13‐2030‐ag
Chen v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
________________
August Term, 2014
(Argued: August 25, 2014 Decided: December 5, 2014)
Docket No. 13‐2030‐ag
________________
HUO QIANG CHEN,
Petitioner,
—v.—
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
________________
Before:
RAGGI, CHIN, AND CARNEY, Circuit Judges.
________________
Petition for review of a Board of Immigration Appeals decision upholding
denial of asylum and withholding of removal. The Board held that the
imposition of a fine equal to approximately twenty times petitioner’s annual
income for resistance to a coercive population control program and ensuing
1
economic sanctions for failure to pay the fine after petitioner left China did not
establish either past persecution or a well founded fear of future persecution
under the circumstances of this case.
Petition for review DENIED in part as to past persecution determination
and GRANTED in part as to feared future persecution determination. Agency
decision as to asylum and withholding of removal VACATED and case
REMANDED.
________________
THEODORE N. COX, ESQ., New York, New York, for Petitioner.
YEDIDYA COHEN, Trial Attorney (Stuart F. Delery, Assistant Attorney
General, David V. Bernal, Assistant Director, on the brief),
Office of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
________________
REENA RAGGI, Circuit Judge:
Since his 2001 arrival in the United States more than thirteen years ago,
Chinese national Huo Qiang Chen has been engaged in almost constant litigation
to avoid removal from this country based on claimed past persecution and feared
future persecution in China for resistance to that country’s coercive population
control program. In this latest round of proceedings, Chen petitions for review
2
of an April 25, 2013 decision of the Board of Immigration Appeals (“BIA”), which
upheld a March 4, 2011 order by Immigration Judge (“IJ”) Sandy K. Hom
denying Chen’s applications for asylum and withholding of removal and
directing his removal from the United States. See In re Huo Qiang Chen, No.
A077 353 815 (B.I.A. Apr. 25, 2013), aff’g No. A077 353 815 (Immig. Ct. N.Y.C.
Mar. 4, 2011). Chen challenges the BIA’s determination that, under the
circumstances of this case, imposition of a fine equal to approximately twenty
times Chen’s annual income and, after Chen left China, a further sanction for
failure to pay the fine, specifically, termination of his family’s farming leasehold,
did not establish either past persecution or a well founded fear of future
persecution as those terms are used under the Immigration and Nationality Act
(“INA”), Pub. L. No. 82‐414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C.
§§ 1101–1537).
For reasons discussed herein, we hold that while a severe fine can amount
to economic persecution, an alien claiming to have suffered past persecution
must show more than the imposition of such a fine; he must show that payment
of the fine (or efforts to pay or collect it) actually deprived him of the basic
necessities of life or reduced him to an impoverished existence. See In re T‐Z‐, 24
3
I. & N. Dec. 163, 171, 174 (B.I.A. 2007). At the same time, however, we clarify
that an unpaid fine and sanctions imposed after an alien is already in the United
States for nonpayment of a fine may support a well founded fear of future
persecution if the alien were returned to his native country, particularly where
the record indicates a likelihood that authorities would continue to demand
payment of the fine and such payment would impoverish the alien or deprive
him of the basic necessities of life.
Substantial evidence here supports the agency’s finding that Chen failed to
demonstrate that the imposition of a severe fine deprived him of the basic
necessities of life or impoverished him before he left China. Accordingly, we
deny review of the BIA’s past persecution ruling. The agency erred, however, in
concluding that no evidence existed of continuing demands for payment while
Chen has been in the United States and in reaching other factual conclusions not
supported by substantial evidence. We therefore grant review of the BIA’s
feared future persecution ruling. Accordingly, we vacate the BIA’s order insofar
as it denied Chen both asylum and withholding of removal based on such ruling,
and we remand for further proceedings consistent with this opinion.
4
I. Background
A. Chen’s Fines for Resisting China’s Population Control Program
In China, Chen, who is almost illiterate, had worked as a farmer on a one‐
third acre plot of land leased to him (and to his father before him) by the
government in a sharecropper arrangement. Chen realized approximately 1,000
Renminbi (“rmb”) per year from farming, which he used to support himself, his
wife, and their three children. Chen sporadically supplemented these earnings
by doing odd jobs in his village, for which he was generally paid 15 rmb a day.1
By having three children, Chen and his wife had violated China’s coercive
population control program. As punishment, Chinese officials sterilized Chen’s
wife, and in April 1996, fined Chen 13,000 rmb. Chen paid 5,000 rmb of this fine,
raising the money by selling his television and some rice and by borrowing 2,000
rmb from his sister. Chen testified that, in September 1996, government officials
gave him ten days to pay the 8,000 rmb outstanding on the fine as well as an
additional 10,000 rmb penalty. Thus, in 1996, Chen was fined a total of 23,000
rmb, with 18,000 rmb still owed.
