[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 2, 2009
No. 09-10832 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A074-855-742
FENG CHAI YANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 2, 2009)
Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
In her third appearance before us, Feng Chai Yang, a native and citizen of
China, petitions this Court to review the decision of the Board of Immigration
Appeals that dismissed Yang’s appeal of the denial of her applications for asylum
and withholding of removal. Yang argued that her verbal and physical resistance
to injections by Chinese officials and her removal of two intrauterine devices
implanted by Chinese officials qualified as “other resistance to a coercive
population control program.” INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). On our
first review of the Board’s decision, we remanded for the Board to address whether
Yang’s acts “could be construed as ‘other resistance.’” Yang v. U.S. Att’y Gen.,
418 F.3d 1198, 1205 (11th Cir. 2005). On our second review, we remanded for the
Board to reconcile inconsistent statements in its decision that followed our first
remand. Yang v. U.S. Att’y Gen., No. 06-15843 (11th Cir. Apr. 11, 2007). The
Attorney General argues that the record supports the decision of the Board that
Yang was not persecuted on account of her resistance to a coercive population
control program. We deny Yang’s petition to review the denial of her applications
for asylum and withholding of removal, but we remand the case for the Board to
consider Yang’s motion to reopen.
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I. BACKGROUND
Our discussion of the background is divided in two parts. We first revisit
Yang’s experiences in China and her flight to the United States. We next discuss
the decision of the Board on the second remand.
A. Yang’s Experiences in China and Entrance to the United States
Yang was born in Fuzhou City, China, and she later moved to the Fujian
province and was married. Yang, 418 F.3d at 1200. After the birth of Yang’s
daughter in 1991, family planning officials allegedly forced Yang to have an
intrauterine device inserted. Id. According to Yang, the device caused her
discomfort and problems with her menstrual cycle, and she engaged a private
doctor to remove the device. Id. Yang later discovered she was pregnant with a
second child and hid in another province of China to conceal the pregnancy from
family planning officials. Id. A month after Yang’s husband left China because he
was “fed up with the Chinese government,” Yang gave birth to a son. Id. Yang
testified that officials forced her to pay a fine for violating the population control
program. Id.
In 1996, Yang was forced to undergo a procedure that she referred to as an
“experimental medical sterilization.” Id. Yang alleged that five or six people,
including members of the police and family planning officials, came to her home
and forced her to go to a hospital for the procedure. Id. Yang alleged that she
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cried and shouted for the officials to release her as they forced her onto a hospital
bed. Id. When the doctor began the procedure, Yang allegedly told the doctor that
she was allergic to anesthesia and could not undergo the operation. Id. The doctor
explained to Yang that the procedure required an injection and would not require
anesthesia. Id.
The next year, after several women allegedly became pregnant after they
received the injection, officials returned to Yang’s home and arrested her for a
second injection. Id. Yang allegedly told the officials about her allergy to
anesthesia and, when given a small dose, Yang broke out in burning bumps all over
her body. Id. Yang alleged that she was forced to return to the hospital a month
later to have a second intrauterine device inserted. Id. The second device also
caused Yang discomfort. Id.
In 1998, Yang left her two children with her mother in China. Yang entered
the United States illegally through Canada and reunited with her husband in New
York, who was residing there illegally. Id. Yang then had the second intrauterine
device removed. Two years later, Yang became pregnant with a third child and
gave birth in the United States. Id.
B. The Second Remand to the Board
On the second remand, Yang argued that her struggle against the injections
based on her allergy to anesthesia qualified as “other resistance to a coercive
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population control program.” Yang also argued that her resistance to the injections
and removal of the intrauterine devices considered cumulatively established that
her resistance was based on her opposition to a population control program. Yang
moved the Board to remand her case to the immigration judge to accept further
testimony about Yang’s resistance and to consider whether Yang had a well-
founded fear of future persecution based on recent country reports that established
a change in country conditions. Yang attached to her brief the country reports for
China for 2004 through 2007.
The Board denied Yang relief and ruled that Yang had failed to prove either
that she resisted the population control program or that she was persecuted for
resistance to that program. The Board applied the two-part standard from its
decision in Matter of M-F-W- & L-G-, 24 I&N Dec. 633 (BIA 2008), that an alien
must prove that she resisted or refused to adhere to birth control methods required
by the government and the “claimed persecution [was] because of” that resistance.
