Jonaitiene v. Holder-7th Circuit

In 2000 husband and wife, citizens of Lithuania, entered the U.S. with illegally-obtained visas. They have two children born in Lithuania and a third born in the U.S. When the visa fraud was discovered, they cooperated and were sentenced to one year of probation. The government charged them with removability for being inadmissible at the time of entry and for having been convicted of a crime involving moral turpitude. 8 U.S.C. 1227(a)(1)(A), 1182(a)(7)(B)(i)(II), and 1227(a)(2)(A)(i). Petitioners applied for asylum and withholding of removal. The Immigration Judge denied the request for asylum; the Board of Immigration Appeals affirmed. The Seventh Circuit affirmed. The affidavits established, at best, that the government of Lithuania is unstable and does little to protect its citizens. Fear of retribution from co-defendants for an alien's cooperation with the U.S. government, in exchange for a reduced sentence, is not a well-founded fear based on a protected ground.

For the Seventh Circuit

Nos. 10-1100 & 10-1101

RASA JONAITIENE AND MARIUS BUBENAS,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

On Petition for Review of the Orders of the Board of Immigration Appeals. Nos. A077-651-529, A077-495-492

ARGUED OCTOBER 28, 2010—DECIDED SEPTEMBER 26, 2011 

Before MANION, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge. Rasa Jonaitiene and Marius Bubenas were citizens of Lithuania in 2000, when each gained entry into the United States through the use of illegally-obtained visas. They do not dispute that Bubenas, along with Jonaitiene’s brother Daruas Daugela, arranged to obtain a United States visa from a man named Darius Reika. Bubenas used that visa to come to the United States in March 2000, and Jonaitiene followed in July of that year. Bubenas and Jonaitiene have three children together, two born in Lithuania and the third born in the United States.

Eventually, the United States government became aware of the visa fraud scheme that included bribery of a United States Foreign Officer in Lithuania to obtain the visas, and the petitioners were both arrested and charged in three counts of a nineteen-count indictment in federal court. The petitioners agreed to cooperate in the investigation and prosecution of other members of the scheme. Based on that cooperation, the government dismissed two counts of the superceding indictment and filed a substantial assistance motion. Petitioners pled guilty to the remaining count and were sentenced to one year of probation. On June 17, 2008, the Department of Homeland Security initiated removal proceedings against petitioners, charging them with removability for being inadmissible at the time of entry and for having been convicted of a crime involving moral turpitude. 8 U.S.C. § 1227(a)(1)(A), 1182(a)(7)(B)(i)(II), and 1227(a)(2)(A)(i). The petitioners conceded their removability, but sought relief from removal through applications for asylum and withholding of removal.

Petitioners contend that they are fearful of returning to Lithuania because of threats from Darius Reika, who resides there, and because the Lithuanian government is either unwilling or unable to protect them. In their written statements as well as their testimony at the hearing, the petitioners detailed threatening phone calls made to them by Reika after their arrest.

Jonaitiene’s brother, who had arranged for the payments to Reika for the visas and who also resides in the United States, received threats from Reika as well, and ultimately committed suicide. The petitioners also introduced evidence that the Lithuanian newspapers had published articles detailing their cooperation in the government investigation into the visa fraud scheme. They asserted that because of that cooperation, they would be in danger from Reika if returned to Lithuania. They also asserted that they would be considered traitors in their country, but could not explain upon questioning why a cooperating witness in a criminal case would be considered a traitor, nor how such cooperation in identifying fraud in the American embassy would be considered a traitorous act against Lithuania.

In addition to the threats from Reika, the petitioners provided evidence that after Jonaitiene’s threatening calls, the door to Jonaitiene’s mother’s apartment was set on fire in Lithuania. The petitioner’s children were staying with Jonaitiene’s mother at that time. In response to that fire, the United States government brought the children and Jonaitiene’s mother to the United States temporarily under Significant Public Benefit Parole. The fire department investigated the blaze, but according to the petitioners the police did not do so.

The only evidence presented relating to the Lithuanian government was their inadequate response with respect to Reika and the fire. When the visa fraud scheme was first revealed, Reika was detained by the Lithuanian police for two weeks but then released. No charges were filed against Reika. Moreover, as was noted, the petitioners argue that the police failed to investigate the fire at the apartment.

The Immigration Judge (IJ) denied the request for asylum, and the Board of Immigration Appeals (BIA) affirmed in a separate opinion. The IJ held that the harm that the petitioners feared in Lithuania was not on account of a protected ground, and that no competent evidence was presented to support the contention that the government was complicit in the visa fraud or would be supportive of the persons such as Reika that the petitioners feared. The BIA echoed those holdings in its separate opinion. It agreed that the petitioners had failed to provide evidence of government complicity, and noted that a personal dispute cannot support a claim of asylum. Relying on our decision in Jun Ying Wang v. Gonzales, 445 F.3d 993, 999 (7th Cir. 2006), the BIA noted that the fear of retribution from co-defendants for an alien’s cooperation with the United States government, in exchange for a reduced sentence, is not a well-founded fear based on a protected ground. Accordingly, the BIA held that the petitioners failed to establish a nexus between the feared persecution and a protected ground.

Where the BIA adopts the decision of the IJ and supplements that decision with its own reasoning, we review the IJ’s decision as supplemented. Kaharudin v. Gonzales, 500 F.3d 619, 622 (7th Cir. 2007). Under the substantial evidence test, we affirm the denial of asylum and of withholding of removal by the IJ and BIA if it is “‘supported by reasonable, substantial and probative evidence on the record considered as a whole.’ ” Wang, 445 F.3d at 997, quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006).

In order to obtain asylum, the petitioners must establish that they are refugees, which is defined as persons unable or unwilling to return to their 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.” 8 USC § 1101(a)(42)(A); Wang, 445 F.3d at 997; Hernandez-Baena v. Gonzales, 417 F.3d 720, 722-23 (7th Cir. 2005). The first part of that definition may be problematic for the petitioners but we need not tarry long there because the latter part is insurmountable.

The first obstacle that petitioners face is that persecution under that definition does not encompass purely private actions. In order to demonstrate persecution or a well-founded fear of persecution, the petitioners must demonstrate that the threatening conduct is by the government, or that it is by private persons whom the government is unwilling or unable to control. Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); Galina v. I.N.S., 213 F.3d 955, 958 (7th Cir. 2000). The petitioners have presented very little evidence of such government complicity or inability. We have only allegations that Reika was not prosecuted by the Lithuanian government for the visa fraud scheme, and that the police did not investigate the fire at the apartment. Missing is any indicator as to why those decisions were made, and whether they constituted a deviation from standard operating procedures. We do not know, for instance, whether the investigation of fires is normally left to the fire department, which did investigate the incident, nor do we know whether the Lithuanian government was presented with sufficient evidence to prosecute Reika but chose not to do so. Nevertheless, even if the allegations here were sufficient to demonstrate persecution, petitioners do not even allege that it is on account of one of the protected grounds.

The petitioners assert in a conclusory manner that they were members of a particular social group, but provide no identification of that alleged group other than to identify themselves as informants whose cooperation was induced by the government through promises of protection. Rather than explain how that constitutes a “social group” under the refugee definition, they argue that the United States government created a dangerous condition by inducing their cooperation, and therefore had an affirmative duty to protect them from that danger.