1 As of the date this case was submitted, the conversion rate between United
States Dollars and Renminbi was 6.1540 rmb per dollar.
5
Ten days later, with the fine unpaid, government officials came to Chen’s
home in search of property that might be seized to satisfy the fine. Although
they apparently found nothing worth taking, an argument ensued, which
prompted Chen to flee his village to avoid retaliation.
For several years Chen hid in a neighboring village where he earned 1,500
rmb per year—more than he had earned farming—tending a community cow.
Meanwhile, his wife continued to farm their assigned land.
B. Chen Illegally Enters the United States; Chinese Authorities
Terminate His Farming Leasehold
In 2001, Chen decided to leave China, paying a smuggler $50,000 to help
him enter the United States. Chen’s friends and relatives loaned him the money
necessary to pay the smuggling fee. Since 2001, Chen has resided in New York,
earning $9,000 to $10,000 a year working in the construction and restaurant
industries. By 2010, he had repaid his debt to friends and relatives. Also, since
2003, Chen has been the sole support for his wife and children in China. In that
year, as punishment for Chen’s failure to pay the outstanding fine, Chinese
officials terminated his family’s right to farm its assigned plot of land. Chen’s
wife has not worked since that time. Chen asserts that government officials
6
nevertheless have continued coming to his family’s home to seek payment of the
fine.
C. Chen’s Efforts To Secure Relief from Removal
1. Initial Agency Denial
Upon Chen’s April 2001 arrival in the United States, immigration
proceedings were initiated against him. From the outset, Chen conceded
removability but requested asylum, withholding of removal, and relief under the
United Nations Convention Against Torture (“CAT”) based on feared
persecution for resistance to China’s population control program. He supported
his claimed fear by reference to his wife’s sterilization, the imposition of a 23,000
rmb fine, and—after 2003—the revocation of his family’s farming rights for
failure to pay the fine.
On May 13, 2002, after Chen’s first hearing, the IJ found him not credible
and denied him relief from removal. Chen appealed to the BIA, which, on
October 8, 2003, rejected the IJ’s adverse credibility determination, but
nevertheless concluded that Chen had failed to establish eligibility for asylum,
withholding of removal, or CAT relief. Chen unsuccessfully moved for the BIA
to reopen and reconsider its ruling, whereupon he petitioned this court for
review of the BIA’s decision. On June 14, 2006, pursuant to a stipulation and
7
settlement by the parties, this court vacated the BIA’s decision and remanded for
further proceedings and reconsideration in light of Diallo v. INS, 232 F.3d 279,
288–90 (2d Cir. 2000) (holding that BIA may deny relief for lack of corroboration
only if it (a) identifies particular pieces of missing, relevant documentation, and
(b) shows that documentation at issue was reasonably available to alien), and Jin
Shui Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir. 2003) (same). Almost a year later,
on May 30, 2007, the BIA remanded the case to the IJ.
2. Second Agency Denial
After further hearings, the IJ again denied Chen relief from removal on
March 6, 2008. The IJ concluded that Chen (a) had not established entitlement to
CAT relief, (b) was not eligible for asylum or withholding of removal based on
his wife’s sterilization, and (c) was not otherwise eligible for asylum or
withholding of removal because he had not demonstrated his own resistance to
the coercive population control policies. In a July 20, 2009 decision, the BIA
identified error in the IJ’s final conclusion. It found that Chen’s payment to have
his wife’s intrauterine device removed and his purposeful failure to obtain birth
permits for his second and third child manifested the necessary resistance.
Accordingly, the BIA remanded the case to the IJ, with specific directions that
8
further evidence be taken as to Chen’s financial circumstances to determine if he
was entitled to relief based on economic persecution.
3. Third Agency Denial
Chen provided further testimony before the IJ on October 26, 2010. On
March 4, 2011, the IJ again ordered removal, concluding that Chen had waived
his original request for CAT relief by not pursuing it further on remand and had
not established either past economic persecution or a well founded fear of future
economic persecution so as to warrant either asylum or withholding of removal.
