Yi Chen v. Eric Holder, Jr. , 705 F.3d 624 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1623
Y I X IAN C HEN,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of a Decision
of the Board of Immigration Appeals.
No. A088-524-548
A RGUED N OVEMBER 2, 2012—D ECIDED JANUARY 18, 2013
Before M ANION, W ILLIAMS, and H AMILTON, Circuit Judges.
M ANION , Circuit Judge. Yi Xian Chen illegally entered
the United States in 2006. Shortly thereafter, his wife
gave birth to the couple’s second child in China. Chinese
authorities then forcibly sterilized her. In the United
States, Chen filed for asylum, withholding of removal,
and relief under the Convention Against Torture,
arguing that he suffered persecution when he learned
2 No. 12-1623
that his wife had been forcibly sterilized. The Depart-
ment of Homeland Security sought to remove Chen to
China. While his removal proceedings were pending,
Chen began practicing Falun Gong, and then supple-
mented his requests for relief from removal arguing that
he feared future persecution because of his Falun Gong
activities. Concluding that Chen had not suffered
past persecution and lacked a well-founded fear of
future persecution, an Immigration Judge denied Chen’s
requests for relief. The Board of Immigration Appeals
affirmed, and Chen petitioned this court for review.
Because the agency did not err, we deny Chen’s petition
for review.
I. Background
Chen and his wife, nationals of the People’s Republic
of China, had their first child in 2001. In 2003 and 2005,
Chen unsuccessfully attempted to enter the United
States to seek employment. In 2006, after his wife
became pregnant again, Chen illegally entered the
United States at the Mexican border. Some months later,
Chen’s wife gave birth to the couple’s second child
in China. Fearing persecution, Chen’s wife hid at her
uncle’s home. Nevertheless, Chinese authorities dis-
covered and forcibly sterilized her.
Subsequently, Chen filed a timely application for
asylum. Thereafter, the Department of Homeland
Security (“DHS”) initiated removal proceedings against
Chen.
No. 12-1623 3
In 2009, while his removal proceedings were pending,
Chen began practicing Falun Gong.1 He then added
his practice of Falun Gong as an additional basis for his
requests for asylum, withholding of removal, and protec-
tion under the Convention Against Torture. Chen
testified that he practices Falun Gong primarily in his
home, but that sometimes he practices outside. Chen
also testified that he reads materials and has passed out
fliers related to Falun Gong. Chen testified that if he
were sent back to China he would continue to practice
Falun Gong at his home or at a farm adjacent to his
house. During Chen’s testimony, the Immigration
Judge (“IJ”) asked him, “[W]hy couldn’t you go over to
China and practice Falun Gong inside your house?”
Chen responded, “Because if I were to practice outside,
I will be able to emit more energy.”
Based on news reports concerning Chinese authorities’
treatment of Falun Gong practitioners, Chen expressed
concern that he would be detained, beaten, and interro-
gated if he were returned to China. In support, Chen
offered reports from the State Department indicating
that the Chinese government harshly represses Falun
1
Chen testified that Falun Gong is not a religion but rather the
practice of certain physical exercises which contribute to his
mental, physical, and ethical well-being. See also Iao v. Gonzales,
400 F.3d 530, 532 (7th Cir. 2005) (“[Falun Gong’s] emphasis
is on spiritual self-perfection through prescribed physical
exercises . . . .”).
4 No. 12-1623
Gong.2 Falun Gong practitioners are specifically targeted
for arbitrary arrest, detention, and harassment. Detainees
have “credibly reported that officials used electric
shocks, beatings, shackles, and other forms of abuse.” The
State reports say that, according to estimates, at least
6,000 Falun Gong practitioners have been imprisoned
and almost 3,000 have died from torture since 1999.
Additionally, over 100,000 Falun Gong practitioners
have been subjected to “re-education” through labor
camps during the same time period. Leaders appear to
be treated most harshly. But even “the mere belief in the
discipline (even without any public manifestation of its
tenets) has been sufficient grounds for practitioners to
receive punishments ranging from loss of employment
to imprisonment.” We have had occasion to discuss
some of these reports previously. See Shan Zhu Qiu v.
