This court has jurisdiction over a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Where the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, this court’s review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.
This court reviews questions of law de novo and findings of fact for substantial evidence.
In Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), the Attorney General concluded that INA § 101(a)(42) cannot be read to confer automatic or presumptive refugee status on the spouses of persons who have been physically subjected to a forced abortion or sterilization procedure pursuant to a foreign government’s coercive population program. The Attorney General in J-S- thus overruled the BIA’s earlier decisions in C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997), which held that the spouse of an individual forced to undergo an abortion or sterilization is prima facie eligible for asylum, and Matter of S-L-L-, 4 I. & N. Dec. 1 (BIA 2006), which limited C-Y-Z- to hold that only officially recognized spouses of victims of forced abortion or sterilization benefitted from a per se finding of past persecution.
This court must first decide whether the Attorney General’s most recent interpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), is legally controlling. When reviewing decisions by an administrative agency, this court applies Chevron deference. Under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), this court first asks whether the statute is silent or ambiguous with respect to the specific issue, and if so, whether the agency’s interpretation is based on a permissible construction of the statute.
The Attorney General’s conclusion in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), is contrary to this court’s precedent in He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003), in which it was in agreement with the BIA’s prior decision in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997). In He, this court affirmed the BIA’s conclusion that spouses of victims of coercive population control policies are presumptively eligible for asylum under INA § 101(a)(42). However, in
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”), the Supreme Court held that a court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.
This court is in agreement with the government’s argument that, under Brand X, deference must be given to the agency’s reinterpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). First, this court concludes that the Attorney General’s interpretation of INA § 101(a)(42) is entitled to Chevron deference. INA § 101(a)(42) is silent as to the provision of refugee status to spouses of victims of coercive population control policies. No language in the statute explicitly denies asylum relief to spouses of victims of coercive population control policies or precludes the Attorney General from construing that statute in a manner that affords them such relief. Moreover, as the agency’s new interpretation of the statute in J-S- indicates, the statutory language of INA § 101(a)(42) is susceptible to more than one interpretation. Although the Attorney General in J-S- noted that INA § 101(a)(42) did not explicitly exclude spouses from its purview, his decision in J-S- reversed the BIA’s earlier conclusion in C-Y-Z-, which held that the spouse of a victim of coercive population control policies is prima facie eligible for asylum under INA § 101(a)(42). This court therefore concludes that INA § 101(a)(42) is silent and ambiguous as to the refugee status of spouses of victims of coercive population control policies.
Proceeding to the second step in the Chevron analysis, this court would typically decide whether the agency’s interpretation is based on a permissible construction of the statute. In the instant case, however, this court defers to the agency’s new interpretation of INA § 101(a)(42), pursuant to National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). Under Brand X, only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. This court has clarified that, under Brand X, while agencies retain discretion to fill ambiguous statutory gaps, it does not follow that an agency may repeatedly put forward an interpretation that this court has already examined under Chevron and found unreasonable at its second step. Here this court has had no occasion to hold unreasonable the agency’s current view as to the presumptive eligibility of a victim’s spouse.
In He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003), this court agreed with the BIA’s prior decision in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) that spouses of victims of coercive population control policies are presumptively eligible for asylum under INA § 101(a)(42). However, this court’s decision in He affirmed the BIA’s prior position in C-Y-Z- without analyzing whether the agency’s answer is based on a permissible construction of the statute under the second prong of the Chevron test. Because our prior decision failed to foreclose the agency’s current interpretation, this court must defer to it. This court notes that our deference to the Attorney General’s new interpretation in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) is in accord with every other circuit to have addressed this issue.
Having concluded that the Attorney General’s interpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) controls, this court next examines whether the BIA committed legal error in concluding that the petitioner failed to demonstrate other resistance to a coercive population control program under the statute, and whether the BIA’s conclusion that the petitioner did not suffer persecution on the basis of that resistance is supported by substantial evidence.
In Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), the BIA concluded that spouses cannot rely upon the sole fact of their spouse’s persecution automatically to qualify for political asylum under the statute’s coercive population control ‘resistance’ provisions. The Attorney General’s interpretation, however, does not prevent the spouse of a person who has physically undergone a forced abortion or sterilization procedure from qualifying for political asylum. Such a person may qualify for asylum under INA § 101(a)(42) if he or she can demonstrate that: (i) he or she qualifies as a refugee on account of persecution for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program; (ii) he or she has a well-founded fear of being forced to undergo an abortion or involuntary sterilization procedure or of being persecuted for failing or refusing to undergo such a procedure or for other resistance to a coercive population control program; (iii) the specific facts of his or her case justify asylum on grounds other than those articulated in section 601(a); or (iv) he or she satisfies the requirements for derivative asylum expressly set forth in section 208(b)(3)(A) of the Act.
Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) thus stands only for the limited proposition that INA § 101(a)(42) cannot be read to confer automatic or presumptive refugee status on the spouses of persons who have physically been subjected to a forced abortion or sterilization procedure pursuant to a foreign government’s coercive population program. Indeed, the Attorney General concluded in J-S- that applicants may present proof, of which their spouse’s treatment may be a part, of persecution for refusing to undergo forced abortion or sterilization procedures or for engaging in ‘other resistance’ to a coercive population control program. This court thus considers a spouse’s forced abortion or sterilization as “proof” that an applicant resisted a coercive population control policy, and in analyzing whether persecution occurred as a result. However, an applicant must provide evidence of resistance in addition to the spouse’s forced abortion or sterilization to avoid what the Attorney General described as the “fatal flaw” in the per se eligibility analysis: Some spouses may not have ‘resisted,’ and in fact may have affirmatively supported, the forced abortion or sterilization procedure that was performed on the spouse who remains in China. Such applicants should not be permitted to use the sole fact of their spouse’s persecution automatically to qualify for political asylum under the statute’s coercive population control ‘resistance’ provisions.
Where (1) the petitioner neither supported nor acquiesced in the forced abortion, (2) family planning officials arrested both the petitioner and his partner after they had applied for a marriage license for cohabiting in violation of China’s prohibition against underage marriage, (3) subjected the petitioner’s partner to a medical examination against her will, (4) held the petitioner in detention while they subjected his partner to an abortion, (5) released him the next day after the abortion had been completed and after he paid a heavy fine, the petitioner’s partner’s forced abortion is proof of his resistance to China’s population control policy. Because the petitioner’s credible testimony amply demonstrates the “other resistance to a coercive population control program” required, the BIA erred as a matter of law in concluding otherwise.
Where the petitioner and his partner (1) cohabited without having been able to marry under Chinese law, (2) attempted to apply for an official marriage license, which was denied them due to their underage status., (3) were determined to marry in a traditional Chinese ceremony despite the government’s denial of an official marriage license even after the forced abortion and fine resulting from their previous violation of the population control law, and (4) on the morning of the wedding, ten police officers and family planning officials arrived to arrest the petitioner and he was forced to flee from his home and his bride was also forced into hiding, the forced abortion took place as part of a series of events that reflect the petitioner’s persistent defiance of the coercive population control policy. This court has established that China’s prohibition on underage marriage “is an integral part” of China’s coercive population control policy. In Li v. Ashcroft, 356 F.3d 1153, this court addressed for the first time the meaning of the phrase “other resistance to a coercive population control program” and held that a petitioner may also be able to demonstrate resistance to a coercive population control policy by deciding to marry, even when denied a license by local authorities. The petitioner’s acts in defiance of the coercive population control policy fit squarely within this court’s precedent as to the meaning of “other resistance.” Pursuant to Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) and Li v. Ashcroft, 356 F.3d 1153, it is clear that the forced abortion on the petitioner’s partner, of which the petitioner was not a willing participant, and his continued attempts to cohabit and marry in contravention of China’s population control policy, in the face of denial of an official marriage license, constitute “other resistance.”
To establish past persecution, a petitioner must demonstrate (1) an incident, or incidents, that rise to the level of persecution; (2) persecution on account of one or more of the statutorily-protected grounds; and (3) that the persecution was committed either by the government or by forces that the government was unable or unwilling to control. Because the petitioner’s claim falls under persecution on the basis of political opinion, and because the petitioner’s claim of persecution is based on actions by local police and family planning officials’ enforcement of China’s official population control policy, which he resisted, this court addresses only the question of whether the petitioner’s experiences rise to the level of persecution.
Even though the BIA was correct in concluding that pursuant to Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) the petitioner cannot qualify for refugee status solely on the basis of his partner’s forced abortion, J-S- makes clear that a forced abortion or sterilization imposed on one’s spouse is a factor in establishing that the petitioner was persecuted and the petitioner has offered substantial evidence of additional persecution in support of his claim. This court examines the totality of the circumstances in deciding whether a finding of persecution is compelled. The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment he or she received rises to the level of persecution. Where (1) the petitioner was first expelled from school due to his romantic relationship with his partner, which was legally prohibited, (2) after attempting to obtain a marriage license from the government, local authorities detained him for over a day, (3) family planning authorities required him to pay a heavy fine in order to be released from detention, (4) the petitioner resisted China’s official population control policy of prohibiting underage marriage by organizing and participating in a traditional wedding ceremony, (5) local officials and police officers arrived at his home on the morning of the wedding and attempted to arrest him, and (6) the petitioner was then forced to flee his hometown and hide from authorities out of concern for his safety, an examination of the totality of the circumstances compels a finding that the petitioner was persecuted as a result of his resistance to China’s coercive population control policy.