With respect to the latter conclusion, the IJ found that, although Chen had been
fined a large amount, he had not demonstrated that the fine caused him
substantial economic harm because (a) after Chen went into hiding, his family’s
income doubled because he was able to earn 1,500 rmb per year in a neighboring
village while his wife continued to work their farm; (b) when Chinese authorities
visited his home looking for valuables that might satisfy the fine, they seized
nothing; (c) Chen had the demonstrated ability to borrow significant amounts of
money—up to $50,000—from family and friends; (d) Chen had already left China
when authorities terminated his farming leasehold in 2003; and (e) in the United
States, Chen was able to earn enough money to repay his smuggling debt,
9
support his family in China, and accumulate savings of $1,716.75. As to feared
future persecution, the IJ found that Chen’s subjective fear was not objectively
reasonable because there was no evidence (a) that government officials had come
to his home or inquired about his whereabouts in the last ten years; or (b) that
Chen would be unable to support himself upon return to China by farming,
tending livestock in a neighboring village, or working in the construction or
restaurant industries.
Chen appealed to the BIA and submitted a motion to reopen. On April 25,
2013, the BIA dismissed the appeal and denied reopening. Echoing the IJ, the
BIA concluded that Chen had suffered no past economic persecution as a
consequence of the large fine imposed on him because, when he failed to pay the
fine, both he and his wife were able to continue working, and authorities did not
confiscate their possessions or their home. The BIA explained that the 2003
termination of his farming leasehold did not constitute past persecution because
it occurred only after Chen’s 2001 departure from China. Instead, this
confiscation was relevant to Chen’s professed fear of future persecution. The
BIA agreed with the IJ that Chen’s fear of future persecution was not objectively
reasonable because Chen’s economic situation in the United States had changed
10
so as to allow him to pay the fine, and he could support himself in China by
working in a neighboring village or doing odd jobs as he had in the past.
On May 22, 2013, Chen filed the current petition, which seeks review of the
BIA’s April 25, 2013 decision.
II. Discussion
A. Jurisdiction and Standards of Review
Federal courts have jurisdiction to review final orders of removal pursuant
to 8 U.S.C. § 1252. Where, as here, the BIA affirms an IJ’s removal order and
“closely tracks the IJ’s reasoning,” we consider “both the IJ’s and the BIA’s
opinions for the sake of completeness.” Maldonado v. Holder, 763 F.3d 155, 158–
59 (2d Cir. 2014) (internal quotation marks omitted). In doing so, we review the
agency’s factual findings only to determine whether they are “supported by
substantial evidence,” but we review its “conclusions of law de novo.” Niang v.
Holder, 762 F.3d 251, 253 (2d Cir. 2014).
Under the substantial evidence standard, the agency’s factual findings are
“conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B). While this standard is highly
deferential, it does not admit “misstatement of the facts in the record []or bald
11
speculation or caprice.” Shu Wen Sun v. BIA, 510 F.3d 377, 380 (2d Cir. 2007)
(internal quotation marks omitted).
As for legal conclusions, where the BIA has issued a precedential opinion,
our de novo review is limited to determining whether the BIA’s legal
interpretations satisfy the requirements for deference under Chevron, U.S.A. v.
Natural Resources Defense Council, 467 U.S. 837 (1984). See Baraket v. Holder,
632 F.3d 56, 58 (2d Cir. 2011). Non‐precedential opinions, such as the BIA
opinion here, cannot claim Chevron deference. See Mei Juan Zheng v. Holder,
672 F.3d 178, 184 (2d Cir. 2012). Our court has not yet decided whether non‐
precedential BIA opinions are entitled to deference pursuant to Skidmore v.
Swift & Co., 323 U.S. 134 (1944), which affords agency interpretations “respect
according to [their] persuasiveness,” Sai Kwan Wong v. Doar, 571 F.3d 247, 260
(2d Cir. 2009) (internal quotation marks omitted). See Dawkins v. Holder, 762
F.3d 247, 249 (2d Cir. 2014) (observing that question of Skidmore deference to
unpublished BIA decisions remains open). We need not conclusively answer the
question here because the BIA’s legal reasoning is infected by factfinding not
supported by substantial evidence and, therefore, would not warrant Skidmore
deference even if it applied. See Gonzales v. Oregon, 546 U.S. 243, 269 (2006)
12
(stating that “under Skidmore,” courts follow agency’s interpretation only to
“extent it is persuasive”).
As relevant here, whether certain events will or might occur in the future
is a question of fact. See Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir.
2012). On the other hand, whether certain events, if they occurred, would
constitute persecution as defined by the INA is a question of law. See id. at 136.
Further, whether a given likelihood of persecution satisfies the requirements for
asylum or withholding of removal is a question of law. See id. at 135.