We have rejected a similar argument in Wang v. Gonzales, 445 F.3d 993 (7th Cir. 2006). Jun Ying Wang, a native of China, was present in the United States unlawfully having overstayed her visitor’s visa, when she was arrested for her part in a scheme to obtain Social Security cards using fraudulent documents. Id. at 994. Wang cooperated with the government’s investigation and in turn received a more lenient sentence. Id. She applied for asylum based on her fear that she would be attacked by her codefendants, who were in China and sought retribution for her cooperation against them. Id. We rejected the asylum claim, holding that Wang had failed to demonstrate that the persecution she feared was on account of one of the five statutorily-protected grounds. Wang did not explain how her claim fit within one of the protected grounds, choosing instead to argue that the term “refugee” should not be interpreted too rigidly and that she should be eligible because her persecution stemmed from her assistance to the United States government. Id. at 997. The petitioners mirror those arguments in their briefs to this court. We rejected that argument in Wang, holding that we are bound by the language of the statute, and that fear of persecution as a result of a personal dispute rather than on account of a person’s membership in a protected group fails to satisfy the definition of refugee. Id. at 998; Marquez v. I.N.S., 105 F.3d 374, 380 (7th Cir. 1997).

A “social group” under the Act is one ‘whose members share “common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities.’” Ramos v. Holder, 589 F.3d 426, 428 (7th Cir. 2009), quoting In re Kasinga, 21 I. & N. Dec. 357, 366 (BIA 1996); see also Poroj-Mejia v. Holder, 397 Fed.Appx. 234, 237, 2010 WL 4102295, 2 (7th Cir. 2010). The social group, however, cannot be defined merely by the fact of persecution. See Castillo-Arias v. U.S. Atty. Gen., 446 F.3d 1190, 1198 (11th Cir. 2006) (“The risk of persecution alone does not create a particular social group within the meaning of the INA . . .”) Nor may a social group be defined solely by the shared characteristic of facing dangers in retaliation for actions they took against alleged persecutors. Wang v. Gonzales, 445 F.3d 993, 998 (7th Cir. 2006); Pavlyk v. Gonzales, 469 F.3d 1082, 1088-89 (7th Cir. 2006); Poroj-Mejia, 397 Fed.Appx. at 237, 2010 WL 4102295 at 2. The petitioners have not attempted to distinguish their claim from those precedents, and in fact have made no argument as to how they constitute a protected group under the Act. They rely instead on their generalized assertion that the government must grant asylum because it placed them in danger by inducing their cooperation in the criminal case. That argument suffers from the glaring problem that they chose to cooperate in return for the benefit of a lesser sentence, and that the choice to place themselves in that danger was theirs not that of the government. More fundamentally, petitioners fail to identify any legal authority for granting asylum on that basis. As we noted in Wang, “there are legal alternatives for an alien placed in danger by virtue of her cooperation with the government. . . . [T]he government may seek an ‘S-visa’ on behalf of an alien cooperating in a criminal investigation.” Wang, 445 F.3d at 999 n.2, citing 8 U.S.C. § 1101(a)(15)(S)(I) and United States v. Zendeli, 180 F.3d 879, 881 (7th Cir. 1999). In this case as in Wang, the government has chosen not to pursue that option for reasons not clear on the record. The S-visa, not asylum, is the avenue by which the petitioners could lawfully remain in the United States, but that is not a hand that this court can force. Because the petitioners have failed to demonstrate a well-founded fear of persecution on account of a protected ground for purposes of asylum, they cannot meet the more stringent standards of withholding of removal which require a showing of a clear probability of persecution. Toure v. Holder, 624 F.3d 422, 428 (7th Cir. 2010); Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th Cir. 2007).

The remaining arguments are similarly unavailing. The petitioners contest the denial of their request for a continuance of the hearing, asserting that it denied them due process because their counsel was not able to adequately develop their case. An immigration court’s denial of an alien’s request for a continuance is reviewable for abuse of discretion, but the petitioners have failed to demonstrate any abuse of discretion here. Vahora v. Holder, 626 F.3d 907, 915, 919 (7th Cir. 2010); Kucana v. Holder, 130 S. Ct. 827, 839-40 (2010). To the extent that they are claiming a due process violation, they fail for the additional reason that they have not adequately alleged prejudice from the denial of the continuance. Even before this court, they still have not identified what evidence they hoped to obtain by that continuance. A due process claim cannot succeed absent concrete evidence that the due process violation had the potential to affect the outcome of the hearing. Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir. 2000). Where a petitioner does not “set forth any evidence that would have been presented or arguments that would have been made had his counsel been given additional time to prepare his case,” the petitioner has failed to demonstrate that the alleged violation potentially impacted the outcome of the hearing, and therefore the due process claim must be rejected. Id. at 1062; Kuciemba v. INS, 92 F.3d 496, 501 (7th Cir.1996.)

Moreover, the petitioners complain of the denial of their motion to remand, but again fail to allege with any specificity what evidence could have been obtained on that remand. The affidavits in support of that motion appear to establish at best that the government of Lithuania is unstable and does little to protect its citizens, but that helps the petitioners only if the actions against them by the private actor—Reika—were on account of one of the five protected grounds. They have failed to even argue that. The potential for private violence based on personal grudges, and the inability of a country to protect its citizens from such unlawfulness, is not a basis for asylum. As we noted, the government could have avoided this result by seeking an “S-visa” on behalf of the petitioners, but it did not do so. The asylum and withholding of removal limitations handcuff our ability to provide any relief here. The decision of the IJ and BIA is AFFIRMED. 

Lin Jiang, Seventh Circuit: Asylum/Motion to Reopen/Ineffective Assistance of Counsel/Changed Country Conditions

Lin Jiang v. Eric Holder, Jr., 09-3179
Court of Appeals for the Seventh Circuit. Friday, March 18th, 2011
Status: Published/Precedential
Lin_Jiang_v._Eric_Holder_Jr..pdf 
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In Lin Xing Jiang v. Holder, 2011 WL 923279 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of China who had unsuccessfully endeavored to reopen her completed removal proceeding in order to advance new claims for asylum based on her contention that her previous attorney had neglected to present a claim of religious persecution to the immigration court and on her alleged fear of persecution due to having giving birth to two children in the U.S. The circuit court ruled that the Board's decision did not constitute an abuse of discretion inasmuch as the petitioner had not complied with the procedural requirements pertaining to ineffective assistance of counsel (IAC) claims and she had not established changed country conditions in her native China in order to excuse her belated motion to reopen (MTR).

The petitioner came to the U. S. Virgin Islands in 2000 and was subsequently placed into removal proceedings for being present in the U.S. without having been admitted or paroled. She filed for asylum, claiming that she had been forced to abort a pregnancy by the Chinese government. The IJ concluded that her story was not credible and thus denied her applications for asylum, withholding of removal, and Convention Against Torture (CAT) relief. She appealed the IJ's decision to the BIA, which affirmed the decision without an accompanying opinion. Over four years later, well-beyond the 90-day statutory period, she filed her MTR seeking an exemption based on changed country conditions, citing 8 CFR § 1003.2(c)(3)(i). She asserted, for the first time, that she feared persecution based on her Catholic religion. She also cited, as new evidence, the fact that, since the time of her immigration court hearing, she had given birth to two children in the U.S. in violation of China's family planning policies. In addition, she averred that circumstances had worsened for practicing Catholics in China and that, should the U.S. remove her to her country, she would return to her former underground church and risk persecution. She also related that, although she had told her immigration lawyer that she had grown up as a Catholic in China, he did not include a claim for religious persecution in her initial petition for asylum.

In rejecting this MTR, the Board concluded that the petitioner had not submitted adequate evidence that members of underground churches were in more danger than they had been at the time of her hearing in 2002. The Board noted that the petitioner neither specifically claimed that her former attorney had been ineffective nor complied with the requisite procedural formalities for an IAC claim. In a footnote, the Board identified an additional procedural deformity by virtue of the petitioner's failure to submit a new application as part of the MTR.