The BIA also erred in denying the petitioner’s asylum application because he was not a legal spouse of the victim of a forced abortion. In its decision, the BIA failed to account for our precedent in Ma v. Ashcroft, 361 F.3d 533 (9th Cir. 2004) establishing that China’s bar on underage marriage is an integral part of its coercive population control program. Under this holding, whether a persecuting country would recognize a marriage is not the dispositive question in determining whether the petitioner is a “spouse,” particularly where the marriage is barred by a coercive population control program. In Ma, this court held that because the prohibition on underage marriage is an integral part of China’s population control policy, it would contravene the fundamental statute to deny asylum on the basis of that rule. Thus, for couples who do not meet the age requirements to marry under population control policies, the failure to have an official marriage ceremony does not preclude male partners of women who have had forced abortions from obtaining asylum under § 1101(a)(42)(B). The Chinese government, moreover, recognizes a wedding ceremony according to the rural customs as a “de facto” marriage where both spouses have reached the legal age to marry. This court has therefore concluded that the protections of section 101(a)(42)(B) apply to husbands whose marriages would be legally recognized, but for China’s coercive family planning policies, and not only to husbands whose marriages are recognized by Chinese authorities.”
Because the petitioner and his partner would have been married in accordance with their village’s tradition but for this interference by local officials, and would have been married had the state not denied them a marriage license, this court thus concludes that the petitioner is not precluded from the protections of INA § 101(a)(42)(B), and that he may present proof of his partner’s forced abortion as a factor in establishing persecution, along with all the other acts of persecution that he suffered at the hands of Chinese officials. Accordingly, this court finds that any reasonable adjudicator would be compelled to conclude that the petitioner has established past persecution on the basis of “other resistance” to China’s coercive population control policy.
In light of the foregoing, this court needs not reach the petitioner’s religious persecution claim. Nevertheless this court disagrees with the government’s assertion that we lack jurisdiction to review this claim. The government’s contention that the petitioner failed to file a petition for review of the BIA’s December 27, 2006, denial of relief, in which the BIA considered his religious persecution claim is without merit. Where the petitioner timely filed, within the 30-day period required by statute, a motion for reconsideration of the BIA’s December 27, 2006 decision on January 10, 2007, in which he preserved his claim of religious persecution, and where the government subsequently requested that this court to remand his petition for review to the BIA for further reconsideration and this court remanded the petition in full to the BIA, which then neglected to address the petitioner’s religious persecution claim, this court has jurisdiction over his religious persecution claim, particularly when the petitioner properly briefed the issue before our court on this appeal. This court does not, however, determine whether the BIA erred in finding that the petitioner failed to establish persecution on the basis of his religious practice for purposes of his asylum, withholding, and CAT petition.
This court defers to the Attorney General’s interpretation of INA § 101(a)(42)(B) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). Under J-S-, a spouse of an individual who has undergone forcible abortion or sterilization may present proof of such treatment to evidence persecution. This court reaffirms that, for the purposes of INA § 101(a)(42), a spouse includes an individual whose marriage would be recognized but for the enforcement of China’s coercive population control policy, as well as an individual whose marriage is officially recognized by Chinese authorities. Because any reasonable adjudicator would be compelled to conclude that the petitioner established past persecution for “other resistance” to the population control policy, this court concludes that the petitioner is entitled to the protections of INA § 101(a)(42)(B). Accordingly, this court grants the petition for review and remands to the BIA, which shall, on behalf of the Attorney General, exercise discretion regarding whether to grant asylum. This court remands for further proceedings on whether the petitioner is eligible for withholding of removal and CAT relief.
Thursday, May 27, 2010
Wednesday, May 26, 2010
Shabaj v. Holder, 09-0558-ag (2nd Cir. April 12, 2010).
This court reviews the agency’s factual findings under the substantial evidence standard, treating them as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary and this court reviews de novo questions of law and the application of law to undisputed fact.
Aliens admitted under the Visa Waiver Program forfeit any right to challenge their removal, except that they may apply for asylum. Aliens who do not waive the right to review or contest removal other than on the basis of an application for asylum may not be provided a waiver under the program.
There is nothing in the record to establish whether he was “admitted” when his passport was found to be fake, or whether he was paroled into the United States pending asylum-only proceedings (in which latter event, authority for his removal would have been found under subsection (a) of 8 C.F.R. § 217.4). However, the procedural section of the removal order recites that the petitioner has been “admitted” under Section 217. And the only ground on which the petitioner challenges the jurisdiction of the DHS officer who ordered his removal is that the petitioner was not properly considered an applicant under the Visa Waiver
Program--which he assuredly was. Therefore, any other argument on this point is waived.
Because the only remedy the petitioner seeks is to remain in the United States while he appeals before the DHS its denial of his waiver of inadmissibility and status adjustment applications, and because the petitioner did not submit sufficient evidence to support a waiver of inadmissibility in this most recent application, there is no reason to believe his appeal before the DHS will be any more successful than his two previous failed attempts to get a waiver.
The regulation implementing the Visa Waiver Program statute treats someone who applies under the Visa Waiver Program using fraudulent papers as bound by its provisions. As the DHS interprets this regulation, it is applicable to anyone who seeks admission under the Visa Waiver Program using a passport from a nation included in the Visa Waiver Program, whether the passport is valid or bogus. This court therefore holds that the petitioner, a native and citizen of Albania arriving in the United States in November 2000 bearing a false Italian passport, is bound by the terms of the program notwithstanding that he used a fraudulent passport to obtain the benefit of expedited entry for which his waiver was given quid pro quo.