B. The Statutory Scheme
1. Asylum
Asylum is a form of discretionary relief that allows an otherwise
removable alien to remain and work in the United States. See 8 U.S.C.
§ 1158(b)(1)(A), (c)(1). To qualify for asylum, an alien must demonstrate that he
is a “refugee,” id. § 1158(b)(1), meaning that he is unable or unwilling to return
to, and unable or unwilling to avail himself of the protection of, his home
country because of past persecution or a well founded fear of future persecution
on account of race, religion, nationality, membership in a particular social group,
or political opinion, see id. § 1101(a)(42)(A); see also 8 C.F.R. § 1208.13(b); Mei
Fun Wong v. Holder, 633 F.3d 64, 68 (2d Cir. 2011). Persecution on account of
13
“resistance to a coercive population control program” is statutorily deemed to be
“persecut[ion] on account of political opinion.” 8 U.S.C. § 1101(a)(42); see
generally Mei Fun Wong v. Holder, 633 F.3d at 68–70. Meanwhile, a well
founded fear of future persecution requires a subjective fear that is objectively
reasonable. See Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir. 2005).
Supreme Court precedent instructs that a fear of future persecution may be well
founded even where the probability of the feared harm is less than 50%. See INS
v. Cardoza‐Fonseca, 480 U.S. 421, 431 (1987) (“One can certainly have a well‐
founded fear of an event happening when there is less than a 50% chance of the
occurrence taking place.”); accord Guan Shan Liao v. U.S. Dep’t of Justice, 293
F.3d 61, 69 (2d Cir. 2002).
2. Withholding of Removal
Withholding of removal is a form of mandatory relief that prevents an
otherwise removable alien from being removed to a country where “the alien’s
life or freedom would be threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3). Threats to life or freedom comprise a narrower
category than persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,
339, 341 (2d Cir. 2006) (noting that while “concept of persecution inheres in the
14
analysis of both asylum and withholding of removal,” “persecution includes
more than threats to life or freedom” (internal quotation marks omitted)).
Moreover, showing that life or freedom would be threatened is a higher burden
than establishing a well founded fear of such harm; specifically, it requires
evidence that life or freedom threatening harm “‘is more likely than not.’”
Vanegas‐Ramirez v. Holder, 768 F.3d 226, 237 (2d Cir. 2014) (quoting INS v.
Stevic, 467 U.S. 407, 424 (1984)).
Because the standard for withholding of removal is thus more demanding
than that for asylum, it necessarily follows that an alien who cannot demonstrate
eligibility for asylum also cannot demonstrate entitlement to withholding of
removal. See id.
C. Economic Persecution
Courts have long recognized that certain economic sanctions can rise to the
level of persecution. See, e.g., Dunat v. Hurney, 297 F.2d 744, 746 (3d Cir. 1961)
(interpreting former version of withholding‐of‐removal provision requiring
“physical persecution” and holding that economic persecution can suffice
because “[t]he denial of an opportunity to earn a livelihood in a country such as
the one involved here is the equivalent of a sentence to death by means of slow
starvation and none the less final because it is gradual”); accord Diminich v.
15
Esperdy, 299 F.2d 244, 247 (2d Cir. 1961) (noting “full[] agree[ment]” with
Dunat’s holding on economic persecution). Despite that long recognition, a
consistent standard for identifying when economic injury rises to the level of
persecution has proved elusive. See Mirzoyan v. Gonzales, 457 F.3d 217, 221–23
(2d Cir. 2006) (describing history of conflicting standards). In response to a
request by this court for clarification of the standard governing economic
persecution claims, see id. at 223, the BIA attempted to articulate a definitive
standard in In re T‐Z‐, 24 I. & N. Dec. 163. We have not yet decided whether the
In re T‐Z‐ standard is entitled to Chevron deference. See Xiu Fen Xia v.
Mukasey, 510 F.3d 162, 165 (2d Cir. 2007). Neither party here argues that the
standard is not entitled to such deference; instead, each insists that In re T‐Z‐
compels a judgment in its favor. We therefore deem any argument regarding the
applicability of the In re T‐Z‐ standard to be forfeited, and we apply that
standard to Chen’s claim of economic persecution.
In re T‐Z‐ instructs that an economic sanction constitutes persecution if it
(1) “‘depriv[es] [the victim] of liberty, food, housing, employment or other
essentials of life,’” or (2) deliberately imposes a “‘severe economic
disadvantage.’” 24 I. & N. Dec. at 171 (emphasis omitted) (quoting H.R. Rep. No.