Id. at 637–38. The Board found that Yang had resisted the injections because of
her allergy to anesthesia and Yang removed the first intrauterine device to end her
discomfort and side effects caused by the device, not to oppose the population
control program. The Board acknowledged that Yang’s removal of the first
intrauterine device while she was in China could be interpreted as “other
resistance” to the population control program, but the Board ruled that Yang was
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not persecuted for her removal of the device. Yang testified that she was fined for
the birth of a second child, but the Board found that the fine did not amount to
persecution. As to Yang’s removal of the second intrauterine device after she
entered the United States, the Board found that Yang failed to establish that she
would be persecuted for that removal when she returned to China. The Board did
not address Yang’s motion to reopen.
II. STANDARD OF REVIEW
We review the legal conclusion of the Board de novo. Al Najjar v. Ashcroft,
257 F.3d 1262, 1287 (11th Cir. 2001). We review the decision of the Board to
determine whether it is “‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Mohammed v. U.S. Att’y Gen.,
547 F.3d 1340, 1344 (11th Cir. 2008) (quoting Al Najjar, 257 F.3d at 1284). To
reverse those findings of fact, we must find that the record “‘compels a reversal;
the mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.’” Id. (quoting Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)). “[A]dministrative findings of
fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
III. DISCUSSION
Yang presents two issues for our consideration. First, Yang challenges the
denial of her application. Second, Yang argues the Board erred by failing to
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address her motion to remand to the immigration judge. We address each
argument in turn.
A. Yang Failed To Establish That She Qualifies as a Refugee Under the “Other
Resistance” Clause of Section 1101(a)(42).
The Immigration and Nationality Act provides that an alien who has been
forced to have an abortion, has been involuntarily sterilized, or has been persecuted
for refusing those measures or for other resistance to a coercive population control
program is entitled to asylum:
For purposes of determinations under this Act, 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.
8 U.S.C. § 1101(a)(42).
This Court has already decided, and Yang does not dispute, that she was not
forcibly sterilized. Yang, 418 F.3d at 1202–03. The only question that remains is
whether the Board erroneously ruled that Yang did not merit relief under the “other
resistance” clause. 8 U.S.C. § 1101(a)(42). This question requires that we address
whether Yang proved that she resisted the population control program and proved
that she was or will be persecuted for her resistance. See Lin v. U.S. Attorney
General, 555 F.3d 1310, 1316 (11th Cir. 2009); Yang v. U.S. Attorney General,
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494 F.3d 1311, 1318–19 (11th Cir. 2007); Huang v. U.S. Attorney General, 429
F.3d 1002, 1004–06 (11th Cir. 2005).
Substantial evidence supports the finding by the Board that Yang was not
persecuted for resistance to a coercive population control program. The record
establishes that Yang resisted the injections, but not the population control
program. Yang resisted the injections because of her allergy to anesthesia.
Moreover, Yang presented no evidence that she was persecuted on account of her
resistance. See Yang, 494 F.3d at 1318. Although Yang testified that officials
twice forced her to have intrauterine devices implanted, she did not state that she
resisted the procedures. The procedures also did not constitute persecution because
they were intended to implement the population control program and not to punish
Yang for any resistance to that program. See Huang, 429 F.3d at 1010. Even if we
assume that Yang’s removal of the first intrauterine device was an act of resistance,
Yang was not persecuted for that act. See Lin, 555 F.3d at 1316; Yang, 418 F.3d at
1203. Yang was fined instead for the birth of a second child. After Yang’s arrival
in the United States, she removed the second intrauterine device, but she failed to
offer any evidence that she will be persecuted for that act when she returns to
China.
B. Yang Is Entitled To A Decision About Her Motion To Remand.
An alien may move to reopen removal proceedings within 90 days after the
final administrative decision. 8 C.F.R. § 1003.2(c)(2). The deadline does not
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apply if the motion to reopen is based on changed circumstances in the country of
the alien’s nationality that were not known and could not have been presented at
the removal hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). If the
alien moves to reopen while an appeal is pending before the Board, the motion
“may be deemed a motion to remand for further proceedings before the Immigation
Judge” and “may be consolidated with, and considered by the Board in connection
with, the appeal to the Board.” 8 C.F.R. § 1003.2(c)(4).
The decision whether to consider the motion to reopen in conjunction with
an appeal rests with the Board. Yang moved the Board to remand so Yang could
introduce evidence not previously presented, but the Board failed to mention
Yang’s motion when it dismissed Yang’s appeal. Because the Board failed to
decide whether it would be appropriate to reopen the case, we “remand to the
[Board] for additional investigation or explanation.” INS v. Orlando Ventura, 537
U.S. 12, 16, 123 S. Ct. 353, 355 (2002).
IV. CONCLUSION
We AFFIRM the denial of Yang’s petition, and we REMAND to the Board
to consider Yang’s motion to remand.
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