IJ's conclusion that the evidence failed to show that Chen and Yang would likely be tortured upon their return to China. For the following

reasons, we deny Chen's and Yang's petition for review on all claims.

I. Ms. Chen entered the United States in September 2001 as a nonimmigrant visitor for business and was authorized to remain in the United States for a temporary period not to exceed

October 8, 2001.

On January 1, 1997, prior to arriving in the

United States, Chen gave birth to a son in China with her first husband. Following the birth of her son, Chinese family

planning officials required Chen to have an "IUD insert[ed]" and to "go for [an] IUD check-up every three months." 45.) (J.A. at 244-

Because Chen experienced "an irregular period and pain,"

she "had the IUD removed approximately 3 months after it was fitted." required determine (J.A. at 974.) to if attend she After removing the IUD, Chen was still every three months and or her so to

examinations had become

pregnant.

Chen

first

3

husband eventually divorced, and Chen was granted custody of her son, who remains in China. Mr. Yang entered the United States in May 2001 without

inspection by an immigration officer.

Prior to entering the

United States, Yang had another wife with whom he had a daughter in China. After the birth of his daughter on May 6, 1999,

family planning officials fitted his wife with an IUD to prevent pregnancy. But the IUD either "malfunctioned or dislodged," and

his wife learned that she was again pregnant in January 2001 and stopped appearing for her IUD check-ups. (J.A. at 1785.)

Fearful that the family planning officials would force his wife to have an abortion if they learned of her unauthorized

pregnancy, Yang, whose older sisters and sister-in-law had been forcibly sterilized, decided that he and his wife should leave China and hopefully give birth to the child in the United

States. his wife

Yang and his wife both left China in March 2001, but left with a few days before Yang and, according "was to a

snakehead

whom

Yang's

brother-in-law

spoke,

killed

when the small boat [she was on] capsized in rough waters." (J.A. at 1785.) Yang's first daughter remains in China.

Chen and Yang met for the first time in December 2003, married on March 26, 2004, and gave birth to a daughter on October 9, 2004. asylum with the That same month, Chen filed an application for Department of Homeland Security ("DHS").

4

Because she gave birth to her daughter with Yang, Chen "feared that [she] would be forced to have either an abortion or

sterilization if [she] were returned to China." In fact, she knew An DHS two family officer removal members who had

(J.A. at 574.) already in been

sterilized. 2004, and

asylum initiated

interviewed proceedings

Chen

November her by

against

filing a Notice to Appear in immigration court, charging her with removability under 8 U.S.C.A. § 1227(a)(1)(B) (West 2005), as an alien present in the United States beyond the time

permitted by her visa. Yang filed a separate asylum application in November 2004. Yang explained that once Chen became pregnant, he feared that either Chen would be forced to have an abortion or sterilization or that he would be forced to be sterilized if the couple was returned to China. In December 2004, DHS initiated removal

proceedings against Yang by issuing a Notice to Appear, charging him with removability under 8 U.S.C.A. § 1182(a)(6)(A)(i) (West 2005), as an alien present in the United States without having been admitted or paroled. Before the IJ, Chen admitted the charges against her and conceded removability, but sought asylum, withholding of

removal, protection under the CAT, and voluntary departure in the alternative. was also in After Chen's counsel informed the IJ that Yang proceedings, the IJ consolidated their

removal

5

cases.

The IJ held a hearing on February 23, 2006 and denied The BIA dismissed the Chen and Yang We timely possess

all forms of relief to Chen and Yang. subsequent petitioned appeal for our on May 15, of 2007. the

review

BIA's

order.

jurisdiction under 8 U.S.C.A. § 1252(a) (West 2005).

