Chen, Yuan Rong v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1126
YUAN RONG CHEN and YIN LIN,
Petitioners,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A 73-181-138 & A 74-974-123
____________
ARGUED DECEMBER 13, 2005—DECIDED AUGUST 8, 2006
____________
Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Chinese national Yuan Rong Chen
and his wife Yin Lin petitioned for asylum, withholding of
removal, and protection under the Convention Against
Torture, claiming that they feared persecution for resisting
the government’s one-child policy if forced to return to
China. Before the immigration judge (IJ), they argued that
Chen had suffered past persecution because: (1) he was
expelled from school for voicing opposition to the birth-
control policy, and (2) his former girlfriend was forced to
abort a pregnancy with his child. They also argued that
they both had a well-founded fear of future persecution
based on the fact that they had two children and wished to
have more. The IJ denied their petitions for asylum on all
2 No. 04-1126
three grounds, and the Board of Immigration Appeals (BIA)
affirmed. Chen and Lin now petition for review of the BIA’s
decision. Because the evidence they present does not compel
the conclusion that the BIA erred, we deny the petition.
I.
Chen and Lin are both from Fujian province, but they
entered the United States independently, on separate
occasions, and filed separate applications for asylum. While
their cases were pending in the immigration court, they
married and gave birth to two daughters. The cases were
consolidated before the final hearing on their asylum
claims.
A. Chen
Chen was admitted to the United States on a visitor’s visa
in 1992 and overstayed. He petitioned for asylum in 1993,
alleging that he was afraid to return to China because he
had engaged in “anti-government activities during [a]
student movement,” and because he had left the country
without permission. In a short statement appended to his
asylum application, he identified himself without elabora-
tion as an “opponent” of the one-child policy.
The Immigration and Naturalization Service did not act
upon his request for asylum until May 1996, when it
rejected his petition and initiated deportation proceedings.
Then, in September 1996, Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), which expanded the definition of “refugee”
to include, under the rubric of political opinion, persons who
were forced to abort a pregnancy or were involuntarily
sterilized, or who were persecuted for other resistance to a
“coercive population control program,” see 8 U.S.C.
§ 1101(a)(42). Attempting to take advantage of these
No. 04-1126 3
provisions, Chen filed a “supplemental statement of asy-
lum,” claiming that he was dismissed from school “for
spreading [anti-birth-control-policy] propaganda among the
students,” and that little more than a year after his expul-
sion, his then-girlfriend was ordered and actually compelled
by family-planning authorities to have an abortion. With
his supplemental statement, Chen submitted a disciplinary
warning from the school, his notice of expulsion, the order
from family-planning officials to have the abortion, and a
certificate attesting that his girlfriend had done so.
At the hearing before the IJ, Chen elaborated on his
statements about his expulsion from school and his girl-
friend’s abortion. He testified that his resolve to protest the
one-child policy stemmed from a class discussion in which
he voiced his disagreement with the policy and discovered
that others in the class agreed with him. Three days later,
he wrote an “article” on a blackboard in “the family plaza”
expressing his “indignation against this abortion and
sterilization” and got a number of his classmates to sign it
with him. The school’s administration warned him to stop
his “group activities,” but he refused. After writing three
more such “articles,” he was expelled from school.
The following year, according to Chen, he began a rela-
tionship with a woman named Li Ping. He testified that
they attempted to register for marriage but were refused a
license because they were underage. Li Ping then moved
into Chen’s family home, but in Chen’s own words, their
living together was “just a cohabitation.”
In the fall of that year, Li Ping became pregnant. Chen
and Li Ping decided that they wanted to have the baby.
Thinking they might be granted permission to marry
because of the pregnancy, and knowing they could not
receive a birth permit without it, they reapplied for a
marriage license. Instead they received a letter from the
“town government” demanding that Li Ping voluntarily
4 No. 04-1126
submit to abortion within ten days or she would be
“force[d]” to have one and they would both be fined as well.
As it happened, however, the family-planning authorities
did not wait ten days. While Chen was away, preparing
for them both to go into hiding, three family-planning
officials took Li Ping to the hospital to have the abortion.
Afterwards, Li Ping returned to live at her mother’s house.
