Chen, Xiu Ling v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3980
XIU LING CHEN,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
____________
ARGUED MAY 3, 2007—DECIDED JUNE 11, 2007
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
RIPPLE, Circuit Judges.
EASTERBROOK, Chief Judge. Xiu Ling Chen has borne
two children since entering the United States illegally
in 2001. When caught, she requested asylum on the
ground that China had compelled her to have an abortion
in 1993. Involuntary abortion qualifies an immigrant as
a “refugee” under 8 U.S.C. §1101(a)(42)(B). At the hear-
ing before an immigration judge, however, Chen conceded
that her application and accompanying affidavit had
been false—that she had never undergone an abortion but
had committed perjury because she had been told that
the claim would help her remain in this country. Chen
2 No. 06-3980
now acknowledges that China did not mistreat her in any
way. Nonetheless, Chen asserts, she is entitled to asylum
because, having had two children, she will be sterilized
should she return to China. She says that she wants to
have additional children but that China will prevent this
forcibly.
The immigration judge rejected that contention, follow-
ing the State Department’s conclusion that China has
switched from physical coercion to economic incentives
as means of reducing the birth rate. That is indeed the
declared policy of China’s central government, though
Chen insists that many provincial officials do not follow
the national government’s rules. The Board of Immigra-
tion Appeals affirmed, largely relying on Matter of C- C-,
23 I&N Dec. 899 (BIA 2006). In that decision the Board
canvassed the evidence about population policy in
China—and in particular in Fujian, the province from
which Chen hails—and concluded that women who have
had children in the United States do not face a substan-
tial risk of either compulsory abortions or sterilization on
returning to China.
Chen maintains that the IJ and Board failed to evaluate
the credibility of persons who provided affidavits stat-
ing that they had heard of involuntary abortions or
sterilizations in Fujian. The Board is entitled, however, to
respond to the normal conditions in a nation or region, and
it need not change course every time an alien offers a
slightly different mix of evidence. Hearsay—and for that
matter accounts of personal experience, which may or may
not be truthful (Chen’s initial account of her own experi-
ence concededly was not honest)—has limited bearing
when the question is how a foreign nation as a whole
treats its citizens. Domestic experience illustrates the
point. American newspapers and television broadcasts
are full of stories about automobile crashes and murders,
but the mortality risk to any given person is tiny. Affida-
No. 06-3980 3
vits describing some auto accidents or shootings in Illinois
would not demonstrate that the risk from these events
in Illinois is substantial. Likewise affidavits relating
personal experiences or tales about sterilizations in Fujian
would not establish that a person in Chen’s position faces
a material risk that this would happen to her.
To determine whether an alien faces persecution in a
foreign land, the agency must separate normal from
exceptional events. In Matter of C- C- the Board tried to
do this with respect to Fujian’s family-planning policy.
That’s a sensible way to proceed. Indeed, we have strongly
urged the agency to do this, e.g., Banks v. Gonzales, 453
F.3d 449 (7th Cir. 2006); Sahi v. Gonzales, 416 F.3d 587(7th Cir. 2005), and are gratified to see that the process of
making risk assessments for particular groups and regions
as a whole is under way. Cf. Heckler v. Campbell, 461 U.S.
458 (1983) (holding that a similar approach for the
Social Security disability program is within the agency’s
discretion, and that having adopted rules based on the
normal effects of a condition the agency need not receive
evidence that a particular situation is exceptional).
Unfortunately, however, the decisions in Matter of C- C-
and Chen’s case got only part way. China may have
switched from physical to financial instruments, but how
substantial are the penalties for having what China
sees as too many children? We know from decisions
such as Maher v. Roe, 432 U.S. 464 (1977), and Rust v.
Sullivan, 500 U.S. 173 (1991), that incentives differ
from compulsion. Maher held that states may favor
childbirth over abortion by subsidizing the former but
not the latter, and that doing this does not offend the
rule that states may not place substantial burdens on
women who seek abortions. But these are modest incen-
tives; China’s may be more substantial. The State Depart-
ment’s latest country report says that “social compensa-
4 No. 06-3980
tion payments” as high as 10 years’ wages (of an average
worker) may be assessed against families that have a
third child. Is the threat of such a high payment equiva-
lent to “force”? The Board did not address that subject
in Matter of C- C- or Chen’s appeal.