Holder, 611 F.3d 403, 407-08 (7th Cir. 2010). We observed
that, while the reports indicate that most practitioners
of Falun Gong are punished administratively, the
reports also reveal that such punishment can be quite
harsh and may amount to persecution.3 Id.
2
See Dep’t of State, County Reports on Human Rights Practices
for 2008: China (includes Tibet, Hong Kong, and Macau) (Feb. 25,
2009); Dep’t of State, Int’l Religious Freedom Report 2007: China
(includes Tibet, Hong Kong, and Macau) (Sept. 2007); Dep’t of State,
County Reports on Human Rights Practices for 2006: China (includes
Tibet, Hong Kong, and Macau) (Mar. 6, 2007).
3
The DHS cites the International Religious Freedom Report
2007 for the proposition that Chinese authorities permit Falun
(continued...)
No. 12-1623 5
The IJ issued an oral decision concluding that Chen
could not establish past persecution or a well-founded
fear of future persecution merely based on his wife’s
forced sterilization. The IJ also concluded that Chen
failed to carry his burden of establishing a well-founded
fear of future persecution based on his practice of
Falun Gong. The IJ reasoned that Chen had not proved
a reasonable possibility of mistreatment because he
provided no explanation for why his practice would
likely come to the attention of Chinese authorities. The
IJ also denied Chen’s requests for withholding of
removal and protection under the Convention Against
Torture. Although Chen did not request it, the IJ granted
voluntary departure.
Chen appealed to the Board of Immigration Appeals.4
While his appeal was pending, Chen moved to remand
on the basis of new evidence. Specifically, Chen offered
undated photographs of himself at what he claimed to
3
(...continued)
Gong practitioners to perform Falun Gong activities in public
parks without interference apart from police observation.
But the DHS neglects to mention that this section of the
report only discusses the practice of Falun Gong in the special
administrative region of Macau—far from where Chen’s family
lives in Fuzhou. This omission makes the citation misleading.
4
Chen did not appeal the denial of his request for protection
under the Convention Against Torture to the Board. Thus, he
cannot—and does not—raise that issue here. See Raghunathan
v. Holder, 604 F.3d 371, 379 (7th Cir. 2010); Korsunskiy v.
Gonzales, 461 F.3d 847, 849 (7th Cir. 2006) (citing 8 U.S.C.
§ 1252(d)(1)).
6 No. 12-1623
be a Falun Gong rally and a letter, purportedly from
his wife, stating that Chinese authorities were aware of
his Falun Gong activities in the United States and
would imprison him if he returned.
The Board affirmed the IJ’s ruling. The Board observed
that the background country evidence, that is, the State
Department’s reports, does show that Falun Gong is
illegal in China and harshly suppressed by the Chinese
government. Nevertheless, the Board concluded that
Chen lacked a well-founded fear of future persecution
because he “did not testify that he could not continue to
[practice Falun Gong in his home] in China . . . .” Thus,
the Board found that Chen failed to “establish that
he would engage in activities upon his return to
China that would attract the attention of the
authorities, and that could result in harm rising to the
level of persecution . . . .”
Additionally, the Board denied Chen’s motion to
remand because it thought that the new evidence was
unreliable. The Board reasoned that the photographs
were undated and, further, that Chen did not provide a
foundation for them in his supporting affidavit. The
Board also found that the letter from Chen’s wife was
unsworn and uncorroborated, self-serving inasmuch as
the record indicated that Chen’s wife harbored a desire
to come to the United States, and from an interested
party who was not subject to cross-examination. The
Board did remand Chen’s removal proceedings, how-
ever, but did so solely to allow the IJ to provide Chen
with advisory statements that must accompany a grant
of voluntary removal.