II. A. The BIA's decision that an alien is ineligible for

admission to the United States is "conclusive unless manifestly contrary to law." 8 U.S.C.A. § 1252(b)(4)(C) (West 2005). "We

treat administrative findings of fact as conclusive `unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Lin v. Mukasey, 517 F.3d 685, 691 (4th Cir. 2008) "We review de

(quoting 8 U.S.C.A. § 1252(b)(4)(B) (West 2005)).

novo legal questions determined by the BIA, . . . affording appropriate deference to the BIA's interpretation of the INA and any attendant regulations[.]" citations omitted). Where, Lin, 517 F.3d at 691-92 (internal as here, the BIA affirms the

decision of the IJ in a separate written opinion, we review both the BIA's decision and the IJ's decision to the extent the BIA relied upon it. (4th Cir. 2007). See Niang v. Gonzales, 492 F.3d 505, 511 n.8

6

B. 1. We now turn to each of Chen's and Yang's claims. The

couple first contends that the BIA's denial of their asylum and withholding of removal claims was inappropriate because the

BIA's conclusion that the couple did not establish either past persecution or a well-founded fear of future persecution was manifestly contrary to law. To qualify for asylum, an alien must demonstrate that he or she is unable or unwilling to return to his or her country of origin because of persecution, or a well-founded fear of future persecution, nationality, political on account of in a his or her race, social If religion, group, an or

membership 8

particular §

opinion.

U.S.C.A.

1101(a)(42).

alien

proves past persecution, that alien is entitled to a presumption of a well-founded fear of future persecution, which the

Government can overcome only by establishing by a preponderance of the evidence either that there has been a fundamental change in circumstances such that the applicant no longer has a wellfounded fear of or persecution that the in the applicant's could country of

nationality,

applicant

avoid

future

persecution by relocating to another part of the applicant's country of nationality. 1208.13(b)(1) (2008). Lin, 517 F.3d at 692-93; 8 C.F.R. §

Responding to China's "one child" policy,

7

Congress amended § 1101(a)(42) to provide as follows: [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. Id. To qualify for withholding of removal, an alien "bears the

higher burden of showing that it is `more likely than not' that, if removed to a particular country, [his or] her life or freedom would be threatened on account of one of the enumerated

grounds."

Lin, 517 F.3d at 692 (quoting Camara v. Ashcroft, 378

F.3d 361, 367 (4th Cir. 2004)). Chen and Yang first dispute the BIA's conclusion that

Chen's forced IUD insertion and required checkups "did not rise to the level of past persecution." In Lin, we declined to (J.A. at 2.) consider whether forced IUD

insertion is persecution under § 1101(a)(42), instead remanding the case to the BIA so that it could provide us with meaningful guidance on that question. Lin, 517 F.3d at 693-94. We did so

because the INA provides that the "determination and ruling by the Attorney General with respect to all questions of law shall be controlling," 8 U.S.C.A. § 1103(a)(1) (West 2005), and the

8

Supreme Court has often stated that "judicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations."

I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (internal quotation marks omitted). In a recent decision, In re M-- F-- W--, 24 I. & N. Dec. 633 (BIA 2008), the BIA finally provided the much needed guidance on whether and under what circumstances forced IUD insertion

constitutes persecution. Specifically, the BIA explained: 1. "[S]imply requiring a woman to use an IUD, and other more routine methods of China's implementation of its family planning policy, do not generally rise to the level of harm required to establish persecution. . . . [E]xamples of routine acts . . . that are lacking in harm sufficient to constitute persecution include reinsertion of an IUD after the removal of an IUD, fines for having removed the IUD that are not excessive, regularly required gynecological exams, and other routine fines and threats for disobeying the policy." Id. at 640-41. "[T]o rise to the level of harm necessary to constitute `persecution,' the insertion of an IUD must involve aggravating circumstances," such as physical abuse. Id. at 642. "[S]hould the harm associated with an IUD rise to the level of persecution, there must still be a link between the harm and the reasons for its infliction that establishes that it is the result of, or is on account of, other resistance or one of the protected grounds described in section 101(a)(42) of the Act." Id. at 642.

2.

3.

9

In

this

context,

"the

BIA

should

be

accorded

Chevron

deference as it gives ambiguous statutory terms concrete meaning through Aguirre, a process U.S. of 415, case-by-case 425 (1999) adjudication." 2 (internal Aguirremarks

526

quotation

omitted)).

