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Cheng v. Attorney General of the United States

October 6, 2010

FEI MEI CHENG A/K/A PEI KWAN LEE, PETITIONER,
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review of an Order of the Board of Immigration Appeals, (Agency Case Number A077-354-013).

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued July 12, 2010

Before: FUENTES, ALDISERT, and ROTH, Circuit Judges.

OPINION

Fei Mei Cheng ("Cheng") is a citizen and native of China. While living in China's Fujian Province, Cheng became pregnant but under Chinese law was too young to marry her boyfriend. Over the course of her pregnancy, local family planning officials employed a pattern of escalating threats in an effort to persuade her to abort the pregnancy, but Cheng resisted and gave birth to a daughter. In response to her resistance to the population control laws and to induce her to undergo a sterilization procedure, the officials confiscated the family farm and truck, forbade Cheng from working on the farm, threatened to take her newborn daughter away from her, and imposed various economic and other sanctions. Cheng was ultimately forced to have an intrauterine device ("IUD") inserted, and soon thereafter, she and her boyfriend fled to the United States. Upon arrival, she applied for protective relief, invoking 8 U.S.C. § 1101(a)(42), which makes eligible for asylum a "person who has been forced to . . . undergo involuntary sterilization, or who has been persecuted for . . . other resistance to a coercive population control program."

The Immigration Judge ("IJ") denied her application and the Board of Immigration Appeals ("BIA") affirmed, concluding, among other things, that Cheng had not been persecuted and that the mistreatment to which she was subjected was unrelated to her resistance to China's population control policies. We disagree with both of these conclusions and will therefore grant the petition for review.

I.

A.

The facts underlying Cheng's asylum application, which the IJ found credible and which are uncontested, are as follows. Cheng was born and raised in China's Fujian Province. Fujian Province is "known for being a place where the one-child policy has been enforced with special vigor-a reputation that persists still today." Lin v. Mukasey, 517 F.3d 685, 688 (4th Cir. 2008) (quotation marks, brackets, and citation omitted). In June 1995, when she was nineteen years old, Cheng met and started dating Zailin Chen ("Chen"), a twenty-three-year-old man who lived in her village. Cheng became pregnant in March 1996. Although Cheng and Chen wanted to get married, the two were not permitted to wed because they fell below their village's age requirement for marriage-in the village, women were not permitted to marry before the age of twenty-three, and men were not allowed to be married before the age of twenty-five.

In May 1996 township officials discovered that Cheng was pregnant. The officials attempted to pressure Cheng into having an abortion, but she refused. The official responsible for birth control and family planning in Cheng's township, Feng Ying, then paid a visit to Cheng at her parents' home, where Cheng lived. Ying insisted that Cheng have an abortion and informed her that if she did not terminate her pregnancy, her reputation would be damaged and she would lose her job. Again, Cheng refused to comply with these demands. Approximately one month later, four township officials went to Cheng's home to confront her about the pregnancy. Cheng was not home at the time of the visit, but her mother was, and the officials warned her mother that if Cheng did not agree to have an abortion voluntarily, the officials would force her to do so.

As a result of these threats, Cheng and Chen went into hiding in another city, where they stayed with Chen's aunt. While Cheng and Chen were away, township officials returned to Cheng's parents' house in the middle of the night. The officials were "furious" when they discovered that Cheng was not home, and they threatened her parents with seizure of the family's farm and truck, which were the source of the family's livelihood, if Cheng did not cooperate with the authorities and have an abortion. (App. at 736.)

Cheng continued to defy the officials' demands and gave birth to a daughter on January 1, 1997. When township officials learned that Cheng had given birth, they immediately followed through on their threat to confiscate the farm and truck, which Cheng and her family "depended on . . . to make a living." (Id.) In addition, Ying, the leader of the township's family planning cadre, went to Cheng's residence to inform the family that because Cheng had violated the law by refusing to have an abortion, the entire family was forbidden from working on the confiscated farm. Ying also ordered Cheng to participate in a six-month re-education program. Finally, the township government ordered that Cheng and Chen each be sterilized. Cheng's family members attempted on multiple occasions to persuade the officials not to compel the couple to be sterilized, but the officials rejected their requests. After their family members' unsuccessful conversations with township officials, Chen (whom Cheng characterized as young and temperamental) engaged in a physical altercation with a government officer and was detained.

