10-505-ag
Chen v. Holder
BIA
Lamb, IJ
A099 662 056
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14th day of April,two thousand eleven.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 GUI MEI CHEN,
14
15 Petitioner,
16
17 v. 10-505-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24
25 FOR PETITIONERS: Ramesh J. Shrestha, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney General;
28 Linda S. Wernery, Assistant Director;
29 Thankful T. Vanderstar, Trial Attorney,
30 Office of Immigration Litigation, Civil
31 Division, United States Department of
32 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED, in part, and GRANTED, in part.
5 Petitioner Gui Mei Chen, a native and citizen of China,
6 seeks review of a January 15, 2010, order of the BIA
7 affirming the March 4, 2008, decision of Immigration Judge
8 (“IJ”) Elizabeth A. Lamb denying her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Gui Mei Chen, No. A099 662
11 056 (B.I.A. Jan. 15, 2010), aff’g No. A099 662 056 (Immig.
12 Ct. N.Y. City Mar. 4, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA decision. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
20 513 (2d Cir. 2009).
21 I. Forced Sterilization
22 Chen’s argument that the BIA erred in finding that she
2
1 failed to establish a well-founded fear of future
2 persecution based on the births of her two children is
3 foreclosed by this Court’s decision in Jian Hui Shao v.
4 Mukasey, 546 F.3d 138 (2d Cir. 2008). Contrary to Chen’s
5 argument, the record does not compellingly suggest that the
6 agency ignored any material evidence that she submitted in
7 support of her application. See id. at 169; see also Xiao
8 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d
9 Cir. 2006). Indeed, the BIA explicitly noted that it “ha[d]
10 considered the documentation [she] had submitted to prove
11 that the regulations of her locality are more coercive than
12 those of the national government.”
13 Because China’s family planning policy varies depending
14 on locality, the burden is on the applicant to establish
15 that she would personally suffer persecution on account of
16 her violation of the policy. Jian Hui Shao, 546 F.3d at
17 159-62. The BIA reasonably found that Chen did not
18 establish an objectively reasonable fear of persecution
19 because she did not meet this burden. While Chen argues
20 that evidence of general conditions in China establishes
21 that she faces sterilization, the agency reasonably
22 determined that this evidence did not suffice to show that
3
1 she faces future persecution in her locality. See id. at
2 159-65 (noting great variation in the implementation of
3 China’s family planning policy between localities). The
4 agency also reasonably found that the affidavits Chen
5 submitted, were not probative because they did not detail
6 the forced sterilizations of similarly situated individuals
7 as none of the individuals had returned to China with United
8 States born children or been forcibly sterilized after
9 giving birth to only two children. Id. at 160-61.
10 Although Chen testified that she was warned by family
11 planning officials that if she had another child she (or her
12 husband) would be sterilized, the warning did not
13 demonstrate that her fear of future persecution was
14 objectively reasonable because the family planning officials
15 did not indicate that the mandatory sterilization would be
16 performed by force if Chen refused to submit herself
17 voluntarily. See id. at 172. Thus, the agency’s
18 determination that Chen did not establish her eligibility
19 for asylum based on her fear of sterilization is supported
20 by substantial evidence. Accordingly, the petition is
21 denied with respect to this claim.
22
4
1 II. Forcible IUD Insertion
2 However, the agency’s determination that Chen did not
3 establish that she suffered past persecution based on the
4 forcible insertion of an intrauterine device (“IUD”), is
5 remanded in light of our decision in Mei Fun Wong v. Holder,
6 Dkt. No. 08-5328-ag (2d Cir Feb. 1, 2011).
7 To establish past persecution based on the forcible
8 insertion of an IUD, an asylum applicant must establish
9 that: (1) the IUD was inserted because of her resistance to
10 a family planning policy, or another protected ground,
11 rather than as a routine part of the population control
12 program; and (2) there were “aggravating circumstances.”
13 Xia Fan Huang v. Holder, 591 F.3d 124, 128-30 (2d Cir. 2010)
14 (according Chevron deference to the BIA’s decision in Matter
15 of M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008)).
16 In Mei Fun Wong, we remanded for the agency to
17 articulate standards for determining whether an asylum
18 applicant has established aggravating circumstances and to
19 clarify how it determines whether the applicant was
20 subjected to the forcible insertion of an IUD on account of
21 their resistance to China’s family planning policy, or other
22 protected grounds. Slip op. at 24-34.
5
1 For the reasons discussed in Mei Fun Wong, we cannot
2 evaluate the BIA’s determination that Chen did not establish
3 that she suffered past persecution when she was subjected to
4 the forcible insertion of an IUD. See id. at 24-34. The
5 BIA has yet to clarify whether it “categorically concludes
6 that nexus cannot be established by evidence that a person
7 who resisted a population control policy was compelled to
8 submit to a practice, such as IUD insertion, routinely
9 performed in furtherance of that policy.” Id. at 32. And
10 it has not yet addressed whether “aggravating circumstances
11 designed to compel submission . . . [can] demonstrate the
12 requisite nexus between that persecution and an applicant’s
13 opposition to the state’s population control policy.” Id.
14 at 33.
15 Moreover, Chen asserts that she established aggravating
16 circumstances based on the cumulative harm she suffered.
17 While the agency found that this mistreatment did not
18 constitute aggravating circumstances, “we cannot review the
19 Board’s decision that [her mistreatment did not constitute
20 aggravating circumstances] without a clearer understanding
21 of how [the BIA] weighed the [IUD insertion] itself
22 consistent with its obligation to consider all alleged harms
6
1 cumulatively.” Id. at 27.
2 Thus, we remand this case to the BIA for further
3 proceedings in light of Mei Fun Wong v. Holder, Dkt. No. 08-
4 5328-ag. Because we remand this case on other grounds, we
5 do not now address the agency’s determination that Chen
6 failed to establish a subjective fear of future persecution
7 based on her daughter’s return visit to China.
8 For the foregoing reasons, the petition for review is
9 DENIED, in part, and GRANTED, in part, the order of removal
10 is VACATED, and the case is REMANDED to the BIA for
11 proceedings consistent with this decision. Any pending
12 request for oral argument in this petition is DENIED in
13 accordance with Federal Rule of Appellate Procedure
14 34(a)(2), and Second Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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