Shou Jin v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1717
S HOU W EI JIN,
Petitioner,
v.
E RIC H. H OLDER, JR.,
Respondent.
On Petition for Review
from the Board of Immigration Appeals.
No. A078 848 890
SUBMITTED J ANUARY 14, 2009—D ECIDED JULY 14, 2009
Before C UDAHY, K ANNE, and T INDER, Circuit Judges.
C UDAHY, Circuit Judge. Shou Wei Jin petitions for
review of the final order of the Board of Immigration
Appeals affirming the Immigration Judge’s denial of his
claims for asylum and withholding of removal under the
Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.
Jin, a citizen of China, asserts that he is entitled to
refugee status based on the forced abortion of a woman
he claims to be his wife. We disagree and deny the petition.
2 No. 07-1717
I.
Shou Wei Jin is a native and citizen of China. Until he
was 18, Jin lived with his family in Fuzhou city in Fujihan
province. In 2001, he paid $8,000 U.S. dollars for a fake
passport and a plane ticket to the United States. He was
detained at Chicago’s O’Hare Airport and subsequently
petitioned for asylum.
Jin alleges that he fled China when a woman named
Yan Lin, whom he has described at various points as his
“girlfriend,” his “fiancée” and also as his “wife,” was
forced by the Chinese government to have an abortion.
According to Jin, he and Lin exchanged promises to
marry, and the couple’s families held a ceremony to
announce their marriage on January 2, 2001. However,
because they were underage, the couple was unable to
register their marriage with the Chinese government or
to obtain a “birth permit.” 1
In April 2001, a routine medical examination at a local
hospital revealed that Lin was pregnant. Shortly there-
after, according to Jin, she went to live with a relative in
another country out of fear that she would be forced to
have an abortion if her pregnancy were discovered. Jin
1
The minimum age for marriage in China is 22 for males and 20
for females. People who marry before the stipulated age
generally are not allowed to register the marriage or obtain
permission to have children. Lin-Zheng v. Atty. Gen., 557 F.3d
147, 149 n.2 (3d Cir. 2009) (citing U.S. State Department records).
Jin was 18 and Lin was 19 at the time of their purported mar-
riage ceremony.
No. 07-1717 3
gives the following account of what happened next: three
months after the couple learned of Lin’s pregnancy,
government officials came to Jin’s house looking for
Lin and threatening to arrest Jin. When Jin learned of this
visit, he stayed overnight with a friend and left Fuzhou
city the following day. After consulting with his parents,
Jin decided to flee for the United States. He made it as
far as Chicago, where he was detained by the INS. Lin
was not so lucky; she was caught by family planning
authorities and forced to terminate her pregnancy.
Jin conceded removability and petitioned for asylum
and withholding of removal.2 The IJ denied Jin’s petition.
First, the IJ found that Jin was not actually married to
Lin. Second, the IJ found that Jin had not shown that
underage husbands of pregnant wives suffer persecution
because of China’s family planning policy. The BIA
affirmed the IJ’s finding that Jin and Lin were not
married without comment, and also found that Jin had not
shown that he had a well-founded fear of future persecu-
tion due to his resistance to China’s population control
policies.
2
Jin also petitioned for relief under the Convention Against
Torture. However, he concedes that this claim was not devel-
oped below. We therefore deny Jin’s claim under the Conven-
tion Against Torture without discussion, and limit our inquiry
to Jin’s claim that he is a refugee.
4 No. 07-1717
II.
Both asylum and withholding of removal require the
petitioner to demonstrate, at a minimum, that he has a
legitimate fear of persecution. However, the standard
for withholding of removal is higher, requiring the peti-
tioner to show a “clear probability” of persecution. See
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Zeqiri v.
Mukasey, 529 F.3d 364, 370 (7th Cir. 2008). Accordingly,
we begin our analysis with Jin’s asylum claim; if he
cannot show that he is entitled to asylum, then a fortiori he
cannot show that he is entitled to withholding of removal.
We review the denial of asylum for substantial evidence,
upholding the denial of relief so long as it was “supported
by reasonable, substantiated, and probative evidence on
the record considered as a whole.” 8 U.S.C. § 1105a(a)(4);
Elias-Zacarias, 502 U.S. at 481; Toptchev v. INS, 295 F.3d
714, 720 (7th Cir. 2002). Where, as here, the BIA adopts
the IJ’s reasoning and offers additional commentary, we
review the IJ’s decision as supplemented by the BIA.
Binrashed v. Gonzales, 502 F.3d 666, 670 (7th Cir. 2007).
Congress has given the Attorney General the discretion-
ary authority to grant asylum to an alien who qualifies
as a “refugee” because he or she “is unable or unwilling
to avail himself or herself of the protection of [his or her
native country] because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42). At issue is whether Jin
qualifies as a “refugee” entitling him to asylum under
section 601(a) of the Illegal Immigration Reform and
No. 07-1717 5
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208 (codified at 8 U.S.C. § 1101(a)(42)(B)), which
provides:
[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.