16
95‐1452, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 4700, 4704). The first prong
of this standard is intended to reference “deliberate deprivation of basic
necessities such that life or freedom is threatened.” Id. at 171. The second prong
references sanctions that, while not actually threatening life or freedom,
nonetheless “reduce an applicant to an impoverished existence.” Id. at 174.
Economic sanctions that might manifest persecution include “particularly
onerous fine[s],” “large‐scale confiscation[s] of property,” and “sweeping
limitation[s] of opportunities to continue to work in an established profession or
business.” Id. There is, however, no fixed threshold for the economic harms that
will manifest persecution. Instead, whether a given economic sanction
constitutes persecution turns on its “impact” on the victim. Id.; accord In re J‐H‐
S‐, 24 I. & N. Dec. 196, 200–01 (B.I.A. 2007), petition for review denied sub nom.
Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008). Thus, a sanction that
impoverishes a poor victim would constitute persecution, while the same
sanction imposed on a wealthier individual without such effect would not. See
In re T‐Z‐, 24 I. & N. Dec. at 173 n.10, 174–75; see also Guan Shan Liao v. U.S.
Dep’t of Justice, 293 F.3d at 70 (holding that whether fine constitutes persecution
turns on victim’s financial circumstances and fine’s effect). In sum, an economic
17
sanction is persecution only if its impact is an “infliction of suffering or harm”
that on its own would be sufficient to constitute persecution. Mei Fun Wong v.
Holder, 633 F.3d at 72 (internal quotation marks omitted).
D. Chen’s Asylum Claim
In denying Chen asylum, the agency determined that he had failed to
demonstrate economic harms manifesting either past persecution or a well
founded fear of future persecution. We identify no error in the past persecution
determination, but we vacate the agency’s rejection of Chen’s claimed fear of
future persecution and remand for further proceedings on that issue.
1. Past Persecution
Chen argues that the agency erred in rejecting his past persecution claim
because the imposition of an 18,000 (or 23,000) rmb fine on a man with an income
of only 1,000 to 1,500 rmb per year must, as a matter of law, be found to
constitute economic persecution without regard to whether the fine was paid.
That argument improperly conflates the issue of when an economic sanction is
severe enough to have persecutive potential with when such a sanction in fact
effects persecution.
A total 23,000 rmb fine, more than twenty times Chen’s annual income,
was certainly “extraordinarily severe” and “particularly onerous”—i.e., the kind
18
of economic sanction that In re T‐Z‐ recognized could amount to persecution. I.
& N. Dec. at 171, 174. But In re T‐Z‐ does not state that the mere imposition of a
severe or onerous fine necessarily effects persecution. Rather, In re T‐Z‐ explains
that an economic sanction constitutes persecution when it actually “depriv[es]
[the alien] of basic necessities such that life or freedom is threatened,” id. at 171,
or reduces the alien “to an impoverished existence,” id. at 174. The imposition of
a severe or onerous fine does not, by itself, have these persecutive effects. A
severe fine may, after all, go unpaid. The government might not attempt to
collect the fine, or its attempts might not deprive the alien of life’s necessities or
render him impoverished. Thus, while imposition of a severe or onerous fine
may have the potential to impoverish or to deprive a person of life’s necessities
in the future, a person has not suffered past persecution until payment or
collection efforts actually have such persecutive effects. See id. at 168 (observing
that immigration law requires that there be “actual harm . . . amounting to
persecutory harm”); see also Mei Fun Wong v. Holder, 633 F.3d at 72 (collecting
cases describing persecution as “infliction of suffering or harm” on proscribed
ground (emphasis added) (internal quotation marks omitted)).2 Rather,
2 Efforts to collect an onerous fine may result in persecution that goes beyond the
19
imposition of a severe or onerous fine, on its own, can support only a well
founded fear of future persecution.
This conclusion finds support in our precedent, as well as that of our sister
circuits, holding that threats of persecution, no matter how credible, do not
demonstrate past persecution. See Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408,
412–13 (2d Cir. 2006); see also Zhen Hua Li v. Att’y Gen. of U.S., 400 F.3d 157,
164–65 (3d Cir. 2005) (cited approvingly in Gui Ci Pan) (stating that even
“sinister and credible” threats, including “death threats,” would not qualify as
past persecution unless fulfilled or “highly imminent”); Lim v. INS, 224 F.3d 929,
932–33, 936 (9th Cir. 2000) (cited approvingly in Gui Ci Pan) (identifying no past
persecution despite highly credible death threats). That is true even where, as
here, the threat implicit in an onerous fine—that collection will render one
impoverished or without the necessities of life—leads the alien to flee his own
village and hide in a neighboring one to avoid suffering these effects. See
generally Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d at 412 (stating that where
economic, as the Seventh Circuit demonstrated through a dramatic hypothetical.