Before the circuit court, the petitioner conceded that the evidence presented with her motion was not technically “new” evidence. She asserted, however, that it was not available at the initial hearing before the IJ because her attorney failed to present it, thus depriving her of the opportunity to present all of her persecution claims. Citing to Toure v. Holder, 624 F.3d 422 (7th Cir. 2010), the court pointed out that asylum seekers hold no Sixth Amendment right to counsel, but that it has recognized that the denial of effective assistance of counsel may, under certain circumstances, violate the due process guarantee of the Fifth Amendment. It noted that the Board has historically acknowledged this potential for a due process violation and has formulated explicit requirements for a litigant to advance an IAC claim in a precedent decision, Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). Explaining that the court has previously upheld the Lozada protocol (including the necessity to provide an affidavit establishing the agreement with counsel, provision of notice to counsel with an opportunity to respond to the allegations, and filing of a complaint with the governing disciplinary authorities or explaining why this was not accomplished), the court observed that the petitioner failed to satisfy any of the Lozada requirements or to even articulate a specific claim of IAC.

The court also concluded that the petitioner failed to demonstrate that there were material changes in the relevant circumstances in China, declaring that cumulative evidence that the conditions asserted in the original application persisted fails to meet this burden. The court took judicial notice of the State Department's 2009 Country Report, which actually offers a glimmer of hope for practicing Catholics as it suggests a relaxation of controls over their unregistered churches. In regard to the petitioner's expression of concern for having two children in the U.S. in contravention of China's one-child policy, the court cited to its prior decision in Cheng Chen v. Gonzales, 498 F.3d 758 (7th Cir. 2007), which held that an asylum applicant cannot claim changed country conditions based on her own actions in the U.S. when the conditions in the country of origin have not materially changed. In light of the failure of the petitioner to have timely petitioned the court following the BIA's initial decision against her, the court declined to address her arguments regarding the merits of her original asylum claim.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture or CAT), was opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp No. 51 at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the U.S. Apr. 18, 1988).

LIN v. HOLDER JR-Chinese asylum and withholding of removal 7th Circuit

A Chinese citizen's petition for review of a BIA's affirmance of an IJ's denial of an application for asylum and withholding of removal based on his wife's alleged abortion, is denied where: 1) even if the abortion and sterilization certificates should have been given more weight, they contain nothing to suggest that these procedures were forced upon petitioner's wife; 2) petitioner has given no reason to disturb the IJ's adverse credibility finding as, petitioner failed to meet his burden of explaining to the IJ's satisfaction the inconsistencies in his testimony and documents; 3) petitioner was afforded an opportunity for a full and fair hearing; 4) although the petitioner failed to exhaust his claim of ineffective assistance of counsel, this claim is without merit; and 5) the failure to exhaust aside, petitioner's claim that the IJ should have determined whether he was competent to testify is rejected as, when an alien raises the issue of his competency with the IJ, the IJ generally is not expected to sua sponte initiate a competency evaluation.

Long-Gang LIN,Petitioner, v. Eric H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 10-1401.

Argued Sept. 28, 2010. -- December 23, 2010
Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.

Nathaniel K. Hsieh, Attorney, Chicago, IL, for Petitioner.Blair O'Connor, Attorney, Oil, Attorney, Claire Workman, Attorney, Department of Justice, Washington, DC, for Respondent.

Long-Gang Lin sought asylum and withholding of removal based on his wife's alleged forced abortion. An Immigration Judge (“IJ”) denied relief based on an adverse credibility determination. The Board of Immigration Appeals (“Board”) affirmed. Lin petitions for review of the Board's decision, contending that the Board erred in affirming the IJ's adverse credibility determination. He also argues that the IJ and Board failed to recognize the ineffective assistance of his counsel and that he was denied his right to a fair hearing. Lastly, he claims that the IJ should have inquired into his competency to testify.

I. BACKGROUND

Lin is a native and citizen of the People's Republic of China. He entered the United States on August 25, 2005. The Department of Homeland Security (“DHS”) served him with a Notice to Appear and charged that he was subject to removal. Lin admitted the allegations in the Notice and applied for asylum and withholding of removal. He submitted supporting documentation, including purported abortion and sterilization certificates for his wife. DHS submitted Forensic Document Laboratory (“FDL”) findings concerning the certificates, and the IJ continued the proceedings to allow Lin to respond. Thereafter, Lin submitted a letter from his attorney challenging the FDL findings.

On April 16, 2008, the IJ held a hearing at which Lin testified. He stated that the documentation attached to his asylum application was genuine. He said that he had reviewed the contents of his application and that everything in it was true. Lin was born in Fuzhou City, Fujian Province, China in 1967 and married Yong Chen in 1996. They have a daughter who was born in 2000. Lin stated that he had a second-grade education and could not read or write. He worked at a thermos factory from 1987 through 1996, when he was fired for being “disruptive.” He explained that he would “sometimes hav[e] troubles with [his] co-workers, like ․ coming to blows.” In 1996, Lin opened a diner but was forced to close it in 2001 to make room for new development. Neither Lin nor his wife has worked since 2001; they have supported themselves and their daughter on their savings. Lin's wife still lives in Fuzhou.

Lin said that he and his wife wanted to have a second child because it had been “quite a while” since their daughter's birth. He “knew a little bit” about China's one child policy, including that they had to apply for permission to have a second child. They did not do so. He also knew that if they had a second child, they would have to pay a social compensation fee which they could not afford. According to Lin, his wife complied with the requisite quarterly pregnancy tests, but he had no documentation to prove it. He claimed that he told her not to go for the check-ups, but she did because the neighborhood birth control office told her she had to report.

Lin testified that his wife became pregnant with their second child in September 2004 and that on September 10, people from the neighborhood committee came to their house and discovered the pregnancy. He said that the committee conducted random checks and checks when they suspected someone might be violating the family planning laws. When questioned regarding how far along his wife was in the pregnancy, Lin stated that she was a little more than three months pregnant and that she looked pregnant. According to Lin, the members of the committee took his wife by force to the neighborhood committee office. He claimed he tried to resist and they “came to some physical contact”-“almost” to the point of “using fists.” He did not injure anyone, but said he threatened to do so. He added that they pushed each other, but did not knock each other down. Lin stated that he followed his wife to the neighborhood committee office where there was more “pushing around.” They were in the office for about twenty minutes. Lin claimed his wife was eventually taken away to a local hospital to have an abortion. When asked if she had any operation other than the abortion, he responded that she had not. He explained that he did not go to the hospital with his wife because the committee members told him that it was his “wife's ․ problem only” and if he followed her, he would be “in trouble too.” The IJ asked Lin about the purpose of the stop at the committee office on the way to the hospital. Lin could offer no explanation other than that “they took my wife there.”

Lin later stated that the abortion occurred on December 25, 2005. Subsequently, when asked when his wife was taken to the hospital, he answered, “December 5, 2003.” The IJ asked Lin if he was sure about the date, and Lin replied that the abortion occurred in December 2004. He then claimed that “the matter that happened at the hospital ․ happened the next day.” The IJ sought clarification of the dates and events. Lin said that the people from the neighborhood committee came to his house “August 20 something 2004.” The IJ indicated that Lin was giving different answers to the same question and again asked him for the date on which the neighborhood committee went to his house and discovered his wife's pregnancy. Lin said, “2004.” The IJ asked him to be more specific, and Lin claimed that “they discover[ed] the pregnancy in May 2004.” This prompted the IJ to ask how the members of the committee discovered that his wife was pregnant in May 2004. Lin claimed that her pregnancy was visible at that time. The IJ pressed further on the date, and Lin said that the officials came to his house in May to “do [a] regular check” for compliance at which time his wife was not pregnant. He stated that they came again in September 2004 and found her pregnant. The IJ asked if a pregnancy test was administered. Lin said that ultrasound technology was used in a hospital. The IJ asked when the abortion occurred; Lin answered, “December the 5th, 2004.” The IJ inquired whether Lin knew that was the third date he had given, and Lin explained that he had remembered that the date was December 5, 2004. According to Lin, his wife did not agree to the abortion but that did not “matter because the decision was made by the committee.”