Jin argues that he qualifies as a “refugee” under this
provision because (1) he was Lin’s husband, and therefore
(2) Lin’s persecution can be imputed to him. Jin’s first
claim points to troubling issues regarding the IJ’s deci-
sion. However, Jin’s second claim is clearly foreclosed by
settled law.
As to Jin’s first point, there was a fair amount of record
evidence that he and Lin were not actually married. First,
Lin referred to Jin as her fiancé in a letter addressed to
the IJ. Second, Jin himself initially indicated that he was
not married on his asylum application. Indeed, during
the proceeding itself, Jin characterized his marital status
as “Single, but I’m engaged.” Thus, while Jin went on to
testify that he was actually married to Lin and that the
couple was not permitted to register their marriage be-
cause they were underage, the IJ was not required to
credit this inconsistent testimony.
6 No. 07-1717
However, the IJ did not explicitly find that Jin’s testi-
mony that he was married to Lin was non-credible. In-
stead, the IJ somewhat puzzlingly held that Jin was
required to prove that Chinese law recognizes the existence
of common-law marriage. The IJ’s conclusion—and
thus, the BIA’s decision adopting this conclusion—is
incorrect as a matter of law. A common-law marriage
is one that takes legal effect without license or ceremony.
Black’s Law Dictionary 986 (7th ed. 1999). A “traditional
marriage,” by contrast, occurs when a couple has a mar-
riage ceremony but is unable to register their marriage.
E.g., Zhao v. Holder, No. 07-4117, 2009 WL 1659374, at *1
(6th Cir. June 16, 2009). “Where a traditional marriage
ceremony has taken place, but is not recognized by the
Chinese government because of the age restrictions in
the population control measures, that person neverthe-
less qualifies as a spouse for purposes of asylum.” Zhang
v. Gonzales, 434 F.3d 993, 999 (7th Cir. 2006) (citing Ma
v. Ashcroft, 361 F.3d 553, 558-61 (9th Cir. 2004)). In the
present case, Jin’s affidavit states that “my parents orga-
nized a small scale banquet to announce the marital
union between Yan Lin and me to members of two fami-
lies. From then on, Yan Lin and I started living together
at our home.” While the IJ was not legally required to
credit this claim, he was not entitled to disregard it
based on the conflation of two separate forms of
marriage, or on erroneous assumptions concerning Jin’s
burden of proof.
Although the IJ’s legal error gives us pause—and a
different record may well have justified a remand—a
remand would be futile in this case because Jin presented
No. 07-1717 7
no evidence that he personally suffered persecution as a
result of China’s population control policies. Instead, Jin
initially suggested that he is entitled to asylum based on
Lin’s persecution under Matter of C-Y-Z-, 21 I. & N. Dec.
915 (BIA 1997) (en banc), which held that spouses of
victims of forced abortions, as well as the victims them-
selves, are automatically eligible for asylum under
IIRIRA section 601(a). Id. at 919-20. After Jin perfected
his appeal, however, the Attorney General overruled
Matter of C-Y-Z-. See Matter of J-S-, 24 I. & N. Dec. 520, 523-
24 (BIA 2008) (“spouses are not entitled to the same per se
refugee status that [§ 1101(a)(42)(B)] expressly accords
persons who have physically undergone forced abortion
or sterilization procedures.”). Under the Attorney Gen-
eral’s current policy, in order for a spouse who has not
physically undergone a forced abortion or sterilization
to qualify as a refugee under § 1101(a)(42)(B), he or she
must show persecution or a well-founded fear of future
persecution based on his or her “failure or refusal” to
undergo such a procedure or “other resistance” to a
coercive population control program. Id. at 537-38.
The procedural history of Matter of J-S- is worth recount-
ing. Prior to IIRIRA, the BIA had held that victims of
involuntary abortions and sterilizations would not be
entitled to asylum “[t]o the extent . . . that such a policy
is solely tied to controlling population, rather than as
a guise for acting against people for reasons protected
by the [INA].” Matter of Chang, 20 I. & N. Dec. 38, 44 (B.I.A
1989). Congress enacted IIRIRA for the express purpose
of overturning this policy. See H.R. Rep. No. 104-469(I), at
8 No. 07-1717
173 (1996) (“The primary intent of [this section] is to
overturn several decisions of the [BIA], principally
Matter of Chang and Matter of G-.”).