During Chen's detention, the officials escalated the pressure on Cheng. They informed her that if she did not comply with their orders, the government would take her baby from her, and Chen would be detained for months. If Cheng relented, however, they informed her that she could keep the baby, that Chen would be released, and that the confiscated farm and truck would be returned to Cheng and her family. To sweeten the deal, the officials informed Cheng that if she relented immediately, she would not have to be sterilized, but instead could have an IUD inserted. "Under such pressure and out of . . . concern about the fate of [the] new baby and [Chen]," Cheng acceded to the officials' orders. (Id. at 738.) As her declaration indicates, Cheng thought that she could change her mind and escape the procedure at the last minute, but she was immediately "dragged" to a minivan and driven to a medical clinic. (Id.) According to the unopposed statement in Cheng's declaration, an IUD is meant to be inserted when a woman is having her period; because she was not having her period at the time when she was forced to have the IUD inserted, the procedure was "very painful" and Cheng "screamed" in pain when the IUD was inserted. (Id.) After the procedure, she was required to submit to gynecological examinations every three months in order to verify the IUD's presence. She found it difficult to keep all of these appointments because she had to work in another city to make ends meet; whenever she missed an appointment, she was assessed a fine that she could not afford to pay.

Once her daughter was old enough, Cheng sought to send her to daycare. The township government informed Cheng that, because she had disobeyed the family planning laws, her daughter would not be permitted to attend daycare. She pleaded with township officials, who ultimately agreed to admit her daughter but required Cheng to pay twice the regular tuition on account of her violation of the population control laws.

Thereafter, township officials learned that one of Cheng's neighbors was attempting to have a baby in hiding in violation of the family planning policy. The officials forced the neighbor to undergo a sterilization procedure. During the procedure, Cheng's neighbor was treated "like a pig"-her hands and legs were tied, she was not given sufficient anesthesia, and she screamed throughout the operation. (Id. at 739.) Cheng knew that she would be exposed to the same harm if she ever attempted to have another child, which she intended to do. In 2000, she and Chen paid snakeheads to smuggle them out of China and into the United States.*fn1

B.

Shortly after her arrival in the United States, Cheng was served with a Notice to Appear and charged with being removable pursuant to 8 U.S.C. § 1182(a)(6)(C)(1) and 1182(a)(7)(A)(i)(I). She applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). On November 1, 2005, the IJ convened a hearing at which Cheng testified to the facts reviewed above. Cheng further testified that she had given birth to a second child shortly after entering the United States, and that at the time of her testimony she was pregnant with a third child. She testified that she feared that if she were compelled to return to China with two foreign-born children, she would be sterilized.

The IJ, finding the entirety of Cheng's testimony credible, granted her application for asylum. In an oral decision, the IJ first found that Cheng had not satisfied her burden of proving that she was the victim of past persecution-the involuntary insertion of an IUD and the requirement that Cheng submit to regular gynecological examinations, the IJ concluded, were insufficiently severe to constitute persecution. Based upon the fact that Cheng "would return to China having three children with two of them being unauthorized," however, the IJ concluded that there was a reasonable probability that Cheng would be sterilized-and, therefore, persecuted, see 8 U.S.C. § 1101(a)(42)-if she were compelled to return to China. (App. at 277.) The IJ additionally noted that beyond the risk of sterilization, Cheng faced the prospect of incurring severe economic distress as a result of the fines and fees associated with violating China's family planning policies. The IJ thus granted Cheng's asylum application, but certified the matter to the BIA in light of the dearth of Board precedent on the issues raised by the case.

The BIA, in a non-precedential opinion, vacated the IJ's order and remanded the case for further proceedings. The BIA first concluded that mandatory IUD insertion alone does not bring a person within the definition of "refugee" in the Immigration and Nationality Act ("INA"). Additionally, the BIA observed that, following the IJ's decision in this case, it had issued two precedential decisions addressing the asylum applications of persons claiming to have been persecuted pursuant to China's one-child policies, which made it appropriate for the IJ to reconsider the case in light of the recent decisions.*fn2 The BIA thus remanded the case to the IJ to address the impact of the new authority upon Cheng's asylum application.