Matter of T- Z-, 24 I&N Dec. 163 (BIA May 9, 2007),
picks up where Matter of C- C- leaves off. The Board
concluded in Matter of T- Z- that financial incentives
to have an abortion or undergo sterilization amount to
“force” when “a reasonable person would objectively
view the threats for refusing the abortion to be genuine,
and the threatened harm, if carried out, would rise to
the level of persecution.” 24 I&N Dec. at 168. Well,
what’s “the level of persecution”? Adopting language in
a committee report, the Board wrote that financial in-
centives become persecution when they amount to “the
deliberate imposition of severe economic disadvantage
or the deprivation of liberty, food, housing, employment
or other essentials of life.” Id. at 171. The Board wrapped
up:
Government sanctions that reduce an applicant to
an impoverished existence may amount to persecu-
tion even if the victim retains the ability to afford
the bare essentials of life. A particularly onerous
fine, a large-scale confiscation of property, or a
sweeping limitation of opportunities to continue
work in an established profession or business
may amount to persecution even though the appli-
cant could otherwise survive.
Id. at 174. A fine of 10 years’ income, imposed on someone
who makes the normal wage in China, reasonably may
be described as “particularly onerous.” The only practical
alternative would be to avoid having more children, if
necessary by abortion or sterilization.
That does not resolve matters in Chen’s favor, however,
because it remains essential to know China’s actual policy.
No. 06-3980 5
If the maximum lawful “social compensation payment”
is collected only from people who can afford it (say,
families that earn well above the average income or have
substantial wealth), then it need not be onerous. Again
consider the domestic situation. Some statutes au-
thorize fines of $1 million or more, well above 20 years’
income for an average wage-earner, but these are rarely
if ever levied on people who enjoy average or below-
average earnings. They are imposed only on those who
can afford to pay. The Board needs to decide (a) what
financial exactions normally are used in Fujian, and (b)
how these consequences should be classified under the
legal standard that separates inducement and encourage-
ment (allowed) from “force” (which our law treats as
persecution).
On remand the Board also must consider evidence now
before it as a result of Shou Yung Guo v. Gonzales, 463
F.3d 109 (2d Cir. 2006), and Jin Xiu Chen v. Gonzales,
468 F.3d 109 (2d Cir. 2006). The second circuit has in-
structed the Board to address the significance of a pam-
phlet issued by family-planning officials in Changle, a
substantial city (population about 700,000) in Fujian. A
translation of Changle’s family-planning handbook of-
fered to the second circuit stated that birth of a second
child would result in mandatory sterilization. If the
handbook is genuine and current, the translation accurate,
and the threat serious (as opposed to saber-rattling), this
would call into question the conclusion of Matter of C- C-
that Fujian no longer uses force in its family-planning
program. It would be especially important to Chen, who
lived in Changle before making her way to the United
States.
Matter of C- C- adopted through litigation a rule func-
tionally equivalent to the Grid developed by the Social
Security Administration via rulemaking. Both approaches
are ways to create binding principles of administrative
6 No. 06-3980
law. See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974);
American Hospital Ass’n v. NLRB, 499 U.S. 606 (1991).
One consequence of making one rule to cover every case,
however, is that a decision anywhere in the country
vacating and remanding for reconsideration likewise
may have national effect. The Solicitor General did not
seek certiorari in either Shou Yung Guo or Jin Xiu Chen.
Although the United States, not being affected by offen-
sive nonmutual issue preclusion, may insist that a rule
remain in force outside the circuit that made a decision,
see United States v. Mendoza, 464 U.S. 154 (1984), the
Attorney General did not invoke this entitlement either
at oral argument or by follow-up letter after the court
queried counsel about the effect of the second circuit’s
decision. We must take it, then, that the agency con-
cedes that reconsideration of the subject is essential. This
is not to say that reconsideration must come in Shou Yung
Guo or Jin Xiu Chen—or for that matter in this case. It
is only to say that the rug has been pulled out from
under the Board’s decision here, and until a new floor
covering is in place Chen is entitled to remain in this
nation.
The decision of the Board is vacated, and the matter is
remanded for further proceedings consistent with this
opinion.
RIPPLE, Circuit Judge, concurring. I concur in the
judgment of the court. I also join the court’s opinion ex-
cept with respect to its advice to the agency that it re-
structure its decision-making process to create rigid
categories for refugees that share certain ethnic or regional
No. 06-3980 7
characteristics. Equal treatment of similarly situated
persons is, of course, a goal of any civilized justice system
and, as the remainder of the court’s fine opinion quite
cogently demonstrates, that goal definitely has not been
achieved in this case. When it comes to restructuring the
agency process by which that goal is sought, however, the
decision should be made, in the first instance, by the
agency itself within whatever confines Congress desires
to establish for the exercise of agency discretion. While
individual members of the judiciary may have views on
how the agency can best perform, I believe that, as an
institution, we ought to refrain from such pronounce-
ments. Refugee policy is a most difficult and sensitive
issue, and individuals of great intelligence and vision have
wrestled with it for a very long time. Whether turning
the immigration process into a duplicate of the present
social security system is a silver bullet for resolving
problems that, up to now, have evaded resolution is a
question that we should leave to governmental entities
that are far more institutionally qualified. We are a case-
deciding institution and need to confine our institutional
pronouncements to that function.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-11-07