Understanding Congress to have intended to liberalize
immigration policy for those affected by their home coun-
try’s coercive population control programs, the BIA
initially interpreted IIRIRA as providing per se refugee
status not only to persons who have physically under-
gone forced abortion or sterilization procedures, but
also to the spouses of such persons. See Matter of C-Y-Z-, 21
I. & N. Dec. at 919-20. Most circuits followed the BIA’s
interpretation of IIRIRA. See, e.g., Lin-Jian v. Gonzales,
489 F.3d 182, 188 (4th Cir. 2007); Chen v. Gonzales, 457
F.3d 670, 674 (7th Cir. 2006); Hong Zhang Cao v. Gonzales,
442 F.3d 657, 660 (8th Cir. 2006); Tai v. Gonzales, 423 F.3d 1,
4 (1st Cir. 2005); Zhang v. Ashcroft, 395 F.3d 531, 532 (5th
Cir. 2004); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir.
2003). But the Second Circuit did not, holding that the
BIA’s interpretation of IIRIRA was contrary to the plain
language of the statute. See Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296, 314 (2d Cir. 2007) (en banc).
Ultimately, the Attorney General adopted the Second
Circuit’s view. Exercising his authority pursuant to
8 C.F.R. § 1003.1(h)(1)(i), the Attorney General overruled
the BIA’s decision in Matter of C-Y-Z-, 21 I. & N. Dec. 915
(BIA 1997) (en banc). Two circuits have since upheld the
Attorney General’s interpretation of IIRIRA. See Lin-Zheng
v. Att’y Gen., 557 F.3d 147, 156-57 (3d Cir. 2009) (en banc);
Yu v. U.S. Attorney General, No. 08-16068, 2009 WL 1457102,
at *4 (11th Cir. May 27, 2009).
No. 07-1717 9
The Attorney General’s decision in Matter of J-S- is
dispositive of the present case. In commenting on the IJ’s
decision here, the BIA noted that Jin’s
conduct relevant to the coercive population control
policy includes impregnating his underage girl-
friend, requesting a “birth control permit,” and hiding
when he heard that his girlfriend was taken by the
cadre. [Jin] did not otherwise claim to have expressed
opposition or resistance to his girlfriend’s abortion
or the family planning regime. “Merely impregnating
one’s girlfriend does not constitute an act of resistance
under the family planning laws . . .”
While this commentary stretches the factual record, there
is no question that Jin did not present any evidence that
he suffered persecution—or that he will suffer persecu-
tion—as a result of any acts of resistance in which he
engaged. For instance, there was no evidence that Jin
expressed opposition to China’s policies or otherwise
attempted to interfere with the enforcement of those
policies. Cf. S-L-L-, 24 I. & N. Dec. 1, 10 (BIA 2006). To the
contrary, Jin himself admits that he fled rather than
attempting to resist.
In his reply brief, Jin claims that the Attorney General’s
interpretation of IIRIRA Section 601(a) is unreasonable.
However, Jin gives no real argument in support of this
claim. Instead, he states in a conclusory fashion that the
Attorney General’s interpretation is unreasonable as an
intuitive matter and inconsistent with Congress’s legisla-
tive intent. Neither of these claims is adequately devel-
10 No. 07-1717
oped,3 so both are waived. See Campania Mgmt. Co. v. Rooks,
Pitts & Poust, 290 F.3d 843, 852 n.6 (7th Cir. 2002). At
any rate, Jin’s suggestion that the Attorney General’s
interpretation is unreasonable is highly dubious. Two
circuits have held that the Attorney General’s interpreta-
tion is the only reasonable interpretation of IIRIRA. Thus,
it seems likely that this interpretation constitutes a “per-
missible construction of the statute.” Chevron U.S.A., Inc.
v. NRDC, 467 U.S. 837, 843 (1984).
Jin also invites us to use our equitable power to apply
the BIA’s previous interpretation of IIRIRA nunc pro tunc
to his asylum claim. However, the purpose of the nunc pro
tunc doctrine is “to return aliens to the position in which
they would have been, but for a significant error in their
immigration proceedings.” Edwards v. I.N.S., 393 F.3d
299, 308-09 (2d Cir. 2004) (Calabresi, J.) (emphasis added).
A change in an agency’s interpretation of the law does not
constitute a “significant error” that justifies the exercise
of our nunc pro tunc powers. See Yu, 2009 WL 1457102, at
*5 (“Once the Attorney General clarified the meaning of
§ 1101(a)(42)(B) in Matter of J-S-, that decision became
the controlling interpretation of the law and was entitled
to full retroactive effect in all cases still open on direct
review, regardless of whether the events predated the
Attorney General’s decision.”).
3
For instance, Jin does not actually point to any legislative
history that supports his claim the Attorney General’s inter-
pretation is contrary to Congress’s intent.
No. 07-1717 11
In short, there was substantial evidence in support of
the BIA’s conclusion that Jin had not shown that he
himself was eligible for relief under IIRIRA section 601(a).
The petition for review is, therefore, D ENIED.
7-14-09