See Xiu Zhen Lin v. Mukasey, 532 F.3d 596, 598 (7th Cir. 2008) (observing that
persecution would have occurred where “government tells a religious heretic we
are going to fine you $1 million for your heresy and if you cannot pay we are
going to burn you at the stake, and the heretic cannot pay and therefore is
executed”). That is not this case.
20
petitioner’s girlfriend was able to avoid forced abortion by couple’s going into
hiding, petitioner could not claim past persecution from threat of abortion);
Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d at 70 (holding that petitioner
who fled village after imposition of economic fine and threat of detention had
not demonstrated past persecution).3 Instead, threats may be used to establish
only a well founded fear of future persecution. See Guan Shan Liao v. U.S. Dep’t
of Justice, 293 F.3d at 70; see also Zhen Hua Li v. Att’y Gen. of U.S., 400 F.3d at
165 n.3 (“[U]nfulfilled threats are generally within that category of conduct
indicative of a danger of future persecution.” (internal quotation marks
omitted)); Lim v. INS, 224 F.3d at 936 (“[Threats are] precisely that—threats of
future harm.”).
Chen cites no case in which a court has found past economic persecution
on the basis of an unpaid fine. Indeed, in the one case he cites where a court’s
3 In Miljkovic v. Ashcroft, 376 F.3d 754 (7th Cir. 2004), the Seventh Circuit held
that an alien had satisfactorily demonstrated persecution where he fled Serbia
after receiving a draft notice that, based on his ethnicity, targeted him for
hazardous military duty, possibly violative of international law. “Being driven
out of one’s country is another crossing of the line that separates mere
discrimination from persecution.” Id. at 756. Chen does not cite Miljkovic, nor
would that case help him given that Chen’s initial flight involved a move to a
neighboring village, not a change of country. Nor does the record indicate any
change in circumstances that, after years in that village, drove Chen out of China.
21
finding of past persecution rested, in part, on a fine, the alien had been forced to
pay the fine before fleeing China. See Zhen Hua Li v. Att’y Gen. of U.S., 400 F.3d
at 169 (finding economic persecution based partly on fine); id. at 174 (Sloviter, J.,
dissenting) (noting that alien had paid fine while in China). Moreover, when our
court has considered whether a particular fine constituted past persecution, we
have required the alien to demonstrate that payment of the fine actually
“constituted a substantial disadvantage to him.” Guan Shan Liao v. U.S. Dep’t of
Justice, 293 F.3d at 70 (noting that alien claimed to have paid fine).
In short, because economic persecution occurs only when a person is
deprived of the necessities of life or rendered impoverished, and because Chen
failed to show that the fine imposed on him ever had such effects before he left
China, he necessarily fails to demonstrate that the BIA erred as a matter of law in
rejecting his claim of past persecution.
The 2003 termination of Chen’s farming leasehold warrants no different
conclusion, because past persecution references persecution that the alien has
experienced in his native country before departing from it. See 8 C.F.R.
§ 1208.13(b)(1) (requiring alien claiming past persecution to have been
persecuted “in the past in the applicant’s country of nationality or, if stateless, in
22
his or her country of last habitual residence”). Chen left China in 2001. Thus, by
the time his leasehold was terminated, he had been in the United States for
almost two years. Moreover, he was working in this country, earning enough to
support himself, repay loans, accumulate modest savings, and—after
termination of the leasehold—support his wife and children in China. Whatever
economic hardships the leasehold termination may have visited upon his wife
and children, Chen cannot show that the sanction ever resulted in his own
economic persecution. Instead, the loss of Chen’s leasehold is a factor properly
considered in assessing whether he has a well founded fear of future economic
persecution if returned to China.
Accordingly, we conclude that there is no merit to Chen’s argument that,
as a matter of law, the record compels a finding that he suffered past economic
persecution. To the contrary, the agency reasonably concluded that the record
does not admit such a finding.
2. Well Founded Fear of Future Persecution
The BIA and IJ concluded that despite an outstanding 18,000 rmb fine and
the loss of his farming leasehold, Chen did not have a well founded fear of future
economic persecution upon return to China because (a) he had not claimed that
Chinese officials made any attempt to collect the fine after 2003; and (b) even if
23
payment were demanded, Chen could (1) make arrangements for installment
payments, (2) borrow money from friends and relatives, (3) earn money working
in a neighboring village, as he had before fleeing China, and (4) use his savings
of $1,716.75. A number of these findings rest on misstatements of fact or are not
supported by substantial evidence in the record.