This Court has previously held someone in an analogous factual situation to be properly considered a Visa Waiver Program applicant. In Kanacevic, the petitioner was a citizen and national of a non-Visa Waiver Program nation who arrived and displayed a fraudulent passport purporting to be from a Visa Waiver Program nation. This court held that, because asylum is the only remedy that could be sought by a Visa Waiver Program applicant, the denial of the petitioner’s asylum claim constituted a final order of removal from which the petitioner could appeal. This is an implicit ruling that someone in the position of the petitioner of the instant case--a fraudulent Visa Waiver Program applicant--is a Visa Waiver Program applicant nevertheless. The petitioner was therefore properly adjudicated as a Visa Waiver Program applicant and he has received all the removal process to which he was entitled, and was properly determined to be removable. Accordingly, the petition for review is denied.
Aliens admitted under the Visa Waiver Program forfeit any right to challenge their removal, except that they may apply for asylum. Aliens who do not waive the right to review or contest removal other than on the basis of an application for asylum may not be provided a waiver under the program.
There is nothing in the record to establish whether he was “admitted” when his passport was found to be fake, or whether he was paroled into the United States pending asylum-only proceedings (in which latter event, authority for his removal would have been found under subsection (a) of 8 C.F.R. § 217.4). However, the procedural section of the removal order recites that the petitioner has been “admitted” under Section 217. And the only ground on which the petitioner challenges the jurisdiction of the DHS officer who ordered his removal is that the petitioner was not properly considered an applicant under the Visa Waiver
Program--which he assuredly was. Therefore, any other argument on this point is waived.
Because the only remedy the petitioner seeks is to remain in the United States while he appeals before the DHS its denial of his waiver of inadmissibility and status adjustment applications, and because the petitioner did not submit sufficient evidence to support a waiver of inadmissibility in this most recent application, there is no reason to believe his appeal before the DHS will be any more successful than his two previous failed attempts to get a waiver.
The regulation implementing the Visa Waiver Program statute treats someone who applies under the Visa Waiver Program using fraudulent papers as bound by its provisions. As the DHS interprets this regulation, it is applicable to anyone who seeks admission under the Visa Waiver Program using a passport from a nation included in the Visa Waiver Program, whether the passport is valid or bogus. This court therefore holds that the petitioner, a native and citizen of Albania arriving in the United States in November 2000 bearing a false Italian passport, is bound by the terms of the program notwithstanding that he used a fraudulent passport to obtain the benefit of expedited entry for which his waiver was given quid pro quo.
This Court has previously held someone in an analogous factual situation to be properly considered a Visa Waiver Program applicant. In Kanacevic, the petitioner was a citizen and national of a non-Visa Waiver Program nation who arrived and displayed a fraudulent passport purporting to be from a Visa Waiver Program nation. This court held that, because asylum is the only remedy that could be sought by a Visa Waiver Program applicant, the denial of the petitioner’s asylum claim constituted a final order of removal from which the petitioner could appeal. This is an implicit ruling that someone in the position of the petitioner of the instant case--a fraudulent Visa Waiver Program applicant--is a Visa Waiver Program applicant nevertheless. The petitioner was therefore properly adjudicated as a Visa Waiver Program applicant and he has received all the removal process to which he was entitled, and was properly determined to be removable. Accordingly, the petition for review is denied.
Thursday, May 13, 2010
Chen v. Holder, 7th Cir. No. 08-2836 (Apr. 28, 2010).
The BIA’s analysis of the respondent’s asylum claim was incomplete. The BIA failed to address the respondent’s claim of past persecution based on imputed political opinion—that is, the persecution that his mother and other family members suffered for their resistance to China’s coercive population-control policy. Even though the respondent’s mother’s forcible sterilization does not automatically entitle him to a finding of past persecution, it may in combination with other evidence show that his family’s resistance to China’s population control policy has been imputed to him. The BIA also failed to consider the cumulative significance of the hardships visited upon the respondent and his family—and the future hardships he would face if returned—when evaluating the respondent’s fear of future persecution. This court therefore grants the petition for review and remand to the BIA for further proceedings.
Where the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, this court reviews the BIA’s decision. The BIA’s legal conclusions are reviewed de novo. This court will uphold the BIA’s factual findings so long as they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Under this deferential standard of review, reversal is warranted only if the evidence compels a different result; this court will not overturn the BIA’s findings simply because this court might have decided the case differently. On the other hand, remand may be warranted when the BIA overlooks key aspects of an asylum-seeker’s claim and might reach a different conclusion after a more complete evaluation of the record.
The Attorney General has discretion to grant an alien asylum under the Immigration and Nationality Act if the alien qualifies as a refugee. A refugee is a person who is unwilling or unable to return to his native 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. A showing of past persecution will trigger a rebuttable presumption that the alien has a well-founded fear of future persecution. Even if an alien cannot show he has been subject to past persecution, he may nevertheless be eligible for asylum if he has a well-founded fear of future persecution. This requires the alien to show that his fear of persecution is both subjectively genuine and objectively reasonable. To prevail under this standard, the alien must present specific, detailed facts showing a good reason to fear that he will be singled out for persecution.
