[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 29, 2005
No. 03-16068
THOMAS K. KAHN
________________________ CLERK
Agency No. A74-855-742
FENG CHAI YANG,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 29, 2005)
Before EDMONDSON, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
Feng Chai Yang (“Yang”), a native of the Fujian province of China, seeks
asylum in this country on the basis of her resisting China’s one-child policy. Yang
now petitions us to review the Board of Immigration Appeals’ (“BIA’s”) decision
affirming the Immigration Judge’s (“IJ’s”) order denying Yang’s application for
asylum and withholding of removal under the Immigration and Nationality Act
(“INA”) and the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). We first must
determine whether the IJ made an adverse credibility finding against Yang. If we
find that the IJ did not make such a finding, we will address whether Yang’s acts of
resistance to China’s family policies make her eligible for asylum in the United
States.
I. FACTS AND PROCEDURAL HISTORY
Yang was born on July 3, 1970 in Linjian (phonetic sp.), Fuzhou City, in
China. She then moved to the Fujian province where she married Jian Guo Zhang
(“Zhang”) in 1990. Following the birth of her daughter in May 1991, she claims
that the Chinese government forced her to have an intrauterine device (“IUD”)
inserted. Because the IUD caused her to have discomfort and problems with her
menstrual cycle, she engaged a private doctor to remove the IUD. Shortly
thereafter, she discovered that she had become pregnant again. In March of 1992,
2
she decided to go into hiding in Guandxi so that she could conceal the pregnancy
from the Chinese Birth-Control Officials (“Officials”). When she failed to go to
governmentally imposed check-ups, the Officials harassed her family. Her
husband left China in October of 1992. Yang gave birth on November 7, 1992 to a
son and was forced to pay a fine for violating China’s birth-control policy.
In March of 1996, Yang claims that she and many other women were
unwillingly and forcibly subjected to “experimental medical sterilization.” She
maintains that five or six people, including members of the police and officers
from the family planning office, pulled her out of her home and brought her into a
hospital where she was forced onto a hospital bed as she cried and shouted for
them to let her go. She claims that they were about to perform a sterilization
operation when she stated that she was allergic to anesthesia and, therefore, could
not undergo the operation. In response, the doctor told her that she would undergo
an “injection sterilization” which would not require anesthesia.
Apparently, because other women who had undergone similar
“sterilizations” were still getting pregnant, the Officials returned to her home in
1997 and arrested her for a second “sterilization.” She claims that she again told
them about her allergy to anesthetics, and when they tested it by giving her only a
small amount she broke out in burning bumps all over her body. She was forced to
3
return for another IUD insertion a month later. Again, she claims that the IUD
caused her discomfort.
Yang engaged the aid of a smuggler to help her escape China. On
September 18, 1998, the smuggler assisted her in entering the United States
through Canada. She then went to New York to join her husband, who was already
residing there illegally. After Yang arrived in the United States, an American
gynecologist removed her IUD and discovered that she suffered from an ovarian
cyst. Once the IUD was removed, Yang became pregnant with a third child and
gave birth in the United States.
The former INS 1 served a Notice to Appear on Yang, charging her with
being removable under section 212(a)(6)(A)(i) of the INA, 8 U.S.C. §
1182(a)(6)(A)(i), as an alien present in the United States without having been
admitted. Yang sought asylum, asserting that she had been persecuted for resisting
China’s family-planning policies.
After an evidentiary hearing, the IJ concluded that Yang had failed to sustain
her burden of proof required for asylum relief. Thus, the IJ denied Yang’s
application for asylum and ordered that she be removed to China. The IJ also
denied her claim for withholding of removal under the CAT noting that the burden
1
Under the Homeland Security Act of 2002, the INS was abolished and its functions were
transferred to the newly-created Department of Homeland Security (DHS).
4
of proof is higher under the Torture Convention than it is under the INA. Yang
filed a timely Notice of Appeal with the BIA. The BIA affirmed the IJ’s decision
without opinion. Yang now appeals.
II. DISCUSSION
A. Yang’s Credibility
We first turn to the question of whether the IJ made an adverse credibility
determination and, if so, whether substantial evidence supports that determination.
Because the BIA affirmed without opinion the IJ’s decision pursuant to 8 C.F.R. §
1003.1(e)(4), the IJ’s decision is the final agency determination, and thus, the one
before us on appeal. Mendoza v. United States Attorney Gen., 327 F.3d 1283,
1288-89 (11th Cir. 2003).
It is the duty of the fact finder to determine credibility, and we may not
substitute our judgment for that of the IJ with respect to credibility findings.
Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977).2 Thus, the IJ’s
administrative findings of fact are conclusive unless a reasonable factfinder would
be compelled to conclude to the contrary. Fahim v. United State Attorney Gen.,
278 F.3d 1216, 1218 (11th Cir. 2002). Uncorroborated but credible testimony may
2
The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior
to October 1, 1981.