Lin stated that he had an x-ray report to prove that his wife had an abortion. He claimed the doctor sent the report to his house in China and his wife mailed it to him. He claimed that the report said that pregnancy is forbidden and his wife is not allowed to become pregnant. When the IJ asked if anything was done to prevent his wife from becoming pregnant again, Lin said, “They didn't do anything. They just told us that no pregnancy anymore.” Lin testified that both he and his wife were physically capable of having another child.

The IJ asked Lin why he feared returning to China. Lin responded that he “would be unemployed” and he could not find work because he was uneducated and illiterate. Lin admitted that this was part of the reason he came to the United States and claimed the other part was the loss of his second child.

As mentioned, Lin submitted documentation to support his claim. In his political asylum statement submitted with his application, Lin wrote that his wife became pregnant for the second time in September 2004 and that on December 5, 2004, the family planning officials came to their home and took her to the hospital to have an abortion and sterilization. Lin had a letter and translation of a radiology examination report, indicating that Yong Chen, his wife, had both fallopian tubes sterilized. He also submitted a letter from his wife in which she said that she became pregnant the second time in September 2004 and that she was taken on December 5 to a hospital to have a forced abortion and sterilization. She claimed that she received the abortion and sterilization certificates from the officials of the neighborhood family planning office later that month. Finally, Lin provided translated certificates indicating that an abortion and sterilization were performed on Yong Chen on December 5, 2004. DHS submitted the findings of a forensic document examiner who determined that “[i]t is unlikely that [the abortion and sterilization certificates] are genuine.” Several reasons were given to support this determination. Lin responded with a letter from his then-attorney Li Nan Chiang.

On April 16, 2008, the IJ issued an oral decision. Based on Lin's concession of removability and admission of allegations in the Notice to Appear, the IJ found him removable as charged. She then considered his application for asylum and withholding of removal. The IJ took into account Lin's “limited education and alleged functional illiteracy” and his demeanor while testifying and found him not credible. She noted that he “was unable to provide the most basic of information that forms the very foundation of his claim” and determined that “[t]he inconsistencies in his testimony are so significant ․ that they warrant this finding of incredibility.”

The IJ gave several reasons for her adverse credibility determination. First, Lin was unable to provide a plausible explanation as to how the members of the neighborhood committee immediately determined that his wife was pregnant. The IJ also relied on the “substantial inconsistencies” in the dates for the abortion that Lin provided, noting he had given three different dates. The IJ said that she did not find “anything in [Lin's] behavior, demeanor, background, et cetera to say that he cannot remember simple facts.” Even more important to the IJ, though, was that Lin's written statements indicated his wife had not only a forced abortion but also an involuntary sterilization; however, Lin never mentioned the latter procedure while testifying, even when asked if anything other than the abortion was done to her. Lin even testified that he and his wife were physically able to have another child. The IJ was also troubled by the FDL report that found the abortion and sterilization certificates suspect, but she did not give great weight to that report or counsel's reply thereto. She found that the certificates did not deserve full evidentiary weight in part because Lin failed to provide very detailed testimony, and none about the sterilization. In addition, the IJ noted Lin's testimony that he had “physical contact” with the family planning officials, which she viewed with skepticism because his written materials made no mention of it. Having found Lin not credible, the IJ denied his application for asylum and withholding of removal and ordered him removed to China.

Lin appealed to the Board. He asserted that the IJ “gave undue weight to the adverse FDL findings.” He also claimed that given his second-grade education and “brain injuries” from working at a state-owned enterprise in China, the IJ should have inquired into and given weight “to such injuries as persecution.” In an attached affidavit, Lin added that he had worked in a factory where he was exposed to mercury sprayed on thermos bottles and that both his parents died from cancer after having worked at the factory “all their lives.”

On January 25, 2010, the Board summarily affirmed the IJ's decision. The Board noted that in a July 28, 2009, decision it had suspended Lin's former counsel Li Nan Chang from practicing before the Board, the immigration courts, and the DHS. Because Lin had retained new counsel who filed the appeal and appellate brief, the Board proceeded to decide the appeal. Lin petitioned for review with this court.

II. ANALYSIS

Lin raises several arguments on appeal. He first argues that the IJ erred in placing insufficient weight on the certificates of his wife's abortion and sterilization procedures based on perceived deficiencies and lack of detail in his testimony. He claims that his documentation “should have served the REAL ID purpose of corroborating otherwise incredible testimony.” He argues that the IJ erred in failing to probe into his background and alleged exposure to harmful chemicals and that the Board erred in not addressing this alleged explanation for the inconsistencies in his testimony. He also asserts that the IJ and Board erred in failing to recognize the ineffective assistance of his counsel. Finally, he claims that the IJ erred in failing to determine whether he was competent to testify.

Where, as here, the Board summarily affirms, we review the IJ's decision. Juarez v. Holder, 599 F.3d 560, 564 (7th Cir.2010). Our review is deferential and we “ask only whether [the decision] is supported by ‘reasonable, substantial, and probative evidence on the record considered as a whole.’ “ Lin v. Holder, 620 F.3d 807, 810 (7th Cir.2010) (quoting Toptchev v. I.N.S., 295 F.3d 714, 720 (7th Cir.2002)). We “will reverse only if the evidence compels a contrary conclusion.” Surganova v. Holder, 612 F.3d 901, 904 (7th Cir.2010).

In order to establish eligibility for asylum and withholding of removal, Lin bears the burden of proving that he is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(B)(i); Lin, 620 F.3d at 810. Thus, he had to show past persecution or a well-founded fear of persecution on account of his race, religion, nationality, membership in a protected social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). He alleges persecution based on China's coercive family planning polices and alleged practices committed against his wife, on account of his political opinion. Lin may prove that he is a refugee based on his own testimony alone if the IJ finds it is credible. 8 U.S.C. § 1158(b)(1)(B)(ii). However, as the IJ recognized, “[g]iven the importance of the applicant's credibility in asylum proceedings, ‘an adverse credibility finding will doom the applicant's claimed eligibility as a ‘refugee.’ “ Hassan v. Holder, 571 F.3d 631, 637 (7th Cir.2009) (quoting Musollari v. Mukasey, 545 F.3d 505, 508-09 (7th Cir.2008)).

Before we evaluate the adverse credibility determination, we need to address some of the government's arguments. The government first argues that we may not consider Lin's unexhausted claims that: (1) his counsel was ineffective; (2) the IJ should not have proceeded with the hearing because of counsel's ineffective assistance; (3) the IJ should have determined Lin's competency to testify; (4) the IJ erred in its findings regarding Lin's belated claim of physical contact; (5) the FDL report's suspicions of the sterilization certificate were baseless; and (6) the weight given to the abortion and sterilization certificates contradicted the purpose of the REAL ID Act-allegedly to corroborate otherwise incredible testimony. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right.”); Muratoski v. Holder, 622 F.3d 824, 830-31 (7th Cir.2010) (denying petition for review where alien failed to exhaust administrative remedies). “ ‘The duty to exhaust includes the obligation to first present to the [Board] any argument against the removal order as to which the Board is empowered to grant the alien meaningful relief.’ “ Muratoski, 622 F.3d at 830 (quoting Ghaffar v. Mukasey, 551 F.3d 651, 654 (7th Cir.2008)). Lin's failure to exhaust the claims identified above prevents us from reviewing them.2

The government contends that the exhaustion requirement is jurisdictional. We have said that it is not. See, e.g., Issaq v. Holder, 617 F.3d 962, 968 (7th Cir.2010) (failure to exhaust “is not ․ a jurisdictional rule in the strict sense ․ [but] a case-processing rule that limits the arguments available to an alien in this court”).