Chen departed China approximately nine months later.
B. Lin
Lin entered the United States without a valid visa in
February 1996 and was immediately arrested. In her
first statement to immigration officials at her airport
interview, she said she had come to live with her father
(who came to this country seeking asylum in 1993) and that
she wanted “the opportunity to advance [her]self.” She
petitioned for political asylum in July, claiming that she
feared persecution because of her parents’ resistance to the
one-child policy and because her father had twice “tried to
escape from China.” She stated that her mother was forced
to have an abortion in 1980 and was later sterilized against
her will, and that her father was sterilized while in prison
in 1983 as punishment for attempting to leave the country.
At the hearing before the IJ, Lin testified that she came
to the United States because she wanted to avoid the
persecution her parents had suffered and because her
father had been seriously injured in a traffic accident and
needed her care. She did not contend that she herself
had suffered any harm under the one-child policy, but she
expressed fear that if returned either she or Chen would be
sterilized for violating the family-planning laws. Lin also
claimed that she sought asylum because she wanted to have
more children and because she was afraid of be-
ing imprisoned and fined for leaving the country illegally.
No. 04-1126 5
The IJ determined that neither Chen nor Lin had suffered
past persecution, and that together they failed to demon-
strate a well-founded fear of future persecution. He refused
to credit Chen’s account of his expulsion from school or his
former girlfriend’s forced abortion, and further determined
that his allegations, even if true, did not amount to persecu-
tion as a matter of law. In addition, the IJ rejected as too
speculative to be well founded both petitioners’ fears that
they would be subject to future persecution because of the
birth of their second child. The BIA agreed with the IJ that
Chen and Lin failed to meet their burdens of establishing
eligibility for asylum.
II.
Although the BIA did not affirm “without opinion” in the
terms of 8 C.F.R. § 1003.1(e)(4)(ii), because its opinion
contains no explanation of the basis for its decision, we
treat the IJ’s opinion as if it were that of the BIA. See
Dobrican v. INS, 77 F.3d 164, 167 (7th Cir. 1996); see also
Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004). We
review for substantial evidence, Mabasa v. Gonzales, 440
F.3d 902, 906 (7th Cir. 2006); Koval v. Gonzales, 418 F.3d
798, 804 (7th Cir. 2005), and will uphold the IJ’s determina-
tion that the petitioners are not eligible for asylum unless
we are compelled to conclude that they had the requisite
fear of persecution, INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992); Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir.
2006).
A. Adverse Credibility Determination
Chen and Lin first attack the IJ’s decision by arguing that
the IJ improperly dismissed Chen’s evidence of past
persecution. They contend that the IJ’s reasoning lacks
cogency because the inconsistencies he identified are
6 No. 04-1126
minor or easily explained—the sort of inconsistencies we
have considered insufficient to support an adverse credibil-
ity finding. See Shtaro v. Gonzales, 435 F.3d 711, 716 (7th
Cir. 2006); Lhanzom v. Gonzales, 430 F.3d 833, 848 (7th
Cir. 2005).
We agree that the inconsistencies are not significant. The
IJ’s primary concern appears to be that Chen “changed” his
“story” because he failed to mention in his initial asylum
application his former girlfriend’s abortion or his expulsion
from school. But a reasonable factfinder would have been
compelled to accept Chen’s explanations for the omissions.
First, when he filed his asylum application—in 1993, almost
three years before IIRIRA recognized an involuntary
abortion as a ground for asylum—he had no reason to think
mentioning Li Ping’s abortion might be important. Second,
he claimed that the paralegal who helped him complete his
asylum application told him that he did not “have to show
a lot of details, just some general abstract ideas.” The
abstract nature of the statement he attached to his asylum
application bears out this claim: the statement criticizes the
birth-control policy generally rather than describing his
experience of persecution. However, the outcome of this
case does not depend on the validity of the adverse credibil-
ity determination because Chen’s claims do not rise to the
level of persecution as a matter of law.