First, as the government concedes, Chen testified that Chinese officials
have frequently come to his family’s home over the past decade looking for
money to satisfy his outstanding fine. See J.A. 133. Thus, the agency finding that
Chen failed to claim continued collection efforts in the past decade—the basis for
its conclusion that Chen might not face continued persecutive fine obligations
upon return to China—is not supported by substantial evidence.
Second, the finding that Chen could likely arrange for reasonable
installment payments of his outstanding 18,000 rmb fine upon return to China
finds no support in the record. To the contrary, the record shows that in
September 1996, within five months of Chen’s initial payment of 5,000 rmb on
the original 13,000 rmb fine, Chinese officials came to Chen’s home and told him
he had ten days to pay the outstanding 8,000 rmb owed plus an additional 10,000
rmb delinquency penalty. In short, far from being permitted to make reasonable
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installment payments on his fine, Chen was under orders to pay a total of 23,000
rmb, more than twenty times his annual income, within a period of less than six
months. The agency’s reasonable‐installment conclusion appears to derive from
the IJ’s reference to September 1998 as the time when the additional 10,000 rmb
penalty was imposed and full payment demanded. See J.A. 93, 96, 97. The
record, however, shows that Chen consistently maintained that the demand for
full payment and the imposition of the additional penalty occurred in September
1996. See J.A. 109, 617, 970, 1214. Indeed, in previous decisions, the IJ found and
the BIA acknowledged that the additional fine was imposed in 1996. See J.A. 263
n.3, 289–90. Thus, the IJ’s finding that the additional fine and full payment
demand occurred in 1998—the basis for his determination that Chen had been
given two years to pay the fine and might, therefore, reasonably expect to
negotiate installment payments upon return to China—is not supported by
substantial evidence.
Third, the agency found that because Chen had borrowed and repaid
substantial amounts from friends and relatives in the past—2,000 rmb from his
sister to make his initial fine payment and $50,000 from friends and relatives to
cover the smuggling fee that got Chen to the United States—he could likely do so
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again to pay any fine demanded upon return to China. While the record can
support a finding that Chen’s sister might again lend him money to pay his fine,
the same conclusion does not necessarily obtain with respect to further loans
from others. In Xue Yun Zhang v. Gonzales, 408 F.3d 1239 (9th Cir. 2005), the
Ninth Circuit reviewed a similar agency finding that an alien’s family could help
her pay a fine in China because it had paid for her to come to the United States.
See id. at 1247–48. The court concluded that the finding was not supported by
substantial evidence insomuch as the alien had explained that family members
had paid for her to come to the United States because they knew she could earn
enough here to reimburse them, but that they would not lend her money to
repay a fine in China because there was no prospect that she would ever earn
enough in that country to make repayment. See id. at 1248. Although Chen gave
similar testimony here, see J.A. 121, neither the IJ nor the BIA made any attempt
to distinguish this case from Xue Yun Zhang or to indicate what, if any,
reasoning might support an agency decision not to apply that holding to cases
outside the Ninth Circuit. In the absence of any such discussion—which we do
not foreclose on remand—we are inclined to agree with the Ninth Circuit that a
loan of money to help an alien travel to the United States, where he can earn
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enough to repay his lenders, is not substantial evidence to support a conclusion
that the same persons can or would lend the alien money to help pay a fine in
China where there is little prospect of repayment.
Chen does not dispute, and we identify no error in, the agency’s other
findings, i.e., that he could use his savings to pay part of his outstanding fine,
and that, despite loss of his farming leasehold, he could find some gainful
employment in China, whether in his own village or neighboring ones.
Nevertheless, these findings are not sufficient for us to conclude with confidence
that, with the other factual errors corrected on remand, the agency would still
conclude that Chen does not have an objectively reasonable fear of future
economic persecution if returned to China. See Kone v. Holder, 596 F.3d 141, 143
(2d Cir. 2010).
Assuming that Chen could use both his savings of $1,716.75 (10,565 rmb)
and another 2,000 rmb borrowed from his sister to pay the outstanding 18,000
rmb fine, he would still fall 5,435 rmb short of the full amount due. Whatever
employment Chen might be able to find in China, there is no evidence to support
a conclusion that a man who never earned more than 1,500 rmb per year in that
country and who no longer had a farming leasehold could quickly earn more
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than three times that amount so as to pay the more than 5,000 rmb due after
depleting his savings and borrowing from his sister, much less that he could do
so without becoming impoverished or deprived of the necessities of life—i.e.,
without suffering economic persecution.
