Chen, Xiong v. Keisler, Peter D. , 245 F. App'x 558 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 7, 2007
Decided August 24, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 06-4002
XIONG CHEN, Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A77 957 265
ALBERTO R. GONZALES,
Respondent.
ORDER
Xiong Chen, a native and citizen of China, arrived in the United States in
2001. He requested asylum, withholding of removal, and relief under the
Convention Against Torture (CAT), claiming that he was fired from his teaching
position because he expressed his political opinion against corrupt government
officials and violated Chinese population control policies. He also claimed that his
girlfriend was forced to abort her pregnancy. The Immigration Judge denied the
requested relief because Chen neither suffered past persecution nor had a
reasonable fear of future persecution. Chen appealed, but the Board of Immigration
Appeals dismissed the appeal. Because Chen cannot establish past persecution nor a
likelihood of future persecution, we deny the petition.
No. 06-4002 Page 2
Chen applied for asylum in 2002, several months after arriving in the United
States without proper documentation. Because the IJ found Chen credible, the facts
to which he testified are undisputed. See Zhu v. Gonzales, 465 F.3d 316, 318 (7th
Cir. 2006). He testified that he worked as a teacher in a middle school in Fujian
province and belonged to the communist party. He entered into an intimate
relationship with a student at his school’s “senior department,” and impregnated her.
Chen testified that he and the student had a small, “traditional” marriage ceremony,
but they were never legally married because the woman’s parents disapproved of
their relationship. When the woman told her mother that she had given birth to a
child, her mother reported the couple to government authorities for violating the
government’s birth-control policies.
Several months after the ceremony, Chen was involved in a dispute at the
school. The dispute arose when Chen’s father witnessed the principal’s brother
stealing school equipment—an incident that Chen’s father reported to school
officials. In retaliation the principal’s brother assaulted Chen’s father, and Chen
reported the assault to school authorities. When the principal learned that Chen
reported the incident, he suspended Chen from his teaching duties for “slandering” a
communist party member as well as violating the government’s birth-control policies.
To avoid the authorities, Chen and his girlfriend went into hiding, during
which time they conceived another child. When family-planning authorities
discovered the second pregnancy, they told Chen’s parents that he would be subject
to “heightened penalties” unless his girlfriend submitted to an abortion. Two weeks
later, the school fired Chen. Because Chen feared the consequences he would face if
his girlfriend did not submit to an abortion, he decided to leave China for the United
States. Chen has since learned from his parents that his girlfriend was forced to
abort her pregnancy.
The IJ determined that Chen failed to establish either past persecution or a
well-founded fear of future persecution, and therefore denied his request for asylum,
withholding of removal, and relief under CAT. The IJ first concluded that Chen
could not show persecution based on the loss of his job. Even if this was a
persecutory act, the IJ continued, it was not on account of political opinion because
Chen was fired due to the principal’s “personal animus” after Chen reported his
brother. With regard to the abortion, the IJ noted that Chen and his girlfriend were
never legally married and that, while a spouse may be entitled to asylum based on
his wife’s involuntary abortion, an unmarried boyfriend is not.
No. 06-4002 Page 3
The BIA dismissed Chen’s appeal. The BIA noted its recent decision in
Matter of S-L-L-, 24 I & N Dec. 1 (2006), in which it determined that unmarried
aliens requesting asylum based on a partner’s coerced abortion qualify for asylum
only if they were persecuted for “other resistance” to the birth-control policies,
including expressions of general opposition, attempts to interfere with enforcement of
government policy in particular cases, and other overt forms of resistance to the
requirements of the family planning law.” Id. at *23. The BIA concluded that Chen
had not demonstrated the requisite “other resistance” to the policy. The BIA also
stated that it was not persuaded that Chen’s treatment was on account of a protected
ground.
In his petition for review Chen first argues that the IJ erred by concluding
that he was fired because of a personal dispute with the principal, rather than on
account of political opinion. He contends that the IJ failed to recognize that he was
also fired for his role in exposing political corruption—a role he undertook when he
reported the principal’s brother, a communist party member.
We review the BIA’s order for substantial evidence supporting the decision.
Tandia v. Gonzales, 487 F.3d 1048, 1052 (7th Cir. 2007). A person is entitled to
asylum by demonstrating either past persecution or a well-founded fear of future
persecution based on one of several factors including expression of political opinion.
8 U.S.C. § 1101(a)(42)(A). Aliens must show either that they “publicly expressed”
their political opinion through speech in the political arena or that the government
had reason to believe they would do so in the future. Li v. Gonzales, 416 F.3d 681,
685 (7th Cir. 2005).
Substantial evidence supports the IJ’s decision that Chen did not express a
political opinion when he reported the principal’s brother. Chen merely reported the
principal’s brother to school officials, and we have ruled that reporting misconduct
within the chain of command is not an expression of political opinion under
§ 1101(a)(42)(A). Musabelliu v. Gonzales, 442 F.3d 991, 995-96 (7th Cir. 2006)
(ruling that an alien who reported smuggling and theft of public supplies to his
superiors “within the chain of command” did not express a political belief because the
alien did not take his concerns “to the public in quest of a political decision.”)
Chen next contends that the BIA failed to recognize that he was persecuted
when the school fired him for resisting China’s coercive population control
policies–namely by having a child without registering his marriage and then hiding
from authorities. It is true that severe state-sanctioned economic deprivation can
constitute persecution, Medhin v. Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003), but
No. 06-4002 Page 4
Chen alleged only that he was fired from his job, and we have held that being fired
from a job, even if it is discriminatory, does not constitute persecution. Id.;
Musabelliu, 442 F.3d at 994. Although Chen also claims that he was persecuted
when family-planning authorities threatened him with “heightened penalties,” we
have repeatedly held that vague, unfulfilled threats like this one generally do not
compel a finding of past persecution. Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir.
2006); Ahmed v. Ashcroft, 348 F.3d 611, 616 (7th Cir. 2003).
Finally, Chen contended at oral argument that the BIA erred in deciding that
he did not qualify for asylum as the unmarried boyfriend of a woman who was forced
to abort a pregnancy. However, Chen failed to raise this argument in his brief to this
court, and it is waived. Asere v. Gonzales, 439 F.3d 378, 381 (7th Cir. 2006). Even if
we could decide the question, Chen could not prevail. Unmarried boyfriends of
women who are forced to have abortions do not qualify as refugees. See Zhu, 465
F.3d at 321.
Accordingly, we DENY Chen’s petition for review.
ROVNER, Circuit Judge, concurring. I agree with the majority's resolution of
the issues presented to this court. I write separately only to note that the last
sentences of the order are dicta as we determined that the issue is waived. In Zhang
v. Gonzales, 434 F.3d 993, 999 (7th Cir. 2006), we recognized that the amendment
concerning forcible abortions protected spouses where a traditional marriage
ceremony had taken place but a legal marriage was not possible because of China’s
restrictive population control measures. At the other extreme, in Zhu v. Gonzales,
465 F.3d 316, 321 (7th Cir. 2006) we recognized that protection did not extend to
someone who was a mere boyfriend, where there had been no marriage ceremony of
any kind nor even a suggestion that they planned to wed. Chen’s situation, had it
been properly presented, would have fallen in the middle, as it is undisputed that he
had a traditional marriage ceremony, but he did not obtain the stamp of government
approval. This court has not yet determined whether a spouse for purposes of
protection under the amendment, can include a person who is married in a
traditional or religious ceremony, but not legally married. We should decide that
only after it is fully briefed and argued, and not in a cursory reference in a case in
which it is not raised.