No. 12-1623 7
Chen then sought review by this court. While this
appeal was pending, the IJ held a hearing on the remand
order. Chen did not request voluntary departure, and the
IJ reinstated the order of removal. That order has not
been appealed.
II. Discussion
Where, as here, the Board relies on the findings of the IJ
but adds its own analysis, we review the IJ’s decision as
supplemented by the Board’s additional reasoning.
Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir. 2010).
Legal conclusions are reviewed de novo, whereas factual
findings are only reviewed for substantial evidence.
Chen v. Holder, 604 F.3d 324, 330 (7th Cir. 2010). Under
the latter standard, we will only reverse if the evidence
compels a contrary result; we will not overturn the
agency’s findings merely because we might have decided
the case differently. Id.; see also Bueso-Avila v. Holder, 663
F.3d 934, 937 (7th Cir. 2011) (observing that reversal
is warranted only if the evidence is “ ‘so compelling that
no reasonable factfinder could fail to find the requisite
fear of persecution.’ ” (quoting I.N.S. v. Elias-Zacarias,
502 U.S. 478, 483-84 (1992))).
Chen advances two alternative challenges to the
agency’s denial of his requests for asylum and with-
holding of removal. Specifically, Chen contends that the
agency erred in ruling that he could not establish past
persecution based on his grief over his wife’s steriliza-
tion and the couple’s inability to have future biological
children. Alternatively, Chen argues that the agency
8 No. 12-1623
erred in holding that he could not establish a well-
founded fear of future persecution because of his
practice of Falun Gong. In addition, Chen contends that
the Board abused its discretion when it denied his
motion to remand for consideration of new evidence
related to his practice of Falun Gong.
A. Asylum and Withholding of Removal
The legal principles controlling Chen’s request for
asylum are well-established. “The Attorney General has
discretion to grant an alien asylum under the Immigra-
tion and Nationality Act if the alien qualifies as a ‘refu-
gee.’ ” Chen, 604 F.3d at 330 (quoting 8 U.S.C. § 1158(b)(1)).
“A refugee is a person who is unwilling or unable
to return to his 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.’ ” Id. (quoting 8 U.S.C.
§ 1101(a)(42)(A)). If Chen establishes that he suffered
past persecution for a protected reason, a presumption
arises that he also has a well-founded fear of future
persecution for the same reason. 8 C.F.R. § 208.13(b)(1).
If Chen cannot establish past persecution or if his fear
of future persecution is unrelated to any past persecu-
tion, he bears the burden of establishing that his fear
of future persecution is well-founded. Id. at (a), (b)(1),
(b)(2). This requires Chen to demonstrate “that his fear
of persecution is both ‘subjectively genuine and ob-
jectively reasonable.’ ” Chen, 604 F.3d at 330 (quoting
No. 12-1623 9
Bolante v. Mukasey, 539 F.3d 790, 794 (7th Cir. 2008)).
Chen can satisfy the objective prong of this standard
by presenting specific facts showing that there is a rea-
sonable possibility that he would suffer mistreatment
on account of a protected basis if he were returned to
China. 8 C.F.R. § 208.13(b)(2)(i)(B); Chen, 604 F.3d at 330
(quoting Sayaxing v. I.N.S., 179 F.3d 515, 520 (7th
Cir. 1999)).
Chen contends that he can establish past persecution
on account of his wife’s forced sterilization because he
wanted to have more children and suffered significant
emotional distress upon learning of her sterilization.
We do not discount the severity of Chen’s emotional
distress in light of his government’s heinous conduct.
But we have deferred to the Attorney General’s ruling
that an applicant cannot establish that he was persecuted
merely because his spouse was forcibly sterilized. See
Chen, 604 F.3d at 331 (citing Matter of J-S-, 24 I. & N. Dec.