The government next argues that Lin has waived several challenges to the IJ's decision, including most of the reasons for the adverse credibility finding as well as his claim that the weight given to the alleged abortion and sterilization certificates contradicts the purpose of the REAL ID Act. The “statement of facts and procedural history” section of Lin's opening brief mentions the following reasons supporting the IJ's credibility determination: (1) Lin was unable to provide a plausible explanation as to how the neighborhood committee members determined that his wife was pregnant; (2) Lin's written statements indicated his wife was forced to undergo sterilization, but Lin never mentioned it when testifying; and (3) Lin first claimed that he had “physical contact” with the family planning officials when testifying. But the brief only mentions these in passing. Merely mentioning that the IJ made these findings without advancing any argument supported by citations to relevant authority is insufficient to challenge those findings on appeal. See, e.g., Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir.2008) (“Federal Rule of Appellate Procedure 28 requires an argument consisting of more than a generalized assertion of error, with citations to supporting authority.”) (quotations and citations omitted); Asere v. Gonzales, 439 F.3d 378, 381 (7th Cir.2006). Lin has not made any cogent argument to challenge these reasons for the adverse credibility finding. Thus, he has waived any challenge to them. But even if he had not waived these challenges, we would not disturb the IJ's credibility finding for the reasons we discuss later.

Lin has waived other arguments too. He claims that the abortion and sterilization certificates he submitted “should have served the REAL ID Act's purpose of corroborating otherwise incredible testimony” and that the IJ's decision to give them less weight because of the inconsistencies in his testimony contravenes the purpose of the Act. But he offers no authority to support these arguments. The failure to adequately develop and support these arguments results in waiver. See Jin v. Holder, 572 F.3d 392, 397 (7th Cir.2009); Asere, 439 F.3d at 381 (citing Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 529 (7th Cir.2003) (“It is not enough for [plaintiff] merely to refer generally to these actions in her statement of facts; ․ she must identify the legal issue, raise it in the argument section of her brief, and support her argument with pertinent authority.”). In any event, “under the REAL ID Act, corroborating evidence may be required even if the applicant is credible.” Rapheal v. Mukasey, 533 F.3d 521, 527 (7th Cir.2008) (citing 8 U.S.C. § 1158(b)(1)(B)(ii)).

Turning to the IJ's adverse credibility determination, Lin's only argument is that the IJ placed insufficient weight on the abortion and sterilization certificates. Yet the IJ was entitled to give them whatever weight she thought they deserved in light of all the evidence. See Weng v. Holder, 593 F.3d 66, 72 & n. 5 (1st Cir.2010) (concluding that documentary evidence did not compel a finding of persecution “especially in the absence of credible testimony on [the alien's] part”); Feto v. Gonzales, 433 F.3d 907, 911 (7th Cir.2006) (stating that the IJ was entitled to weigh documentary evidence along with other evidence in the case). The IJ reasoned that the certificates were “not entitled to full evidentiary weight” because Lin “did not provide very detailed testimony,” particularly with respect to his wife's sterilization. A lack of detail is a “major clue” that someone is lying. Mitondo v. Mukasey, 523 F.3d 784, 788-89 (7th Cir.2008). Indeed, Lin did not provide much detail about his wife's abortion, sterilization, or the events surrounding these procedures. Even if the certificates should have been given more weight, they contain nothing to suggest that these procedures were forced upon Lin's wife. We find no reason to disturb the IJ's weighing of the certificates.

And in the end, even Lin acknowledges the discrepancies and inconsistencies in his testimony and supporting documents. Indeed, he notes the existence of a “remarkable number of inconsistencies” in his testimony. Yet he offers no argument why such unexplained discrepancies could not support the IJ's adverse credibility determination. Any such argument is therefore waived. Jin, 572 F.3d at 397 & n. 3. (He attempts to offer an explanation, but that effort fails, as we address later.) Besides, an IJ may properly base a credibility determination on “the consistency between the applicant's ․ written and oral statements ․ [and] the internal consistency of each such statement․” 8 U.S.C. § 1158(b)(1)(B)(iii); see, e.g., Hassan, 571 F.3d at 637 (“[T]he IJ may rely on inconsistencies between the applicant's hearing testimony and earlier statements.”). Further, the addition of factual assertions in an applicant's testimony that were not included in the written asylum application can support an adverse credibility finding. Hassan, 571 F.3d at 638-39 (deferring to adverse credibility determination where alien testified about four events of persecution but omitted them from his written application); Xiao v. Mukasey, 547 F.3d 712, 717 (7th Cir.2008) (upholding adverse credibility finding where alien failed to disclose the abortion during her airport interview and credible fear interview); Song Wang v. Keisler, 505 F.3d 615, 621 (7th Cir.2007) (upholding adverse credibility determination where alien based his asylum application on his wife's sterilization and omitted mention of a forced abortion and of a fight that occurred at the hospital before his wife had an abortion).

Lin not only gave inconsistent dates for his wife's abortion but also omitted any mention of her sterilization during his testimony. The IJ reasonably could have expected that Lin would testify about events that go to the heart of his claim. See Song Wang, 505 F.3d at 621. He even contradicted his claim by testifying that she was physically capable of having children. In addition, Lin's claim of physical contact with the family planning officials first surfaced during his testimony. Further, Lin was unable to provide significant details about the abortion, sterilization, and the physical contact at the neighborhood committee office. He failed to offer an adequate and consistent explanation as to how the family planning officials knew his wife was pregnant, and he had no explanation for the brief stop at the neighborhood office. These were just some of the inconsistencies; there were more. Lin bore the burden of explaining to the IJ's satisfaction the inconsistencies in his testimony and documents-some of which go to the heart of his claim. See Fedosseeva v. Gonzales, 492 F.3d 840, 846 (7th Cir.2007). He did not do so. Even Lin acknowledges that “a single inconsistency going to the heart of an asylum claim may be grounds for an adverse credibility determination.” (Br. 16 citing Huang v. Gonzales, 453 F.3d 942, 945-46 (7th Cir.2006)). Lin has given us no reason to disturb the IJ's adverse credibility finding.

Lin argues that he did not have an opportunity for a full and fair hearing. He submits that the IJ should have probed into his background and exposure to harmful chemicals, which he claims “wreaked havoc on [his] cognitive abilities.” He complains that the Board did not address this explanation for his inconsistent testimony. He also claims that the IJ should not have proceeded with the hearing given counsel's alleged obvious ineffectiveness.

Due process requires that an alien be afforded a meaningful opportunity to present a claim, Barradas v. Holder, 582 F.3d 754, 767 (7th Cir.2009); Capric v. Ashcroft, 355 F.3d 1075, 1088-89 (7th Cir.2004) (emphasizing it is the opportunity to present a claim that is protected), but “imposes no obligation to ensure that the alien actually makes a meaningful presentation,” Capric, 355 F.3d 1089. We examine “whether, given the totality of the circumstances, [the alien] had a full and fair opportunity to put on his case.” Barradas, 582 F.3d at 767. Lin had such an opportunity. The record does not suggest that the IJ interfered with Lin's ability to present his claim. Lin could have testified about his claimed exposure to harmful chemicals, but he omitted any mention of this in his testimony and asylum application. Because he never brought this matter to the IJ's attention, the IJ had no reason to suspect that an alleged chemical exposure caused Lin's inability to remember simple details. There certainly is no basis for concluding that Lin's testimony that he worked ten years in a factory manufacturing thermos bottles should have been a clue to the IJ that he was exposed to harmful chemicals or that those chemicals caused a brain injury which affected his ability to testify truthfully or accurately. And absent notice of Lin's alleged exposure to harmful chemicals, there was no reason for the IJ to inquire further into the matter.