And, applying that deference, we must uphold the

BIA's determination that an IUD insertion without any sign of physical abuse does not constitute persecution. In support of its conclusion that the required usage of an IUD is not persecution, the BIA distinguished IUD insertion from forced abortion or sterilization, explaining: While having an IUD inserted involuntarily is certainly intrusive and hinders a person's ability to control procreation, the temporary nature of its effects persuades us that such a procedure does not constitute persecution per se. Unlike forced abortion and sterilization, using an IUD does not generally have permanent effects, other than the loss of time during which to conceive. Absent evidence to the contrary, we find that under normal circumstances, the IUD user does not lose a child or the permanent opportunity to have a child . . . . In re M--F--W--, 24 I. &. N. Dec. at 640. Recognizing that one could certainly argue that "the

perpetual use of an IUD, or any other birth control method,
2

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) mandates that the BIA's interpretations of ambiguous sections of the INA must control unless those interpretations are unreasonable. Id. at 844 (concluding that agency's interpretation of a statutory scheme it is entrusted to administer is controlling unless the interpretation is "arbitrary, capricious, or manifestly contrary to the statute.")

10

throughout

a

woman's

child

bearing

years

until

menopause

effectively results in a form of sterilization," In re M--F--W--, 24 I. &. N. Dec. at 636, the BIA nevertheless rejected the argument, sterile,'" and reading which the means that verb "sterilize" of to mean "`to make

"`[i]ncapable "[t]his

sexual

reproduction'" clear the

concluding

definition

makes

permanency of the sterilization procedure--i.e., that it leaves one incapable of having children--and leads us to [conclude] . . . that IUD use should [not] be treated as the equivalent of sterilization." In re M--F--W--, 24 I. &. N. Dec. at 636 (quoting

Webster's II New Riverside University Dictionary 1137 (1994)); id. ("Unlike sterilization, [IUD insertion] is a temporary

measure meant to provide for birth planning and not to remove all possibility of future birth opportunities."). Even were we to conclude that the BIA's interpretation of § 1101(a)(42) was not the best available interpretation of the statutory language, is we certainly and cannot we must say that its

interpretation

unreasonable,

therefore

afford

Chevron deference to the BIA's conclusion that an IUD insertion, unaccompanied by any aggravating circumstance, does not

generally constitute "persecut[ion] . . . for other resistance to a coercive population control program" within the meaning of § 1101(a)(42). See Chevron, 467 U.S. at 844 ("[A] court may not

substitute its own construction of a statutory provision for a

11

reasonable agency.").

interpretation

made

by

the

administrator

of

an

Applying

the

BIA's

holdings

to

this

case,

we

easily

conclude, as the BIA did, that Chen and Yang have failed to allege past persecution. procedure differed from There is no testimony that "[Chen's] a voluntary IUD insertion," Li v.

Gonzales, 405 F.3d 171, 179 (4th Cir. 2005), or that it was accompanied by any physical abuse. Chen notes that she was

forced to have required check-ups every three months, but the BIA has concluded that "regularly required gynecological exams" do not rise to the level of persecution and we owe that

conclusion Chevron deference as well.

Moreover, Chen has failed

to offer any evidence whatsoever establishing a nexus between the IUD insertion and her own resistance to China's population control policies. 2. To succeed on their asylum claims absent evidence of past persecution, Chen and Yang must establish a well-founded fear of future persecution, which involves subjective and objective

components. 2004).

Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.

To satisfy the subjective element, Chen and Yang must

present "candid, credible, and sincere testimony demonstrating a genuine fear of persecution." Id. at 187. The objective

element is satisfied by a showing of "specific, concrete facts

12

that would lead a reasonable person in like circumstances to fear persecution." Id. at 187-88.