520, 534-35 (BIA 2008)). Chen does not ask us to
reconsider our deference to Matter of J-S-. And to hold
that the emotional distress naturally arising from
a spouse’s forced sterilization amounts in itself to perse-
cution would be to effectively abrogate the Attorney
General’s ruling. We agree with the decisions of other
circuits, based on Matter of J-S-, that such emotional
distress is not enough. See Zhi Wei Pang v. Holder, 665
F.3d 1226, 1233 (10th Cir. 2012) (finding that the Board
did not err in concluding that emotional distress based
on a spouse’s forced sterilization and ectopic pregnancy
does not amount to past persecution); Shi Liang Lin
v. U.S. Dept. of Justice, 494 F.3d 296, 309 (2d Cir. 2007)
10 No. 12-1623
(holding that the “profound emotional loss” arising
from a spouse’s forced abortion does not in itself qualify
an applicant for “refugee” status). Emotional distress
based on a spouse’s forced sterilization does not fit
the definition of persecution used in this cir-
cuit—namely, “ ‘det ention, arrest, interrogation, pros-
ecution, imprisonment, illegal searches, confiscation of
property, surveillance, beatings, torture, behavior that
threatens the same, and non-life-threatening behavior
such as torture and economic deprivation if the
resulting conditions are sufficiently severe.’ ” Shan Zhu
Qiu, 611 F.3d at 405 (quoting Capric v. Ashcroft, 355
F.3d 1075, 1084 (7th Cir. 2004)). And Chen has not
offered any evidence that he was persecuted for resisting
China’s population-control program. See Matter of J-S-,
24 I. & N. Dec. at 537-38. In fact, Chen admitted that he
did not actively protest his wife’s sterilization, which
occurred after he left China, and that the Chinese gov-
ernment never targeted him while he was in China.
Consequently, the record does not compel a finding
that Chen suffered past persecution.
Because Chen did not suffer past persecution, he
carries the burden of proving that he has a well-founded
fear of future persecution. Chen contends that he has
a well-founded fear of persecution based upon his
recently acquired practice of Falun Gong.5 The DHS
5
It is unclear whether Chen is also arguing that he has a well-
founded fear of future persecution based on his wife’s forced
(continued...)
No. 12-1623 11
does not argue that a Falun Gong practitioner cannot
qualify for asylum or that Chen is not a bona fide
Falun Gong practitioner.6 Nor does the DHS dispute that
Chen’s fear of persecution is subjectively genuine. Thus,
the only question for us is whether the agency erred
in finding that Chen failed to meet his burden of
proving that his fear of persecution is objectively rea-
sonable.
The IJ and Board concluded that Chen did not establish
a reasonable possibility that he would be persecuted
because he failed to offer evidence that his practice of
Falun Gong in China would attract the attention of the
authorities. The record does not compel a contrary re-
sult. Chen testified that, if he were sent back to China,
he would practice Falun Gong at home or at a farm next
to his house.7 If Chen had testified that he planned to
practice Falun Gong at a public park, then a reasonable
fact-finder would be hard-pressed to reject the inference
that the authorities would likely become aware of
Chen’s practice. But such an inference does not neces-
5
(...continued)
sterilization. But Chen did not raise this argument before the
Board, so he is precluded from raising it here. See Raghunathan,
604 F.3d at 379; Korsunskiy, 461 F.3d at 849 (citing 8 U.S.C.
§ 1252(d)(1)).
6
The IJ found Chen’s testimony credible concerning his
practice of Falun Gong.
7
But Chen did not say that he intended to limit his practice
to these locations out of any concern that he might be
persecuted if he practiced elsewhere.
12 No. 12-1623
sarily follow from Chen’s testimony that he might
practice Falun Gong at a farm adjacent to his house.
Therefore, we cannot say that the evidence compels a
finding that Chen’s practice of Falun Gong in China
likely would attract the attention of the authorities and,
consequently, create a reasonable possibility of persecu-
tion. And Chen’s case is distinguishable from Shan Zhu
Qiu, where the alien, a Falun Gong participant, offered
credible evidence that Chinese authorities had come to
his house and he had been forced to escape by jumping
off a balcony, and that the authorities had served an
official summons on him at his home. 611 F.3d at 404.