Lin also had the opportunity to explain the inconsistencies in his testimony to the Board. But the Board is not permitted to engage in fact-finding on appeal. See Figueras v. Holder, 574 F.3d 434, 437 (7th Cir.2009); 8 C.F.R. § 1003.1(d)(3)(iv). Lin did not move to remand to the IJ or reopen the proceedings for consideration of evidence of his background and exposure to harmful chemicals. Thus, the Board did not err in declining to address Lin's proffered explanation for the inconsistencies in his testimony.

Regarding whether the IJ should have proceeded with the hearing given the “obvious” ineffective assistance of Lin's counsel, Lin did not exhaust this claim. That barrier aside, Lin still could not prevail. He argues that his case is like Gjeci v. Gonzales, 451 F.3d 416, 424 (7th Cir.2006), where we concluded that by proceeding with the merits hearing, the IJ deprived the alien of a fundamentally fair hearing. But that case is distinguishable: Gjeci's counsel withdrew; the IJ refused to grant a continuance to allow Gjeci to obtain new counsel; Gjeci's counsel retained documents central to Gjeci's claim; and Gjeci did not fully comprehend the consequences of his counsel's withdrawal. Id. at 421-24. Furthermore, the record demonstrated prejudice-the IJ placed great weight on the evidence that the documents had been falsified and said he would have been inclined to grant Gjeci's petition if the documents were authentic. Id. at 420, 423. Here, Lin was represented by counsel during the proceedings; the IJ granted him a continuance to allow a response to the FDL findings and his counsel submitted a response; and the IJ did not place great weight on the findings.

Lin further claims that it was highly unlikely that his counsel was capable of providing anything other than incompetent representation at the time of the IJ's hearing. He first contends that the lack of compliance with the re-fingerprinting order was his counsel's fault. The IJ noted that she did not serve written instructions about the re-fingerprinting. Anyway, she did not deem Lin's claim abandoned, but allowed Lin and his counsel to proceed. Thus, the belated fingerprinting did not prejudice Lin.

Second, Lin argues that counsel could not produce any explanation for the “gross ․ discrepancies” in his testimony, presumably a reference to counsel's failure to raise the alleged brain injury claim. But Lin wholly fails to substantiate his claim that the alleged exposure to mercury could have caused the gross discrepancies in his testimony. He does not, for example, offer any expert evidence that exposure to mercury such as Lin had-whatever that may have been; we don't know because he has offered no evidence of it-could cause someone to forget simple details. So even now Lin has not substantiated his claim that his work at the thermal bottling plant and claimed exposure to mercury “explains” the substantial inconsistencies in his testimony. Thus, it is far from clear that counsel's failure to produce evidence of this alleged explanation for the gross testimonial discrepancies would amount to ineffective assistance.

Another area of ineffectiveness, Lin alleges, was counsel's waiver of closing argument. But Lin has not shown any prejudice resulted from the lack of argument. In addition, Lin argues that the timing of events leading to the disciplinary action against Chiang substantiates his claim of ineffective assistance. According to Lin, “[t]he ARDC [the Illinois Attorney Registration and Disciplinary Commission] found him incompetent in handling cases before April of 2008,” which was when the IJ held the hearing in this case. Yet Lin has offered no evidence to substantiate this claim. We do know that on July 28, 2009, the Board suspended Chiang from practicing before the Board, the immigration courts, and DHS pursuant to 8 C.F.R. § 1003.103(a). But representation by counsel whose license has been suspended does not automatically render that assistance per se ineffective. See United States v. Williams, 934 F.2d 847, 851-52 (7th Cir.1991). The fact that Chiang may have been ineffective in other matters does not direct the conclusion that he was ineffective here. Instead, Lin would have to show that an error or omission by Chiang prejudiced his case. He has not done so. Moreover, the IJ cited a host of reasons for finding Lin not credible. The record shows that Lin had a full and fair opportunity to present his claim.

Finally, Lin argues that the IJ should have determined whether he was competent to testify. He asserts that his very limited education and alleged brain injuries affected his cognitive abilities and competence to testify, not his credibility. The failure to exhaust aside, Lin could not prevail on this argument. When an alien raises the issue of his competency with the IJ, the IJ generally is not expected to sua sponte initiate a competency evaluation. See, e.g., Munoz-Monsalve v. Mukasey, 551 F.3d 1, 6 (1st Cir.2008). Lin was represented by counsel at the hearing before the IJ; counsel could have raised the issue of Lin's competency, but did not. Furthermore, although Lin gave inconsistent answers and was unable to recall details of key events, there is nothing to suggest that this was due to a lack of competency rather than, as the IJ found, a lack of credibility.

III. CONCLUSION

For the foregoing reasons, the petition for review is Denied.

Chinese Asylum: Is it appropriate to treat suing a unit of government as a legitimate means of expressing one's political opinion? 7th Circuit 2010

Xiu Chen v. Eric Holder, Jr. (Easterbrook)
Full Text

A Chinese citizen's petition for review of BIA's denial of her application for asylum is granted and remanded as the Board has never addressed the question of whether it is appropriate to treat suing a unit of government as a legitimate means of expressing one's political opinion. Furthermore, the Board needs to consider the possibility that, if China has classified petitioner as a public protester, then perhaps an imputed political opinion is "at least one central reason" for the attempted arrest for filing suit against the local government for confiscating her father's land without just compensation.

Xiu Qin Chen, a citizen of China, seeks asylum in the United States. She contends that China persecuted her because of her political opinions and will imprison her because of those opinions should she be returned. Her political opinion, as she expresses it in this court, is that China should pay just compensation when it takes private property for public use. That capitalist principle, enshrined in the fifth amendment to the Constitution of the United States, is less honored in communist nations.

Chen contends that her home town of Langqi razed about a dozen homes in order to construct a military building. (We recount her story, which the Board of Immigration Appeals accepted provisionally.) Officials promised to provide similarly sized plots of land and to pay for construction of new houses within three months, and to provide rent for transitional housing. The rent was paid, but when four months passed without the transfer of new land or the money to build new homes, Chen filed suit against the local government. The court dismissed that suit, and officials appeared at her family’s rented home with a warrant for her arrest. She fled. Police have tried to find her ever since, and when her father refused to reveal her whereabouts he was beaten and his leg broken. But the Board of Immigration Appeals concluded that Chen’s lawsuit did not advance a political position, so the government’s reaction, though excessive, was not on account of “political opinion” within the meaning of 8 U.S.C. §1158(b)(1)(B)(i).

One circuit has held that litigation is a form of political expression that can make a person eligible for asylum. Baghdasaryan v. Holder, 592 F.3d 1018, 1020–21, 1024 (9th Cir. 2010); Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1044–45 (9th Cir. 2008). Another has implied this, see Yueqing Zhang v. Gonzales, 426 F.3d 540, 547–48 (2d Cir. 2005), though that decision did not arise from litigation. Chen urges us to follow these decisions and rule in her favor on the political-opinion question, remanding to allow the agency to address the rest of the statutory issues. Things are not quite that simple, however.