The statute at 8 U.S.C. § 1101(a)(42)(B) creates four classes of refugees: (1) those who have been forced to have an abortion or who have been involuntarily sterilized; (2) those who have been persecuted for failing or refusing a coerced abortion or sterilization or for other resistance to a coercive population control program; (3) those who have a well-founded fear that they will be forced to have an abortion or be sterilized; and (4) those who have a well-founded fear that they will be persecuted for failing or refusing such procedures or for resisting a coercive population control program. The Attorney General has concluded in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) that only those who have themselves been forced to have an abortion or have been involuntarily sterilized fall into the first class of refugees. In Matter of J-S-, it was held that an asylum-seeker whose spouse has suffered a forced abortion or sterilization is not per se eligible for asylum. Rather, the applicant must show that he or she personally suffered or will suffer persecution for resisting a coercive population-control program. Accordingly, under Matter of J-S-, evidence that the applicant’s spouse was forced to abort a pregnancy or undergo involuntary sterilization is relevant to the applicant’s claim but does not alone establish eligibility; the applicant must also present evidence of his or her own past persecution or reasonable fear of future persecution.
The Attorney General’s interpretation of 8 U.S.C. § 1101(a)(42)(B) in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the rationale applies with equal force to the claim of an asylum-seeker like the respondent whose parent has been forced to have an abortion or undergo sterilization.
The respondent does not fall into the first category of refugees created by 8 U.S.C. § 1101(a)(42)(B), therefore, under the rationale of Matter of J-S-, the respondent is not automatically eligible for asylum on the basis that his mother was sterilized against her will. Nor does the respondent fall into the second class of refugees as he has not “failed or refused” to be sterilized and has not otherwise “resisted” China’s one-child policy. He may, however, fall within the third and fourth classes of refugees under 8 U.S.C. § 1101(a)(42)(B)—those who have a well-founded fear of involuntary sterilization (forced abortion obviously is not at issue in the instant case as the respondent is a male), or those who fear persecution for refusing sterilization or otherwise resisting a coercive population-control program.
Where the respondent has consistently argued that he fears he will be involuntarily sterilized and otherwise persecuted because of his and his family’s violation of China’s one child policy, his claim is based partly on a theory of imputed political opinion. The BIA’s rejection of this argument on the basis of a perceived lack of circuit precedent to support it is an error of law. It is well established in the Seventh Circuit that an alien may base a persecution claim on imputed political opinion. Under this theory the alien is asserting that his persecutors have mistreated or will mistreat him because they attribute someone else’s—often a family member’s—political beliefs to him. To prevail on this sort of claim, the alien must show that (1) his persecutors attributed the political opinion of another to him, and (2) the attributed opinion motivated or will motivate the persecution.
The Second and Ninth Circuits have recognized that an asylum claim alleging persecution for resistance to a coercive population-control program under 8 U.S.C. § 1101(a)(42)(B) may be partially based on imputed political opinion—more specifically, such a claim may rely in part on a parent’s persecution for resisting a coercive population-control program. This is a specific application of the more general imputed political-opinion theory—already established in the Seventh Circuit—and this court will therefore follow the lead of these circuits in recognizing it in the instant case.
The respondent has submitted specific and detailed evidence tending to show that he and his family have been uniquely targeted by the population control committee in their village based on their persistent resistance to China’s one-child policy. He submitted evidence that his family spent many years hiding from population-control authorities in their village; his mother lost a child in utero when she fell trying to escape population-control authorities; his mother was forcibly sterilized after his birth; his aunt suffered a forcible abortion and was thereafter involuntarily sterilized; his parents had to give away one of his sisters because they could not afford her; and his family was subjected to significant economic hardship as a result of their extreme resistance to China’s one-child policy.
Where the BIA summarily rejected the imputed political-opinion basis of the respondent’s claim without analysis, having erroneously concluded that “current caselaw” in this circuit did not support it, and where the concept of persecution based on imputed political opinion has actually long been recognized in this circuit, and the respondent’s claim falls comfortably within this theory of relief, remand is in order to give the BIA the first opportunity to pass judgment on a claim it previously ignored. The BIA should consider the totality of the circumstances to determine whether harm suffered by family members in combination with other factors may constitute past persecution of the applicant, even if government authorities neither directly harmed the applicant nor harmed the family member in order to target the applicant.
There is another reason to return this case to the BIA: the respondent also presented evidence that as a member of the hei haizi—a child ineligible for registration on the hukou because he was born in violation of China’s population control program—he has been and will continue to be deprived of many fundamental rights and governmental benefits. Many of the hardships the respondent suffered as a hei haizi and will continue to face if returned to China are economic in nature. Because of his unlawful birth, the respondent and his family were subjected to severe financial deprivation; this took the form of enormous fines—at his birth and thereafter to allow him to attend school—as well as the denial of the land and food allotment permitted to lawfully born children. His father testified via affidavit that as a result of these fines, the family—already very poor—often went hungry. The respondent submitted evidence that as an unregistered person, he is denied access to government-provided higher education, health care (except that which can obtained at high cost on the black market), and many forms of employment. Where the BIA did not evaluate the cumulative significance of these hardships when evaluating Chen’s claim of past persecution (on political-opinion grounds or based on his membership in a particular social group), and where the BIA did not properly account for this evidence in evaluating the reasonableness of his fear of future persecution, its treatment of this claim, too, was incomplete.
