Xiu Rong Chen v. Holder

UNPUBLISHED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, Chief Judge, and TRAXLER and KING, Circuit
Judges.
Petition for review denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, and protection under the United Nations Convention
Against Torture (“CAT”). Chen’s and Yang’s asylum and
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 the forced IUD insertion was not persecution under the
1
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.” (J.A. at 244-
45.) Because Chen experienced “an irregular period and pain,”
she “had the IUD removed approximately 3 months after it was
fitted.” (J.A. at 974.) After removing the IUD, Chen was still
required to attend examinations every three months or so to
determine if she had become pregnant. Chen and her 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. Yang and his wife both left China in March 2001, but
his wife left a few days before Yang and, according to a
snakehead with whom Yang’s brother-in-law spoke, “was 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. That same month, Chen filed an application for
asylum with the 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.” (J.A. at 574.)
In fact, she knew two family members who had already been
sterilized. An asylum officer interviewed Chen in November
2004, and DHS initiated removal proceedings against her by
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. After Chen’s counsel informed the IJ that Yang
was also in removal proceedings, the IJ consolidated their
5
cases. The IJ held a hearing on February 23, 2006 and denied
all forms of relief to Chen and Yang. The BIA dismissed the
subsequent appeal on May 15, 2007. Chen and Yang timely
petitioned for our review of the BIA’s order. We possess
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)
(quoting 8 U.S.C.A. § 1252(b)(4)(B) (West 2005)). “We review de
novo legal questions determined by the BIA, . . . affording
appropriate deference to the BIA’s interpretation of the INA and
any attendant regulations[.]” Lin, 517 F.3d at 691-92 (internal
citations omitted). Where, 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. See Niang v. Gonzales, 492 F.3d 505, 511 n.8
(4th Cir. 2007).
6
Barb.
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, on account of his or her race, religion,
nationality, membership in a particular social group, or
political opinion. 8 U.S.C.A. § 1101(a)(42). If an 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 well-
founded fear of persecution in the applicant’s country of
nationality, or that the applicant could avoid future
persecution by relocating to another part of the applicant’s
country of nationality. Lin, 517 F.3d at 692-93; 8 C.F.R. §
1208.13(b)(1) (2008). 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.” (J.A. at 2.)
In Lin, we declined to 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.
2. “[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.
3. “[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.
9
 In this context, “the BIA should be accorded Chevron
deference as it gives ambiguous statutory terms concrete meaning
through a process of case-by-case adjudication.” 2 Aguirre-
Aguirre, 526 U.S. 415, 425 (1999) (internal quotation marks
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, reading the verb “sterilize” to mean “‘to make
sterile,’” which means “‘[i]ncapable of sexual reproduction’”
and concluding that “[t]his definition makes clear the
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, we certainly cannot say that its
interpretation is unreasonable, and we must 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 interpretation made by the administrator of an
agency.”).
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. There is no testimony that “[Chen’s]
procedure differed from 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. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004). 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 well-
founded 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.” (J.A. at 201.) The BIA adopted the IJ’s
findings. (J.A. at 3 (“[F]or the reasons discussed by the
Immigration Judge, we agree that the respondents failed to
demonstrate . . . a well-founded fear of persecution in
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 contentions are without merit. First, the IJ’s
failure to cite to the unpublished BIA decision is of no
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.” Gonahasa v.
United States I.N.S., 181 F.3d 538, 542 (4th 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. See Camara, 378 F.3d at 367
(“Because the burden of proof 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
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
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 of removal.” 8 C.F.R. § 1208.16(c)(2)
(2008)). Torture is “an extreme form of cruel and inhuman
treatment,” 8 C.F.R. § 1208.18(a)(2) (2008), that is
“intentionally inflicted on a person . . . by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8
C.F.R. § 1208.18(a)(1) (2008). 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. 8 C.F.R. § 1208.16(c)(3) (2008). We review the BIA’s
denial of CAT protection under the 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.” I.N.S.
v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Chen’s CAT claim alleges that she fears detention and
torture as a result of her violation of 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.
Therefore, the Court cannot consider a claim of torture.” (J.A.
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.” (J.A.
at 3.)
Applying our deferential standard of review, we are
constrained to deny Chen’s and Yang’s CAT claims. Here, the
2004 State Department Profile, to which the IJ 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 21. And, with respect to the return of illegal
emigrants from the United States, the 2004 State 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 Profile 33. We note that State
Department reports “are usually the result of 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
121, 130 (2d Cir. 2004). Thus, as in the asylum context, we
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 “[t]he observations of State
Department country profiles do not automatically 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.” Lian v.
Ashcroft, 379 F.3d 457, 461-62 (7th Cir. 2004). 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