First, the ninth circuit approached the subject as if the judiciary made an independent decision. It does not. The Attorney General, and his delegate the Board of Immigration Appeals, are principally responsible for interpreting ambiguous terms in the immigration laws, and the judiciary must respect administrative decisions that plausibly implement this legislation. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), applied to immigration law by INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999). See also Negusie v. Holder, 129 S. Ct. 1159, 1163–64 (2009). The alien must establish that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant”. 8 U.S.C. §1158(b)(1)(B)(i). These are not self-defining terms, so administrative officials have considerable leeway.

Second, it is necessary to distinguish having a political opinion from the means of its expression. The United States does not allow punishment for anyone’s political views—but rules for the time, place, and manner of expression are independent of the speaker’s politics. Thus it may be permissible to punish a person for waking up the neighbors with a bullhorn, even though the viewpoint of the amplified statements cannot be penalized. See Ward v. Rock Against Racism, 491 U.S. 781 (1989). And a public demonstration that blocks access to a person’s home, and spoils the quiet that people need in their daily lives, may be curtailed. See Frisby v. Schultz, 487 U.S. 474 (1988). The second and ninth circuits appear to have assumed that the time, place, and manner rules used in the United States apply equally to foreign nations, and that any departure from them penalizes political opinion. That is far from clear to us. The foundation for the time, place, and manner rules is that they do not concern the viewpoint or content of the speech. In California, shopping malls are open to political demonstrations, see PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). But if a foreign nation bans political speech at shopping malls and arrests picketers as trespassers, that is not necessarily punishment for “political opinion”; it may be no more than insistence that political opinion be expressed in a different place. Thus if a foreign state decides that litigation is not an appropriate forum for political opinion, it would be hard to characterize that as persecution.

Third, the United States has itself limited the expression of political opinion in the courts. True enough, litigation is protected by the first amendment as one of the ways by which the people may petition for redress of grievances. See Lewis v. Casey, 518 U.S. 343 (1996); NAACP v. Button, 371 U.S. 415 (1963). Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510–11 (1972). But this does not imply that litigation is just politics by other means. See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). A court is the forum in which legal rights are vindicated, and people who use litigation solely as a pulpit for political protest may be penalized if the suit is objectively baseless. BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002).

Asylum, China's one-child policy and membership in social group-7th Cir. 2010 Chen v. Holder, No. 08-2836

A Chinese national and citizen's petition for review of the BIA's affirmance of Immigration Judge's denial of his application for asylum and related relief, claiming that he has been or will be persecuted because of his family's resistance to China's one-child policy and his membership in social groups that include his family and the hei haizi (i.e., someone born in violation of China's one-child policy), is granted and the matter remanded where: 1) the agency's analysis of petitioner's asylum claim was incomplete as the BIA failed to address his claim of past persecution based on imputed political opinion as, although his 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; and 2) the BIA failed to consider the cumulative significance of the hardships visited upon petitioner and his family, and the future hardships he would face if returned, when evaluating his fear of future persecution.

SYKES, Circuit Judge. Shi Chen is a native of China who as the fifth child in his family was born in severe violation of China's one-child policy. As a penalty for his unlawful birth, his mother was forcibly sterilized, and his parents were required to pay a large fine that equaled the family's annual income. Chen's aunt had earlier been forced to abort an illegal pregnancy and she, too, was thereafter involuntarily sterilized.

Children born illegally in China--known as the hei haizi--may not be listed on their family registry, the hukou, and are therefore denied many of the rights of full citizenship. Among these are the right to state-provided elementary schooling, higher education, and health care; the right to be included in the family's land and food allocation; and the right to move freely about the country. The hei haizi are also excluded from many jobs, may not acquire property, and in some cases are denied the right to marry and have children. Chen's parents paid large fines in order to list Chen on the back of their hukou; though this did not legalize him, it did allow him to attend school as long as his parents continued to pay the ongoing fines. Their ability to do so ran out before he reached high school.

When he was 17 years old, Chen left China for the United States and upon arrival was immediately detained by immigration officials. He applied for asylum, withholding of removal, and protection under the Convention Against Torture, arguing that he has been or will be persecuted because of his family's resistance to China's one-child policy and his membership in social groups that include his family and the hei haizi. See 8 U.S.C. § 1101(a)(42)(B) (persecution on account of political opinion includes persecution for resistance to a coercive population-control program). An Immigration Judge ("IJ") denied relief, and the Board of Immigration Appeals ("BIA") affirmed. Chen petitioned this court for review.

We grant the petition and remand to the immigration agency for further proceedings. The agency's analysis of Chen's asylum claim was incomplete. The BIA failed to address Chen'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. His mother's forcible sterilization does not automatically entitle Chen to a finding of past persecution, but 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 Chen and his family--and the future hardships he would face if returned--when evaluating Chen's fear of future persecution.

I. Background

Chinese law significantly restricts the freedom of its citizens to bear children. No family is permitted to have more than two children, and Chinese law limits most families to one child. BUREAU OF DEMOCRACY, HUMAN RIGHTS &LABOR, U.S. DEPARTMENT OF STATE, CHINA: PROFILE OF ASYLUM CLAIMS AND COUNTRY CONDITIONS 21 (Oct. 2005) ("2005 COUNTRY REPORT"). Married couples are required  to use birth control and must obtain official permission--in the form of a "birth permit"--before having a second child; some provinces require a birth permit for a first child as well. Id. at 22. Violations carry heavy fines--"social maintenance and compensation" fees--as well as other consequences for the parents, including job loss or demotion, imprisonment in a "population school," and forcible abortion or sterilization. Id. at 22-23.

Lawfully born Chinese children are listed on the family hukou, a registration document that entitles family members to the rights of full citizenship. Children born unlawfully are known as the hei haizi (meaning "black children") and are ineligible for registration on the hukou. IMMIGRATION & NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE, PERSPECTIVE SERIES: CHINESE STATE BIRTH PLANNING IN THE 1990S AND BEYOND 38 (Sept. 2001). These "unplanned persons" are denied the right to state-provided elementary schooling, higher education, health care, and other governmental services and benefits. Id. As adults they are excluded from many jobs, may not purchase property, and may be denied the right to marry and have children. Id.; see also 2005 COUNTRY REPORT, at 23 (describing China's unregistered "floating" population).

Shi Chen was born in violation of China's one-child policy. He is a native of a small village in the Fujian province and is the youngest of five children and the only boy. Chen's parents spent many years evading the population-control authorities in their village, and his family paid dearly for his birth. Soon after Chen was born, his mother--who lived in hiding while pregnant to avoid a forced abortion--was involuntarily sterilized. His mother's sister had earlier been forced to abort an illegal pregnancy in her ninth month; afterward she was involuntarily sterilized. Chen's parents were required to pay a large fine equivalent to the family's annual income as a penalty for his unlawful birth. They had to give away one of his sisters shortly after she was born because they could not afford to keep her. During an earlier pregnancy, Chen's mother fell off a ladder while fleeing from population-control authorities; she broke both her ankles, and the baby was stillborn.

Because Chen was born illegally, he could not be registered on the hukou and his family was denied the food and land allocation provided for lawfully born children. Payment of additional, ongoing fines allowed his family to list Chen's name on the back of their hukou. This permitted him to attend school as long as his parents continued to pay; they were able to do so through the equivalent of middle-school but not beyond. (Chen's father is a subsistence farmer and works odd jobs for extra income to support the family.) As a member of the hei haizi, Chen asserts that he is denied access to health care and other governmental services; is excluded from higher education and many types of employment; and will be denied the right to marry and have children, the right to own property, and the right to freely travel within and outside of China.

In 2004, when he was 17, Chen obtained false travel documents and fled China for the United States. Upon arrival in this country, he was detained by immigration officials and placed in removal proceedings. Chen conceded removability and applied for asylum, withholding of removal, and protection against removal under the Convention Against Torture ("CAT"). Citing his family's history of persecution for violating China's one-child policy, he claimed he would be targeted for forced sterilization and other persecution if returned to China.

