Lin v. Holder, No. 07-0591-ag (2d Cir. Oct. 14, 2009).

Lin v. Holder, No. 07-0591-ag (2d Cir. Oct. 14, 2009).

Where the petitioner’s activity as a nurse in China includes sometimes performing examinations to pregnant women to determine a fetus’s position so that a forced abortion could be performed pursuant to China’s family planning policy, it does not amount to “assistance or participation” in persecution which would render her ineligible for asylum or withholding of removal under the INA’s “persecutor bar.”

A court of appeals reviews the BIA’s factual findings under the substantial evidence standard, and uphold them if they are supported by reasonable, substantial and probative evidence in the record. On the other hand, the BIA’s application of law to fact is reviewed de novo.

Where the BIA did not expressly ‘adopt’ the IJ's decision, but its brief opinion closely tracks the IJ’s reasoning, this court considers in the interest of completeness both the IJ and BIA opinions, especially where doing so does not affect the outcome.

The Secretary of Homeland Security or the Attorney General may grant asylum to an alien determined to be a “refugee” within the meaning of the INA. The INA defines a “refugee” as a person who is unable or unwilling to return to a 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. Excluded from that definition is “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” This exclusion, the so-called “persecutor bar,” prevents those who have persecuted others or assisted or participated in the persecution of others from gaining refugee status and seeking asylum in the United States. The bar also applies to those seeking withholding of removal, but it does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture.

In this Circuit, four relevant factors determine whether the persecutor bar applies to a particular alien:(1) whether the alien was “involved in” acts of persecution by ordering, inciting, or actively carrying out the acts;(2) whether there is a nexus between the persecution and the victim’s race, religion, nationality, membership in a particular social group, or political opinion; (3) whether the alien’s actions, if not outright “involvement” under the first factor, amount to assistance or participation in persecution; and (4) whether the alien had sufficient knowledge that her actions might assist in persecution to make those actions culpable. For the persecutor bar to apply, an alien’s conduct must be persecution under either the first or third factors, and must also satisfy the second and fourth factors. In short, the petitioner is a persecutor if she knowingly did or assisted acts that would be persecution on account of the victim’s race, religion, nationality, membership in a particular social group, or political opinion.

It is settled law that forced abortion is persecution on account of political opinion.

In determining whether conduct amounts to ‘assistance’ in persecution, this court looks to the alien’s behavior as a whole. Where the alien’s conduct is active and has direct consequences for the victims it is ‘assistance in persecution.’

Where the conduct is tangential to the acts of oppression and passive in nature, however, this court declines to hold that it amounts to such assistance for the victims it is ‘assistance in persecution.’ Where the conduct is tangential to the acts of oppression and passive in nature, however, this court declines to hold that it amounts to such assistance.

Where the petitioner worked as a driver for the county health department in China and occasionally transported pregnant women to hospitals in the locked back of a van, against their will, so that county officials could perform forced abortions on them pursuant to China’s mandatory family planning policies, the petitioner is subject to the persecutor bar because through his actions, he played an active and direct, if arguably minor, role, and contributed directly to the persecution because by driving the van in which the women were locked, it ensured that the women were delivered to the place of their persecution.

The petitioner’s argument that his actions of transporting pregnant women to hospitals in the locked back of a van, against their will, so that county officials could perform forced abortions on them were involuntary, and therefore excusable, is without merit. Nothing in the record indicates that the petitioner did not have the ability to quit his job as a driver at any time in order to avoid the persecution of women.

The petitioner’s argument that his application for political asylum should have been saved by the redemptive act that he once allowed an unguarded pregnant woman he was transporting to go free after she pleaded with him is without merit. Redemptive behavior is not necessarily irrelevant to the inquiry as to whether an applicant has assisted in persecution, but the BIA was not in error when it determined that the petitioner was ineligible for asylum.

On the other hand, providing post-surgical care, including the taking of temperature and the recording of vital signs, as a nurse at a public hospital to women who had undergone forced abortion did not contribute to, or facilitate, the victims’ forced abortions in any ‘direct’ or ‘active’ way because the petitioner’s conduct neither caused the abortions, nor made it easier or more likely that they would occur; the actions were, at most, ‘tangential,’ ‘passive accommodation’ of the conduct of others and did not trigger the persecutor bar.

As to the single incident where the petitioner guarded forced abortion patients, this Court observed that guarding patients awaiting forced abortions comes closer to active assistance than does post-operative monitoring of vital signs, but where the petitioner was unarmed, and where she performed actual guard duties for only approximately ten minutes before accompanying one of the patients to the restroom and helped one of the patients to escape and lost her job as a result, the petitioner’s conduct, considered in its entirety, was tangential, and not sufficiently direct, active, or integral to the administering of forced abortions as to amount to assistance in persecution.

Where the examinations that the petitioner assisted were used to detect the position and health of the fetus--the kinds of examinations (e.g., ultrasounds) which were given to all pregnant women, whether the pregnancy is scheduled to result in a live birth, a voluntary abortion, or a forced abortion, they were more akin to routine patient care than a protocol specific to forced abortions and did not contribute to, or facilitate, the victims’ forced abortions in any ‘direct’ or ‘active’ way because they did not cause the abortions, nor did they make it more likely that they would occur. The petitioner’s actions were therefore tangential, and not sufficiently direct, active, or integral to the administering of forced abortions as to amount to assistance in persecution.

Although a redemptive act itself is not dispositive, this court must view the petitioner’s conduct as a whole, and the act of opening a side door of the hospital and allowing the woman who was scheduled for a forced abortion to escape by motorcycle with her husband while the guard was asleep suggests that she did not actively assist or participate in persecution.

In order to establish eligibility for CAT withholding, the petitioner must demonstrate that she will more likely than not be tortured if removed to her home country.

Where the petitioner affirmatively testified that she had never been arrested, detained, or physically mistreated in her home country, the IJ and the BIA did not erred in concluding that the petitioner failed to sustain her burden of demonstrating that it was more likely than not that she would be tortured in China.