5
be sufficient to sustain the burden of proof for demonstrating eligibility for asylum.
8 C.F.R. 208.13(a), 208.16(b). The weaker an applicant’s testimony, however, the
greater the need for corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136,
1139 (BIA 1998).
The IJ did not expressly state whether she found Yang’s testimony to be
credible or not. We agree with our sister Courts that when an IJ “says not that
[s]he believes the asylum seeker or [that] [s]he disbelieves her . . . the reviewing
Court is left in the dark.” See Li Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir.
2005) citing Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004);
Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660-61 (9th Cir. 2003); Diallo v.
INS, 232 F.3d 279, 287-88 (2d Cir. 2000). Though the IJ made a reference to
Yang’s claims as a “ridiculous fabrication” and stated that her testimony was
“extremely inconsistent and [made] absolutely no sense whatsoever,” we are not
persuaded that this was an explicit finding that Yang’s testimony was not credible.
IJ’s must make “clean determinations of credibility.” Id. Moreover, the thrust of
the IJ’s analysis focuses on the insufficiency of Yang’s evidence, rather than on
any credibility issues. Thus, for purposes of our review, we will assume that any
credibility determinations by the IJ were not dispositive of the appeal.
B. Yang’s Asylum Eligibility
6
We now turn to the merits of Yang’s claim. Specifically, we will address
whether substantial evidence supports the IJ’s finding that Yang failed to
demonstrate eligibility for asylum under the INA. To the extent that the IJ’s
decision was based upon a legal determination, we review the IJ’s decision de
novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). We
review the IJ’s factual determinations under the substantial evidence standard, and
“must affirm the [IJ’s] decision if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft,
257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation omitted) (transitional-rules
cases); see also INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) (“administrative
findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary”). To reverse the IJ’s decision, we must
conclude that the record not only supports such a conclusion, “but compels it.”
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1, 112 S.Ct. 812, 815 n.1, 117 L.Ed.2d
38 (1992) (emphasis in original).
An alien who is present in the United States may apply for asylum. Section
208(a) of the Immigration and Nationality Act (“INA”) gives the Attorney General
discretion to grant political asylum to any alien determined to be a “refugee”
within the meaning of the INA. 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1).
7
A refugee is defined as one who is unable or unwilling to return to his or her home
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.
To establish asylum eligibility, the alien must, with specific and credible
evidence, establish past persecution on account of a statutorily listed factor, or a
“well-founded fear” that the statutorily listed factor will cause such future
persecution. 8 C.F.R. §§ 208.13(a) and (b); Al Najjar, 257 F.3d at 1287. An
applicant must demonstrate “that his or her fear of persecution is subjectively
genuine and objectively reasonable.” Id. at 1289. “The subjective component is
generally satisfied by the applicant’s credible testimony that he or she genuinely
fears persecution.” Id. “In most cases, the objective prong can be fulfilled either by
establishing past persecution or that he or she has a ‘good reason to fear future
persecution.’” Id.
In 1996, Congress amended the definition of the term “refugee” to include
“[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.” INA §
101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B). See also In re X-P-T-, 21 I. & N. Dec.
8
634, 638, 1996 WL 727127 (BIA 1996). The definition also includes “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 . . .” INA
§ 101(a)(42)(B).
1. Persecution Based on Undergoing a Sterilization Procedure or Well-Founded
Fear of Becoming Sterilized
We look first to whether Yang was persecuted or has a well-founded fear of
persecution. Because we cannot conclude that the record compels a contrary
finding than that made by the IJ, we credit the IJ’s finding that Yang did not
demonstrate past persecution or a well-founded fear of future persecution on
account of her political opinion. Specifically, Yang failed to establish that the
Officials’ alleged attempts to sterilize her made her eligible for asylum. The IJ
correctly found that Yang failed to provide sufficient evidence indicating that: (1)
any injection she received was intended to sterilize her instead of a hormone
injection used as a birth-control measure;3 and (2) she was allergic to anesthesia, or
3
Though we do note that Yang submitted official documentation from the Chinese
government indicating that she underwent a “sterilization procedure,” this document has not
been authenticated, and thus we cannot depend on its veracity. Furthermore, Yang claimed in
her testimony that she was not sure what the full effect of the injection would be, but that the
Officials told her that “they have injection for [her] in order for [her] to stop to have the baby.”
Thus, because she did get pregnant directly after the IUD was removed, the evidence shows that
the injection was likely a temporary hormone injection as opposed to a permanent sterilization
procedure.