B. Past Persecution
Chen argues that he was persecuted on account of his
political opinion when he was expelled from school for
opposing the birth-control policy. Expulsion from school has
been accepted as one factor among several supporting a
claim of persecution. See Kimumwe v. Gonzales, 431 F.3d
319, 322 (8th Cir. 2005); Niam v. Ashcroft, 354 F.3d 652,
658 (7th Cir. 2004); Gao v. Ashcroft, 299 F.3d 266, 268 (3d
Cir. 2002). Considered as the sole basis of the claim,
however, at least in this case, it does not come close to
No. 04-1126 7
meeting the required standard. There is no statutory
definition of persecution, and the BIA has not yet developed
any definition of its own, see Haile v. Gonzales, 421 F.3d
493, 496 (7th Cir. 2005); Sahi v. Gonzales, 416 F.3d 587,
588-89 (7th Cir. 2005), but we have repeatedly held that
persecution must involve more than mere harassment or
mistreatment, see, e.g., Koval, 418 F.3d at 805. Chen does
not demonstrate that he sustained any harm at all from his
expulsion.
Chen also argues that he suffered past persecution
because Li Ping was forced to have an abortion. He points
to the Ninth Circuit’s decision in Ma v. Ashcroft, 361 F.3d
553, 561 (9th Cir. 2004), holding that the protections of
8 U.S.C. § 1101(a)(42) apply to “husbands” who are married
in traditional ceremonies but cannot legally register their
marriages because they or their spouses are underage.
Since Chen and Lin’s case was argued, we have joined the
Ninth Circuit in extending protection to spouses in cases
“[w]here 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.” See
Zhang v. Gonzales, 434 F.3d 993, 999 (7th Cir. 2006).
However, no court yet has recognized an unmarried male
partner like Chen as a “refugee” under § 1101(a)(42)’s
forced abortion and sterilization provisions, and two circuits
have held unequivocally that boyfriends do not qualify. See
Chen v. Ashcroft, 381 F.3d 221, 227-29 (3d Cir. 2004);
Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir. 2004)
(holding that “merely impregnating one’s girlfriend is not
alone an act of ‘resistance’ ”). But see Lin v. United States
Dep’t of Justice, 416 F.3d 184, 187 (2d Cir. 2005) (remand-
ing petitions to BIA for clarification “whether, when, and
why boyfriends and fiancés” may be protected). Like our
sister circuits, we decline to extend the definition of “refu-
gee” to reach boyfriends.
8 No. 04-1126
C. Well Founded Fear
For her part, Lin argues that while she has no claim of
past persecution, she has a well-founded fear of future
persecution because she has already borne more children
than the family-planning policy allows. But an asylum
applicant cannot prevail unless she can show both that
she subjectively fears persecution and that there is an
objectively reasonable possibility she will be persecuted. See
8 C.F.R. § 208.13(b)(2); Koval, 418 F.3d at 804-05. She must
show either that she will be “ ‘singled out’ ” for persecution
or that she is a member of a group against whom there has
been a demonstrated “ ‘pattern or practice of persecution.’ ”
Koval, 418 F.3d at 804-05 (quoting Capric v. Ashcroft, 355
F.3d 1075, 1085 (7th Cir. 2004)). Lin points only to her
parents’ sterilizations, and to State Department reports
reflecting that forced abortions and sterilizations “continue[
] to occur in some rural areas.” However, “generalized
evidence” in a country report is an “insufficient basis for
granting asylum,” see Rashiah v. Ashcroft, 388 F.3d 1126,
1133 (7th Cir. 2004); Selimi v. Ashcroft, 360 F.3d 736, 740-
41 (7th Cir. 2004), and Lin’s parents were sterilized many
years ago under circumstances bearing no relation to her
present circumstances, see Huang v. United States INS, 421
F.3d 125, 128-29 (2d Cir. 2005) (per curiam) (rejecting as
“too speculative” petitioner’s claim that she feared persecu-
tion for having two American-born children where claim
was supported only by country reports and vague testimony
that sister-in-law was forcibly sterilized).
Finally, both Chen and Lin argue that the IJ erred in
failing to consider their claims that they will be punished
for departing the country illegally. But they did not raise
this claim before the BIA; consequently, it is forfeited. See
Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006).
No. 04-1126 9
III. Conclusion
The petition for review is denied.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-06