Indeed, the probability of such future persecution is only reinforced by
evidence that Chinese authorities previously demanded that Chen pay his fine in
full and responded to his failure to do so with additional monetary sanctions
and, eventually, the termination of Chen’s farming leasehold—which
termination, but for Chen’s United States earnings, would have left his family
impoverished. Thus, even if termination of the farming leasehold while Chen
was in the United States did not subject him to economic persecution at that time,
the action is relevant to whether Chen might reasonably fear economic
persecution upon return to China if he could not make full payment on the
outstanding fine. See generally Fei Mei Cheng v. Att’y Gen. of U.S., 623 F.3d 175,
194–95 & n.14 (3d Cir. 2010) (concluding that confiscation of family farm and
truck constituted economic persecution where “family depended on the farm to
make a living,” even though alien “was able to ‘get by’ with a job she located in
another city” (internal quotation marks omitted)); Zhen Hua Li v. Att’y Gen. of
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U.S., 400 F.3d at 169 (concluding that fine equal to one‐and‐one‐half years’ salary
was “extremely onerous”).
Accordingly, because substantial evidence in the present record does not
support some of the critical findings of fact informing the agency’s conclusion
that Chen’s subjective fear of future economic persecution in China is not
objectively reasonable, and because we cannot conclude with confidence that the
agency will reach that same conclusion with the record corrected on remand, we
vacate so much of its order as denies Chen relief based on a fear of future
persecution. We neither require nor foreclose the agency on remand from
expanding the record on factual matters relevant to the feared future persecution
claim, such as whether an 18,000 rmb fine against Chen remains outstanding in
China; whether Chinese authorities have a continuing interest in collecting such
a fine; and whether Chen has the ability to pay the full fine amount demanded
(whether from savings, loans, or earnings) without becoming impoverished or
deprived of life’s necessities, in short, without economic persecution. It is not
our task to engage in such factfinding, see Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 334–35 (2d Cir. 2006), but only to ensure that the agency’s findings
are supported by the requisite substantial evidence. If, however, the IJ finds a
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reasonable probability that an onerous fine remains outstanding against Chen,
and that a reasonable person would fear that he would be forced to pay that fine
upon return to China although he lacked means sufficient to do so without
becoming impoverished or deprived of life’s necessities, then the agency should
find Chen to have established the well founded fear of future economic
persecution necessary to render him eligible for asylum and exercise its
discretion accordingly.
E. Chen’s Withholding of Removal Claim
The agency denied Chen withholding of removal solely on the ground that
he had not met the lower burden for asylum. Because we vacate the agency’s
order denying asylum, we also vacate its denial of withholding of removal and
remand for further consideration of whether the corrected (or expanded) factual
record supports this non‐discretionary relief.
III. Conclusion
To summarize, we conclude as follows:
1. To demonstrate past economic persecution, an alien must do more than
demonstrate that an extraordinarily severe or particularly onerous fine has been
imposed on him for engaging in protected conduct. He must show that payment
of the fine or efforts to pay or collect such a fine have had the actual effect of
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depriving him of life’s necessities or rendering him impoverished before he
entered the United States.
2. Imposition of an extraordinarily severe or particularly onerous fine,
even without payment, can support an alien’s well founded fear of future
economic persecution if returned to his native country, particularly where there
is record evidence of authorities’ continuing interest in collecting the fine and the
alien’s inability to make payment without being deprived of life’s necessities or
rendered impoverished.
3. We identify no error of law or fact in the agency’s determination that
petitioner here failed to demonstrate past economic persecution. We do,
however, identify error in the agency’s determination that petitioner failed to
demonstrate a well founded fear of future economic persecution because a
number of factual findings informing that conclusion are not supported by
substantial evidence.
Accordingly, the petition for review is DENIED in part as it pertains to
claimed past persecution and GRANTED in part as it pertains to feared future
persecution. The order of removal is VACATED insofar as it denied petitioner
both asylum and withholding of removal based on feared future persecution,
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and the case is REMANDED for further proceedings on that ground consistent
with this opinion.
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Huo Qiang Chen v. Holder
Court: Court of Appeals for the Second Circuit
Date filed: 2014-12-05
Citations: 773 F.3d 396, 2014 U.S. App. LEXIS 22914, 2014 WL 6844695
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