In holding that Chen and Yang failed to establish a wellfounded fear of future persecution, the IJ relied on a State Department report which provided: Generally, unless one of the parents is an "overseas Chinese" (i.e. has residency rights in another country), a family with a U.S.-born child or children receives no special treatment under family planning laws. In Fujian Province, for example, a family in which both parents are Chinese citizens would be expected to pay social compensation fees, may be required to pay extra tuition for "unauthorized" children attending school, and would be expected to conform to the restrictions in Chinese law on future offspring. U.S. diplomats in China are not aware of any cases in which returnees from the United States were forced to undergo sterilization procedures on their return. Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of

State, China: Profile of Asylum Claims and Country Conditions 26 (June 2004) [hereinafter "2004 State Department Profile"]. The

IJ also noted that the BIA--in an unpublished opinion which the IJ failed to cite--agreed with the State Department "that someone who had two children in the United States only had a speculative case in nature and, consequently, did not serve to present a viable asylum claim." findings. Immigration demonstrate (J.A. Judge, . . . at we a (J.A. at 201.) 3 ("[F]or agree the The BIA adopted the IJ's reasons the discussed by the to in

that

respondents of

failed

well-founded

fear

persecution

13

China.")); see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 152 (2d Cir. 2008) (noting that the BIA had relied on State

Department reports to conclude that the Chinese Government does not have a national policy of requiring forced sterilization of parents who return with a second child born outside of China). Chen and Yang contend that the IJ, as affirmed by the BIA, abused its discretion in concluding that they failed to

establish a well-founded fear of future persecution because: (1) the IJ relied on an unidentified, unpublished BIA decision; (2) the IJ relied on the 2004 State Department Profile, which was unreliable and not supported by substantial evidence; and (3) the IJ failed to consider evidence in the record. These failure to contentions cite to are without merit. BIA First, decision the is IJ's no

the

unpublished

of

consequence; the IJ relied on the reasoning of the unpublished BIA opinion and the BIA expressly adopted the IJ's reasoning in its review of this case. Second, as to the reliance on the 2004

State Department Profile, we have previously noted that "[a] State Department report on country conditions is highly

probative evidence in a well-founded fear case." United States I.N.S., 181 F.3d 538, 542 (4th

Gonahasa v. Cir. 1999).

Finally, having reviewed the record before us, we conclude that the IJ, as affirmed by the BIA, did in fact "consider[] the evidence of record" but chose to give weight to the 2004 State

14

Department Profile and the unpublished BIA opinion in finding that Chen and Yang had failed to establish a well-founded fear or persecution. (J.A. at 211.) In short, we simply cannot

conclude that the BIA's denial of asylum is "manifestly contrary to law." See 8 U.S.C.A. § 1252(b)(4)(C). Thus, we deny the

petition as to the BIA's denial of Chen's and Yang's asylum and withholding of removal claims. ("Because the burden of proof See Camara, 378 F.3d at 367 for withholding of removal is

higher than for asylum - even though the facts that must be proved are the same - an applicant who is ineligible for asylum is necessarily ineligible for withholding of removal . . . ."). 3

Chen and Yang also challenge the BIA's denial of their motion to remand for consideration of additional evidence--a copy of a May 2003 Changle City Administration Opinion, a 2003 Fujian Province Administrative Decision, and a July 1999 Q&A Handbook-- in light of Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006). The BIA concluded that the "the [additional] evidence which has been submitted . . . does not demonstrate that respondents' subjective fear of harm on account of their opposition to China's coercive population control policies is objectively reasonable." (J.A. at 3.) We have reviewed this claim and conclude that it is without merit. See In re S--Y--G--, 24 I. & N. Dec. 247, 256-57 (BIA 2007) (concluding that the 2003 Changle City Administration Opinion and the 2003 Fujian Province Administrative Decision "do not reflect any basis for fearing sanctions that would rise to the level of persecution" and that the 1999 Q&A Handbook "does not indicate that forcible sterilizations are mandated in Fujian Province after the birth of a second child"), petition for review denied, Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008); In re M--F--W--, 24 I. & N. Dec. 633, 644 (BIA 2008) (noting that the Guo documents "reflected general birth planning policies that did not specifically show any likelihood that the alien, or similarly situated Chinese nationals, would be persecuted as a result of (Continued) 15

3

C. We now turn to Chen's and Yang's claim that the BIA

improperly denied their applications for CAT relief.