9
that the Officials’s attempts to sterilize her were thwarted by her reaction to the
anesthesia.4 Moreover, the State Department’s 2001 Country Reports on Human
Rights Practices and its 1998 Profile of Asylum Claims and Country Conditions
for China indicate that Yang’s home province, the Fujian province, is known for its
lax enforcement of China’s family-planning policies.
2. Persecution for Failure to Undergo a Procedure
Because we conclude that the record does not compel us to find that Yang
was forced to undergo a sterilization procedure, we next must look to whether she
was “persecuted for failure or refusal to undergo such a procedure.” INA §
101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B). Yang first asserts that the fine that she
was forced to pay when she gave birth to her second child amounted to persecution
for failure to follow China’s official policy concerning child birth. The evidence
indicates, however, that the fines were paid by Yang or her family within three
days of assessment, indicating that she did not dispute the fine. Furthermore, a
single fine is not akin to a sterilization procedure or forced abortion.
3. Other Resistance to a Coercive Population Control Procedure
4
Yang claimed that she was allergic to all anesthetics including pain relievers such as
Aspirin and Tylenol. In the medical reports, which she submitted from the birth of her third
child in America, the doctor’s notes indicate that she was administered Tylenol. Thus, we agree
with the IJ that she failed to provide sufficient evidence of her allergy.
10
Although we did not find substantial evidence in the record that would
compel us to conclude that Yang was forcibly sterilized, we do believe, and the IJ
did not find to the contrary, that Yang was credible in her claim that she was forced
to undergo an atrocious injection procedure to which she fought back by kicking
and screaming. This claim could constitute “other resistance to a coercive
population control program.” 8 U.S.C. § 1101(a)(42)(B). There is very little case
law analyzing the “other resistance” clause in the asylum statute. Additionally, a
review of the legislative history behind the 1996 Amendment does not reveal any
clear intent from Congress on the scope of the “other resistance clause.” 5
The Ninth Circuit is the only federal court to undergo an in-depth analysis of
the “other resistance” clause in the asylum statute. See Li v. Ashcroft, 356 F.3d
1153, 1160 (9th Cir. 2004) (en banc).6 The Li court held that the applicant, Li, was
5
When Congress amended the definition of “refugee” and added the “other resistance”
clause to the statute, it had before it evidence from subcommittee hearings held in May, June,
and July of 1995 on the subject of coercive population control in the People’s Republic of China.
See Zhao v. United States Dept. of Justice, 265 F.3d 83, 92 (2nd Cir. 2001), citing Coercive
Population Control in China: Hearings Before the Subcomm. on Int’l Operations & Human
Rights of the House Comm. on Int’l Relations (Hearings), 104th Cong. (1995). The Hearings do
not reflect the intent behind the “other resistance clause.” Instead, the record is replete with
general statements discussing that China “has repeatedly cracked down on those who resist
forced sterilization [and that it] treats them as political and ideological criminals, and as enemies
of the state.” Id. The hearings also focused on China’s infliction of “harsh punishment on
refugees who are returned, such as beatings and being sent to forced labor camps, and being
sentenced to prison.” Id.
6
Recent decisions have analyzed whether this clause applies to the spouses of people who
have undergone forced sterilizations or abortions. In a Fifth Circuit decision, Zhang v. Ashcroft,
395 F.3d 531(5th Cir. 2004), the petitioner’s “live-in” girlfriend was a Chinese national living in
11
persecuted for “other resistance” to a population control program within the
meaning of the asylum statute, when she “vocally resisted the marriage-age
restriction . . . [and] the one-child policy,” in China. Id. Li announced to Officials
that she opposed the government’s birth-control policy. Id. at 1158.7 Two days
later, Officials, “forcibly took Li to a birth control center where she was put on a
bench and held down by two nurses . . . Li’s uterus, vagina, and cervix were
probed while she resisted physically by kicking and screaming in fear.” Id. The
Officials then told her “that at any time in the future, she could be subjected to the
same sort of test, and that if she were pregnant, she would be subject to forced
abortion and her boyfriend sterilized.” Id. The court found that her verbal
resistance to the policy and her physical resistance in the ensuing “rape-like” event,
Id. at 1158 n.4, constituted “other resistance to a coercive population control
program.” Id. at 1160.
In the present case, Yang’s forced injection experience bears similarities to
the persecution that occurred in the Li case. First, like the physical force used
China who was fined and forced to have an abortion pursuant to China’s population control
program. The Court held that the petitioner “exhibited no legally cognizable ‘resistance’ to
China’s population control program” because the court held that “merely impregnating one’s
girlfriend is not alone an act of ‘resistance.’” Id. The BIA only extends refugee protection to an
applicant whose spouse suffered forced sterilization or abortion. See In Re C-Y-Z, 21 I. & N.
Dec. 915, 918 (BIA 1997).
7
Specifically, Li told Officials that she would “have many babies.” Li v. Ashcroft, 356
F.3d at 1160.