It is well established that persecution can take the form of economic deprivation as well as physical mistreatment; a claim of persecution based on economic deprivation generally requires a showing of a deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life. This does not mean, however, that the alien must establish a total deprivation of livelihood on account of his protected status. Considered in the aggregate, the economic hardships imposed as a penalty for violation of China’s population control policy may, in appropriate cases, constitute persecution.
Beyond economic deprivations, the respondent has presented evidence that as a hei haizi he is deprived of other fundamental rights as well: He cannot acquire property or move freely about the country, and may be denied the right to marry and have children. This court has often emphasized the importance of evaluating the “cumulative significance” of multiple claimed hardships in evaluating asylum claims. Where the BIA dismissed the respondent’s claim of persecution based on his status as a hei haizi by reference to a solitary piece of evidence—the fact that the respondent was able to obtain a passport and therefore “was given the right to travel by the Chinese government,” and where the BIA ignored much of the respondent’s evidence and never addressed his argument about the combined effect of the economic and noneconomic deprivations he and his family have suffered and that he contends he will continue to suffer if returned to China, its treatment of the claim is woefully inadequate.
This court does not conclude that the record compels a conclusion that the respondent suffered past persecution or has an objectively reasonable fear of future persecution based on imputed political opinion or membership in his family or the hei haizi, or both. Because the BIA’s analysis flowed from a misapprehension of the state of this circuit’s caselaw and was otherwise incomplete, these are matters for the BIA to address on remand, in light of the principles we have explained here and based on the totality of the evidence. Accordingly, this court grants the petition for review, vacates the decision of the BIA, and remands for further proceedings consistent with this opinion.
Where the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, this court reviews the BIA’s decision. The BIA’s legal conclusions are reviewed de novo. This court will uphold the BIA’s factual findings so long as they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Under this deferential standard of review, reversal is warranted only if the evidence compels a different result; this court will not overturn the BIA’s findings simply because this court might have decided the case differently. On the other hand, remand may be warranted when the BIA overlooks key aspects of an asylum-seeker’s claim and might reach a different conclusion after a more complete evaluation of the record.
The Attorney General has discretion to grant an alien asylum under the Immigration and Nationality Act if the alien qualifies as a refugee. A refugee is a person who is unwilling or unable to return to his native 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. A showing of past persecution will trigger a rebuttable presumption that the alien has a well-founded fear of future persecution. Even if an alien cannot show he has been subject to past persecution, he may nevertheless be eligible for asylum if he has a well-founded fear of future persecution. This requires the alien to show that his fear of persecution is both subjectively genuine and objectively reasonable. To prevail under this standard, the alien must present specific, detailed facts showing a good reason to fear that he will be singled out for persecution.
The statute at 8 U.S.C. § 1101(a)(42)(B) creates four classes of refugees: (1) those who have been forced to have an abortion or who have been involuntarily sterilized; (2) those who have been persecuted for failing or refusing a coerced abortion or sterilization or for other resistance to a coercive population control program; (3) those who have a well-founded fear that they will be forced to have an abortion or be sterilized; and (4) those who have a well-founded fear that they will be persecuted for failing or refusing such procedures or for resisting a coercive population control program. The Attorney General has concluded in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) that only those who have themselves been forced to have an abortion or have been involuntarily sterilized fall into the first class of refugees. In Matter of J-S-, it was held that an asylum-seeker whose spouse has suffered a forced abortion or sterilization is not per se eligible for asylum. Rather, the applicant must show that he or she personally suffered or will suffer persecution for resisting a coercive population-control program. Accordingly, under Matter of J-S-, evidence that the applicant’s spouse was forced to abort a pregnancy or undergo involuntary sterilization is relevant to the applicant’s claim but does not alone establish eligibility; the applicant must also present evidence of his or her own past persecution or reasonable fear of future persecution.
The Attorney General’s interpretation of 8 U.S.C. § 1101(a)(42)(B) in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the rationale applies with equal force to the claim of an asylum-seeker like the respondent whose parent has been forced to have an abortion or undergo sterilization.
The respondent does not fall into the first category of refugees created by 8 U.S.C. § 1101(a)(42)(B), therefore, under the rationale of Matter of J-S-, the respondent is not automatically eligible for asylum on the basis that his mother was sterilized against her will. Nor does the respondent fall into the second class of refugees as he has not “failed or refused” to be sterilized and has not otherwise “resisted” China’s one-child policy. He may, however, fall within the third and fourth classes of refugees under 8 U.S.C. § 1101(a)(42)(B)—those who have a well-founded fear of involuntary sterilization (forced abortion obviously is not at issue in the instant case as the respondent is a male), or those who fear persecution for refusing sterilization or otherwise resisting a coercive population-control program.