The agency’s decision to deny Chen’s request for asylum
does not amount to error. Furthermore, because Chen
did not meet his burden of proof regarding his asylum
request, “it necessarily follows that he cannot make the
‘more stringent’ showing required to prove” that he is
entitled to withholding of removal. Soumare v. Mukasey,
525 F.3d 547, 552 (7th Cir. 2008) (quoting Shmyhelskyy
v. Gonzales, 477 F.3d 474, 481 (7th Cir. 2007)).
B. Chen’s Motion to Remand
Chen also contends that the Board abused its discre-
tion when it denied his motion to remand. Chen’s motion
was based on new evidence; specifically, photographs
of Chen at what he claimed to be a Falun Gong rally and
a letter, purportedly from his wife, stating that Chinese
authorities were aware of his Falun Gong activities in
the United States and would imprison him if he re-
turned. “We must affirm the Board’s denial [of a motion
to remand] ‘unless it was made without a rational ex-
No. 12-1623 13
planation, it inexplicably departed from established
policies, or it rested on an impermissible basis.’ ” Pop
v. I.N.S., 279 F.3d 457, 460 (7th Cir. 2002) (quoting Man v.
I.N.S., 69 F.3d 835, 837 (7th Cir. 1995)).
First, concerning the photographs offered by Chen, the
Board concluded that they were not reliable because
they are undated and Chen did not provide any descrip-
tion or foundation for them in his supporting affidavit.
We cannot say that this conclusion is irrational. Second,
with regard to the letter from Chen’s wife, the Board
concluded that it was not reliable because it was
unsworn and uncorroborated, self-serving, and from an
interested party who could not be cross-examined.
See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15
(BIA 2010), abrogated on other grounds by Hui Lin Huang
v. Holder, 677 F.3d 130 (2d Cir. 2012). It is unclear
whether Chen’s wife had access to any method whereby
she could authenticate her statements without alerting
Chinese authorities to the contents of her letter. Other
authentication certificates, attached to Chinese docu-
ments in the record, suggest that Chinese notaries are
government officials. See, e.g., AR 280, 289. Nevertheless,
because the statements are uncorroborated and the
record suggests that they are self-serving, we cannot say
that the Board’s decision was irrational. See Song Wang
v. Keisler, 505 F.3d 615, 622 (7th Cir. 2007) (finding no
abuse of discretion where the IJ afforded little weight to
a certificate from the applicant’s village committee,
stating that he must be sterilized upon return to China
on account of his two United States-born children,
because the certificate was unauthenticated and obtained
for the purpose of the hearing); Qin Wen Zheng v. Gonzales,
14 No. 12-1623
500 F.3d 143, 149 (7th Cir. 2007) (ruling that the Board
did not abuse its discretion in declining to consider
a foreign document that was questionable on its face,
unauthenticated, and supported only by a spouse’s af-
fidavit).
III. Conclusion
Substantial evidence supports the decision to deny
Chen’s applications for asylum and withholding of re-
moval. And the Board did not act irrationally in denying
Chen’s motion for remand. Therefore, we A FFIRM the
decision of the Board of Immigration Appeals, and D ENY
Yi Xian Chen’s petition for review.8
8
Our decision may have little impact on whether Chen is
actually removed from the United States. At oral argument,
counsel for the Attorney General stated that China generally
will not issue travel documents to an alien ordered removed
from the United States until all of the alien’s potential avenues
of relief are exhausted. And China has a well-documented
history of delaying or blocking repatriation of their nationals
who are illegally present in the United States. See Alison Siskin,
CRS Report for Cong., Immigration-Related Detention: Current
Legislative Issues 6 n.38 (Jan. 12, 2012); Office of Inspector Gen.,
Audit Report No. 06-33, Detention and Removal of Illegal Aliens 17
n.37 (Apr. 2006); Office of Inspector Gen., Audit Report No. 02-
41, Immigration and Naturalization Serv. Institutional Removal
Program 27 (Sept. 2002).
1-18-13