12
against Li, Yang’s testimony indicates that she was forcibly taken to the hospital
by five or six Officials. Next, like Li’s verbal and physical resistance, which
triggered her persecution by Chinese birth-control officials, Yang’s testimony also
indicates that she verbally and physically resisted as they forced her out of her
home and onto the hospital bed.
Furthermore, Yang’s two forced IUD procedures by the Chinese Officials
could also be considered “other resistance.” Recently, the Fourth Circuit, in
denying relief to the petitioner in Li v. Gonzales, 405 F.3d 171, 179 (4th Cir.
2005), explained that if the petitioner’s arguments on appeal “were not so narrowly
limited to [a] single act of insertion, [the court] might well be prepared to hold that
the compulsory insertion and required usage of an IUD constitutes “persecution”
within the meaning of 8 U.S.C. § 1101(a)(42).”8 Additionally, the Third Circuit
recognized in Fang v. Ashcroft, 114 Fed. Appx. 486 (3rd Cir. 2004), that the
“[BIA] and the Circuit Courts have not specifically addressed whether a woman
who unwillingly acquiesced to obtaining an IUD ‘has been persecuted’ under the
8
Instead, because the petitioner’s argument was narrow and the petitioner (1) “voluntarily
chose to leave the IUD in place during her [four year] residence in the United States;” and (2)
did not allege “force, physical abuse, or other equivalent circumstances, and thus [did] not
challenge the manner or means of the insertion,” the Court concluded that “the BIA did not
abuse its discretion when it determined that [the petitioner] was not persecuted for resistance to
China’s coercive population control program.” 405 F.3d at 179-80. Yang’s case is
distinguishable because she twice had her IUD removed and alleged physical and verbal
resistance to the Officials’s attempts to prevent her pregnancies.
13
[other resistance] clause.” Therefore, the Fang court remanded the case to the BIA
for further proceedings. Similarly, in Lin v. Ashcroft, 385 F.3d 748, 757 (7th Cir.
2004), the court noted that the “IJ did not determine whether Lin’s three
involuntary IUD insertions and mandatory checkups could constitute persecution
as a ‘coercive population control program’ under the amended statutory
definition.” Most recently, the Seventh Circuit in Zheng v. Gonzales, 409 F.3d
804, 806 (7th Cir. 2005), noted that the BIA “assumed that the involuntary
insertion of IUDs constitutes persecution pursuant to a ‘coercive population control
program’ for purposes of § 1101(a)(42)(B).” Because the “BIA assumed” that
“persecution under the expanded definition of refugee can be established on the
basis of forcible IUD insertions alone” rather than definitively deciding the issue,
the Court remanded the case for the BIA to decide. Id. at 811-12.
Moreover, in Lin, the Court mentioned that having a government imposed
IUD illegally removed could constitute a type of “other resistance to a coercive
population control program.” Lin, 385 F.3d at 757. The Lin court pointed out that
the IJ left open the question whether the petitioner’s efforts to have IUDs, which
were forced upon her by Chinese Officials, removed by a private doctor, is the type
of ‘resistance’ that Congress sought to protect under the asylum statute. Id. The Lin
court also remanded these issues to the BIA. Id.
14
We agree with the Seventh Circuit that removing an IUD against China’s
official policy could be considered “other resistance” to a coercive population
control program.9 We also note that the removal of IUDs from women of
childbearing age without the permission of family planning authorities is
punishable as a crime in China. See, e.g., Xiaorong Li, License to Coerce:
Violence Against Women, State Responsibility, and Legal Failures in China’s
Family-Planning Program, 8 Yale J.L. & Fem. 145, 171-72 (1996). Thus, like the
Third and Seventh Circuits, we will defer to the BIA’s decision on these issues
concerning the “other resistance to a coercive population control program” clause
in the 1996 Congressional Amendment. 8 U.S.C. § 1101(a)(42)(B).
III. CONCLUSION
We AFFIRM the BIA’s decision affirming the IJ’s finding that Yang did not
undergo a forced a sterilization and, therefore, is not eligible for asylum on the
ground that she was persecuted or had a well-founded fear of future persecution.
We REMAND the question of whether Yang’s acts of (1) verbally and
physically resisting an injection procedure, (2) having two IUDs inserted against
9
Again, the legislative history on this clause is not forthcoming with evidence of
Congressional intent. Though some testimony presented to the House Subcommittee discussed
that there is an “upward trend in IUD insertions” in China, see Hearings, 104th Cong. (1995)
(statement of John S. Aird, Former Senior Research Specialist on China at the U.S. Bureau of the
Census), IUD insertion or removal was not prevalent in the evidence presented to Congress.
15
her will, or (3) privately taking out two governmentally imposed IUDs, could be
construed as “other resistance to China’s birth control policies.”
16