Where the respondent has consistently argued that he fears he will be involuntarily sterilized and otherwise persecuted because of his and his family’s violation of China’s one child policy, his claim is based partly on a theory of imputed political opinion. The BIA’s rejection of this argument on the basis of a perceived lack of circuit precedent to support it is an error of law. It is well established in the Seventh Circuit that an alien may base a persecution claim on imputed political opinion. Under this theory the alien is asserting that his persecutors have mistreated or will mistreat him because they attribute someone else’s—often a family member’s—political beliefs to him. To prevail on this sort of claim, the alien must show that (1) his persecutors attributed the political opinion of another to him, and (2) the attributed opinion motivated or will motivate the persecution.
The Second and Ninth Circuits have recognized that an asylum claim alleging persecution for resistance to a coercive population-control program under 8 U.S.C. § 1101(a)(42)(B) may be partially based on imputed political opinion—more specifically, such a claim may rely in part on a parent’s persecution for resisting a coercive population-control program. This is a specific application of the more general imputed political-opinion theory—already established in the Seventh Circuit—and this court will therefore follow the lead of these circuits in recognizing it in the instant case.
The respondent has submitted specific and detailed evidence tending to show that he and his family have been uniquely targeted by the population control committee in their village based on their persistent resistance to China’s one-child policy. He submitted evidence that his family spent many years hiding from population-control authorities in their village; his mother lost a child in utero when she fell trying to escape population-control authorities; his mother was forcibly sterilized after his birth; his aunt suffered a forcible abortion and was thereafter involuntarily sterilized; his parents had to give away one of his sisters because they could not afford her; and his family was subjected to significant economic hardship as a result of their extreme resistance to China’s one-child policy.
Where the BIA summarily rejected the imputed political-opinion basis of the respondent’s claim without analysis, having erroneously concluded that “current caselaw” in this circuit did not support it, and where the concept of persecution based on imputed political opinion has actually long been recognized in this circuit, and the respondent’s claim falls comfortably within this theory of relief, remand is in order to give the BIA the first opportunity to pass judgment on a claim it previously ignored. The BIA should consider the totality of the circumstances to determine whether harm suffered by family members in combination with other factors may constitute past persecution of the applicant, even if government authorities neither directly harmed the applicant nor harmed the family member in order to target the applicant.
There is another reason to return this case to the BIA: the respondent also presented evidence that as a member of the hei haizi—a child ineligible for registration on the hukou because he was born in violation of China’s population control program—he has been and will continue to be deprived of many fundamental rights and governmental benefits. Many of the hardships the respondent suffered as a hei haizi and will continue to face if returned to China are economic in nature. Because of his unlawful birth, the respondent and his family were subjected to severe financial deprivation; this took the form of enormous fines—at his birth and thereafter to allow him to attend school—as well as the denial of the land and food allotment permitted to lawfully born children. His father testified via affidavit that as a result of these fines, the family—already very poor—often went hungry. The respondent submitted evidence that as an unregistered person, he is denied access to government-provided higher education, health care (except that which can obtained at high cost on the black market), and many forms of employment. Where the BIA did not evaluate the cumulative significance of these hardships when evaluating Chen’s claim of past persecution (on political-opinion grounds or based on his membership in a particular social group), and where the BIA did not properly account for this evidence in evaluating the reasonableness of his fear of future persecution, its treatment of this claim, too, was incomplete.
It is well established that persecution can take the form of economic deprivation as well as physical mistreatment; a claim of persecution based on economic deprivation generally requires a showing of a deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life. This does not mean, however, that the alien must establish a total deprivation of livelihood on account of his protected status. Considered in the aggregate, the economic hardships imposed as a penalty for violation of China’s population control policy may, in appropriate cases, constitute persecution.
Beyond economic deprivations, the respondent has presented evidence that as a hei haizi he is deprived of other fundamental rights as well: He cannot acquire property or move freely about the country, and may be denied the right to marry and have children. This court has often emphasized the importance of evaluating the “cumulative significance” of multiple claimed hardships in evaluating asylum claims. Where the BIA dismissed the respondent’s claim of persecution based on his status as a hei haizi by reference to a solitary piece of evidence—the fact that the respondent was able to obtain a passport and therefore “was given the right to travel by the Chinese government,” and where the BIA ignored much of the respondent’s evidence and never addressed his argument about the combined effect of the economic and noneconomic deprivations he and his family have suffered and that he contends he will continue to suffer if returned to China, its treatment of the claim is woefully inadequate.
This court does not conclude that the record compels a conclusion that the respondent suffered past persecution or has an objectively reasonable fear of future persecution based on imputed political opinion or membership in his family or the hei haizi, or both. Because the BIA’s analysis flowed from a misapprehension of the state of this circuit’s caselaw and was otherwise incomplete, these are matters for the BIA to address on remand, in light of the principles we have explained here and based on the totality of the evidence. Accordingly, this court grants the petition for review, vacates the decision of the BIA, and remands for further proceedings consistent with this opinion.