On remand, the IJ denied Cheng's application. He explained that it was "curious and troublesome," (id. at 77), that the BIA had elected not to address the significance of Cheng's resistance to the IUD and the resultant harms she encountered for purposes of the asylum statute's "other resistance" prong,*fn3 but he interpreted the Board to have implicitly rejected Cheng's argument that she satisfied the "other resistance" criteria. § 1101(a)(42). As to whether Cheng had a reasonable fear of future persecution in the form of sterilization based upon her past experiences and the fact that she then had three children, the IJ concluded that the mere fact that Cheng had two foreign-born children was not enough to satisfy her burden of establishing a likelihood that she would be sterilized if forced to return to China. The IJ concluded, finally, that Cheng was not eligible for withholding of removal or CAT relief.

The BIA affirmed the IJ's order in a single-member, nonprecedential decision. In its decision, the Board relied primarily upon In re M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008), a precedential decision issued after the IJ's second opinion wherein the BIA held (1) that the insertion of an IUD does not constitute persecution in and of itself absent aggravating circumstances, and (2) that the reinsertion of an IUD typically is not persecution on account of resistance to a family program, since women in China whose IUDs fall out or are removed always have the devices reinserted, whether or not they resisted the family planning program. See id. at 643 ("[B]ecause reinsertion is a standard procedure in China . . . [reinsertion of an IUD is] a routine medical procedure that is carried out regardless of the manner in which the first IUD was removed or fell out.").

Applying In re M-F-W- & L-G- to Cheng's case, the BIA held that the insertion of Cheng's IUD did not occur under sufficiently aggravating circumstances to constitute persecution. Even if the mandatory use of an IUD were sufficient to constitute persecution, moreover, the BIA concluded that Cheng had failed to establish a nexus between the acts complained of and her resistance to China's family planning program. As the BIA explained, "the respondent has offered no basis to show that the IUD was inserted because of her resistance to China's family policy and not merely as part of a routine medical and family planning policy." (App. at 5.) Any economic harms Cheng experienced as a result of her township officials' actions, the Board stated, were not "substantial" enough to warrant a finding of persecution. (Id.) The BIA thus dismissed Cheng's appeal, and she thereafter filed a timely petition for review with this Court.

II.

"Because the BIA issued an opinion, rather than a summary affirmance, we review the BIA's (rather than the IJ's) decision." Espinosa-Cortez v. Att'y Gen., 607 F.3d 101, 106 (3d Cir. 2010) (internal quotation marks and citation omitted). "We review the BIA's legal determinations de novo, subject to the principles of deference articulated in Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)." Kaplun v. Att'y Gen., 602 F.3d 260, 265 (3d Cir. 2010) (citations omitted). We apply a deferential "substantial evidence" standard of review to the agency's factual findings. McAllister v. Att'y Gen., 444 F.3d 178, 185 (3d Cir. 2006). Under this standard, "we may reverse only if a reasonable adjudicator would be compelled to conclude to the contrary." Toure v. Att'y Gen., 443 F.3d 310, 316 (3d Cir. 2006) (quotation marks, brackets, and citation omitted); see also 8 U.S.C. § 1252(b)(4)(B); I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). However, our deference under this standard "is expressly conditioned on support in the record," Toure, 443 F.3d at 316 (quotation marks and citation omitted), and "[t]he BIA may not ignore evidence in the record that favors the petitioner." Kang v. Att'y Gen., --- F.3d ----, 2010 WL 2680752, at *4 (3d Cir. 2010) (citation omitted); accord Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir. 2006) ("[T]he requirement that the BIA's decision be supported by substantial evidence is not an empty one."); Valdiviezo-Galdamez v. Att'y Gen., 502 F.3d 285, 290-91 (3d Cir. 2007).

III.

In 1996, Congress passed and President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Among other things, IIRIRA added the following language to the then-existing definition of "refugee" in the Immigration and Nationality Act ("INA"):

[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

Pub. L. No. 104-208, Tit. VI-A, § 601(a)(1), 110 Stat. 3009-546, 3009-689 (codified at 8 U.S.C. § 1101(a)(42)). Cheng argues that being forced to wear an IUD constitutes "sterilization" for purposes of this statute, and that, alternatively, she was persecuted on account of her resistance to China's coercive population control program. We review ...


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