To receive

protection under the CAT, the alien must show that "it is more likely than not that he or she would be tortured if removed to the proposed country is of removal." extreme 8 form C.F.R. of § 1208.16(c)(2) and inhuman is the

(2008)). treatment,"

Torture 8

"an §

cruel (2008),

C.F.R. inflicted

1208.18(a)(2) a person . .

that or at

"intentionally

on

.

by

instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." C.F.R. § 1208.18(a)(1) (2008). 8

In considering an application

for CAT protection, we consider "all evidence relevant to the possibility of future torture" including, but not limited to: past torture inflicted upon the applicant; the applicant's

ability to relocate to another area of the country where torture is unlikely; and gross, flagrant, or mass violations of human rights. denial 8 C.F.R. § 1208.16(c)(3) (2008). of CAT protection under the We review the BIA's highly deferential

substantial evidence test, Dankam v. Gonzales, 495 F.3d 113, 124 (4th Cir. 2007), and must deny the petition for review if the BIA's order is "supported by reasonable, substantial, and

the birth of a second child in the United States").

16

probative evidence on the record considered as a whole." v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Chen's torture as CAT a claim alleges of her that she fears of

I.N.S.

detention

and

result

violation

China's

one-child

policy, and Yang's CAT claim alleges that he fears detention and torture as a result of his leaving China illegally with the assistance of a snakehead. In rejecting these claims, the IJ

concluded, "[i]n regards to the Torture Convention, the State Department's Report is given full weight, in that it shows that the respondents would not be subject to sterilization. (J.A.

Therefore, the Court cannot consider a claim of torture." at 211.)

The BIA adopted this reasoning, concluding that Chen

and Yang "failed to demonstrate that it is more likely than not . . . that they would be tortured upon return to China." at 3.) Applying our deferential standard of review, we are (J.A.

constrained to deny Chen's and Yang's CAT claims. 2004 State Department Profile, to which the IJ

Here, the gave "full

weight," (J.A. at 211), noted that violations of family planning policy are "civil offenses and result in civil penalties" and are "not considered criminal offenses," 2004 State Department Profile emigrants 21. from And, the with United respect States, to the the return State of illegal

2004

Department

Profile stated as follows:

17

The Chinese Government accepts the repatriation of citizens who have entered other countries or territories illegally. In the past several years, hundreds of Chinese illegal immigrants have been returned from the United States, and U.S. Embassy officials have been in contact with scores of them. In most cases, returnees are detained long enough for relatives to arrange their travel home. Fines are rare. U.S. officials in China have not confirmed any cases of abuse of persons returned to China from the United States for illegal entry. 2004 State Department reports Profile 33. the We note of that State

Department

"are

usually

result

estimable

expertise and earnestness of purpose, and they often provide a useful and informative overview of conditions in the applicant's home country." Tian-Yong Chen v. United States I.N.S., 359 F.3d Thus, as in the asylum context, we

121, 130 (2d Cir. 2004).

find that "[a] State Department report on country conditions is highly probative evidence" in a case involving a CAT claim.

Gonahasa v. United States I.N.S., 181 F.3d 538, 542 (4th Cir. 1999); see also Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006) (noting that although profiles "[t]he do not observations automatically of State

Department

country

discredit

contrary evidence presented by the applicant, and . . . are not binding on the immigration court, they are probative

nonetheless" (internal quotation marks and citation omitted)). Chen and Yang contend that the IJ failed to consider a 2001 Amnesty International report stating that the use of torture is "widespread and systemic" in China, (J.A. at 477), and a 2001

18

news article about a Chinese woman who was allegedly beaten to death for refusing sterilization. Both the IJ and the BIA

considered this evidence, however, but simply found the 2004 State Department Profile more persuasive. This case is not one

in which either the IJ or the BIA "completely ignored" a "huge mass of evidence bearing on . . . whether he is more likely than not to be tortured if . . . forced to return to China" and "failed to give the issue a responsible analysis." Ashcroft, 379 F.3d 457, 461-62 (7th Cir. 2004). Lian v.

On the record

before us, substantial evidence supports the BIA's decision to deny CAT protection. Accordingly, we must deny the couple's

petition for review of the BIA's denial of their CAT claim.

III. For the foregoing reasons, we deny Chen's and Yang's

petition for review of the BIA's denial of their claims for asylum, withholding of removal, and protection under the CAT.

PETITION FOR REVIEW DENIED

19