Wednesday, May 5, 2010
Kim v. Holder, No. 06-73415 (9th Cir. May 3, 2010).
The government must prove the respondents’ removability by clear and convincing evidence. Reviewing the BIA’s findings for substantial evidence, this court concludes that the government met its burden.
Even though the government was unable to produce the respondents’ alien files containing their applications for adjustment of status, the government presented a constellation of circumstantial evidence linking the respondents to the scheme perpetrated by a corrupt INS officer in taking bribes for providing fraudulent “Green-Cards.”
Where the respondents’ names and an alien file numbers appeared on a list that the corrupt INS officer submitted to law enforcement authorities identifying the non-citizens who obtained LPR status through the conspiracy, and where the respondents’ mother, in her sworn testimony to ICE, admitted that she procured her LPR status as the spouse of apriority worker—Alien with Extraordinary Ability (such as a Nobel Prize recipient), an Outstanding Professor or Researcher, or a Multinational Executive or Manager---through payment of $30,000 to one of the coconspirators and undergone a sham interview with the corrupt INS officer at a coconspirator’s home, but her husband did not fit any of the descriptions and, in fact, never had LPR status within the United States, this court finds that the government has proved the respondents’ removability by clear and convincing evidence, and the BIA’s removability determination was accordingly supported by substantial evidence.
The respondents’ contention that the BIA’s refusal to consider their green cards as the functional equivalent of an “immigrant visa” for the purposes of INA § 212(k), 8 U.S.C. § 1182(k) violates equal protection because it is based on an irrational distinction between arriving aliens, or applicants for admission and returning resident aliens is without merit. Because the respondents were improperly granted their green cards, their LPR status was void ab initio. Their so-called green cards conferred no rights and the respondents accordingly were not charged with removability as returning LPRs, but rather were charged and found removable as non-citizens lacking a valid entry document at the time of their admission from trips abroad. Because they do not belong to the class of returning LPRs who are allegedly similarly situated to applicants for admission, they cannot show injury from the alleged discrimination, much less any effective redress that this court could afford them, therefore, this court dismisses the respondents’ equal protection challenge for lack of standing.
This court does not need to reach the issue of whether the term “immigrant visa” as used in INA § 212(k), 8 U.S.C. § 1182(k) can be read to encompass green cards because the respondents did not have valid green cards at the time of entry and therefore lack standing to pursue this claim as well.
The government has proved the respondents’ removability, so thepetition for review is denied in part. Because the respondents lack standing to raise their equal protection claim and their claim that their green cards provide a predicate for a § 212(k) waiver of inadmissibility, the petition for review is dismissed in part.
Even though the government was unable to produce the respondents’ alien files containing their applications for adjustment of status, the government presented a constellation of circumstantial evidence linking the respondents to the scheme perpetrated by a corrupt INS officer in taking bribes for providing fraudulent “Green-Cards.”
Where the respondents’ names and an alien file numbers appeared on a list that the corrupt INS officer submitted to law enforcement authorities identifying the non-citizens who obtained LPR status through the conspiracy, and where the respondents’ mother, in her sworn testimony to ICE, admitted that she procured her LPR status as the spouse of apriority worker—Alien with Extraordinary Ability (such as a Nobel Prize recipient), an Outstanding Professor or Researcher, or a Multinational Executive or Manager---through payment of $30,000 to one of the coconspirators and undergone a sham interview with the corrupt INS officer at a coconspirator’s home, but her husband did not fit any of the descriptions and, in fact, never had LPR status within the United States, this court finds that the government has proved the respondents’ removability by clear and convincing evidence, and the BIA’s removability determination was accordingly supported by substantial evidence.
The respondents’ contention that the BIA’s refusal to consider their green cards as the functional equivalent of an “immigrant visa” for the purposes of INA § 212(k), 8 U.S.C. § 1182(k) violates equal protection because it is based on an irrational distinction between arriving aliens, or applicants for admission and returning resident aliens is without merit. Because the respondents were improperly granted their green cards, their LPR status was void ab initio. Their so-called green cards conferred no rights and the respondents accordingly were not charged with removability as returning LPRs, but rather were charged and found removable as non-citizens lacking a valid entry document at the time of their admission from trips abroad. Because they do not belong to the class of returning LPRs who are allegedly similarly situated to applicants for admission, they cannot show injury from the alleged discrimination, much less any effective redress that this court could afford them, therefore, this court dismisses the respondents’ equal protection challenge for lack of standing.
This court does not need to reach the issue of whether the term “immigrant visa” as used in INA § 212(k), 8 U.S.C. § 1182(k) can be read to encompass green cards because the respondents did not have valid green cards at the time of entry and therefore lack standing to pursue this claim as well.
The government has proved the respondents’ removability, so thepetition for review is denied in part. Because the respondents lack standing to raise their equal protection claim and their claim that their green cards provide a predicate for a § 212(k) waiver of inadmissibility, the petition for review is dismissed in part.
Subscribe to:
Posts (Atom)