The IJ who heard Chen's case credited his testimony (it was corroborated by several affidavits--most notably, one from his father) but rejected his claims for relief, concluding that Chen had not established past persecution or a well-founded fear of future persecution. In the IJ's view, the economic plight his family suffered on account of his birth was not severe enough to be considered past persecution, especially since Chen had never been detained by Chinese authorities and had been permitted to attend school. The IJ also rejected Chen's argument that he had a well-founded fear of persecution based on his status as a member of the hei haizi.

The BIA affirmed the IJ's decision but conducted its own analysis. Acknowledging that economic harm can constitute persecution in appropriate circumstances, the BIA held that the economic hardship Chen's family suffered was not significant enough to constitute persecution. The BIA also rejected Chen's argument that he had a well-founded fear of future persecution; the agency based this conclusion on the fact that Chen had found employment after his family could no longer afford the fines necessary to permit him to attend school and had also obtained a Chinese passport before leaving the country. Finally, the BIA rejected Chen's claim that he would be targeted for sterilization based on his family's resistance to China's population-control policy. The BIA noted that it had never before held that "the political opinion of a parent who has been forcibly sterilized can be imputed to that parent's child," and "current caselaw [in the Seventh Circuit] does not allow the respondent's mother's political opinion to be imputed to him." Chen petitioned this court for review.

II. Discussion

Where, as here, the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, we review the BIA's decision. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007). The agency's legal conclusions are reviewed de novo. See Mekhtiev v. Holder, 559 F.3d 725, 729 (7th Cir. 2009). We will uphold the agency's factual findings so long as they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Chatta v. Mukasey, 523 F.3d 748, 751 (7th Cir. 2008) (quotation marks omitted). Under this deferential standard of review, reversal is warranted only if "the evidence compels a different result"; we will not overturn the agency's findings simply because we might have decided the case differently. Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004). On the other hand, remand may be warranted when the agency overlooks key aspects of an asylum-seeker's claim and might reach a different conclusion after a more complete evaluation of the record. See Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007); Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999).

The Attorney General has discretion to grant an alien asylum under the Immigration and Nationality Act if the alien qualifies as a "refugee." 8 U.S.C. § 1158(b)(1). 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." Id. § 1101(a)(42)(A). A showing of past persecution will trigger a rebuttable presumption that the alien has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). 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. Id. § 208.13(b)(2). This requires the alien to show that his fear of persecution is both "subjectively genuine and objectively reasonable." Bolante v. Mukasey, 539 F.3d 790, 794 (7th Cir. 2008). 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." Sayaxing v. INS, 179 F.3d 515, 520 (7th Cir. 1999) (quotation marks omitted).

Chen's claims for relief are premised on his assertion that he has been or will be persecuted on account of political opinion and membership in a particular social group. Regarding the former ground, Chen's argument is based on § 1101(a)(42)(B), which provides that persons who have been subjected to certain coercive population-control measures or otherwise have been or will be subjected to persecution for resistance to a coercive population-control program are deemed to have been persecuted on account of their political opinion. More specifically:

For purposes of determinations under this chapter, 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.

8 U.S.C. § 1101(a)(42)(B). This subsection of the statute 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. See Lin v. Ashcroft, 385 F.3d 748, 752-53 (7th Cir. 2004).

The Attorney General has concluded that only those who have themselves been forced to have an abortion or have been involuntarily sterilized fall into the first class of refugees. Matter of J-S-, 24 I. &N. Dec. 520, 527 (AG 2008); see also 8 C.F.R. § 1208.13(b)(1) (aliens who fall into this category are automatically entitled to the presumption of a well-founded fear of future persecution). Overruling BIA precedent, Matter of J-S- 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. Matter of J-S-, 24 I.&N. Dec. at 542; accord Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir. 2009); Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 314 (2d Cir. 2007) (en banc).

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. See Matter of J-S-, 24 I. & N. Dec. at 534-35 ("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. . . . [A]pplicants must 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, or of persecution on account of another ground for asylum enumerated in the Act."). The Attorney General's interpretation of § 1101(a)(42)(B) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), and the rationale of Matter of J-S- applies with equal force to the claim of an asylum-seeker like Chen whose parent has been forced to have an abortion or undergo sterilization. See Chen v. U.S. Dep't of Justice, 417 F.3d 303, 305 (2d Cir. 2005) (per curiam) ("[C]hildren are not per se as eligible for relief . . . as those directly victimized themselves."); Zhang v. Gonzales, 408 F.3d 1239, 1245-46 (9th Cir. 2005) (same); Wang v. Gonzales, 405 F.3d 134, 142-43 (3d Cir. 2005) (same).

So Chen does not fall into the first category of refugees created by § 1101(a)(42)(B). Under the rationale of Matter of J-S-, Chen is not automatically eligible for asylum because his mother was sterilized against her will. Nor does Chen fall into the second class of refugees; 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 § 1101(a)(42)(B)--those who have a well-founded fear of involuntary sterilization (forced abortion obviously is not at issue here), or those who fear persecution for refusing sterilization or otherwise resisting a coercive population-control program. Chen 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.

Chen's claim is thus based partly on a theory of imputed political opinion. He contends that Chinese population-control authorities either have imputed or will impute his parent's resistance to China's one-child policy to him. The BIA flatly rejected this argument based on a perceived lack of circuit precedent to support it. To the contrary, however, it is well established in this 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. See Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007) ("[A]sylum is available to persons who have been persecuted based on imputed political opinion, including situations where a persecutor attributes the political opinion of one or more family members to the asylum applicant." (emphasis removed)); Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir. 2005); Lwin v. INS, 144 F.3d 505, 509-10 (7th Cir. 1998). 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. Sankoh v. Mukasey, 539 F.3d 456, 471 (7th Cir. 2008).

Chen argues that population-control authorities have attributed or will attribute his parent's flagrant violation of China's population-control program to him and that he is therefore likely to be targeted for involuntary sterilization if returned to China. The Second and Ninth Circuits have recognized that an asylum claim alleging persecution for resistance to a coercive population-control program under § 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. See Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007); Zhang, 408 F.3d at 1246-47; Jie Lin v. Ashcroft, 377 F.3d 1014, 1031 (9th Cir. 2004). This is a specific application of the more general imputed political-opinion theory--already established in this circuit--and we therefore follow the lead of these circuits in recognizing it here.

Our decision in Chen v. Gonzales, 457 F.3d 670, 674-75 (7th Cir. 2006), is not to the contrary. The alien in Chen had two children in the United States, intended to have more children in China, and feared she would be involuntarily sterilized. To support her claim, the alien submitted State Department reports and evidence that her parents had been involuntarily sterilized. We noted that this evidence did not compel the conclusion that the alien would be sterilized upon her return to China because the alien's parents had been "sterilized many years ago under circumstances bearing no relation to her present circumstances." Id. at 675.

Here, in contrast, Chen 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.

As we have noted, the BIA summarily rejected the imputed political-opinion basis of Chen's claim without analysis, having concluded that "current caselaw" in this circuit did not support it. But the concept of persecution based on imputed political opinion has long been recognized in this circuit, and Chen's claim falls comfortably within this theory of relief. Accordingly, remand is in order to give the BIA "the first opportunity to pass judgment on . . . [a] claim it previously ignored." Hamdan v. Mukasey, 528 F.3d 986, 992-93 (7th Cir. 2008). The agency 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." Jiang, 500 F.3d at 141.

There is another reason to return this case to the agency: Chen 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. This evidence, he argued, both buttressed his claim of persecution based on political opinion and established a separate ground for relief based on persecution because of his membership in a particular social group. The BIA's treatment of this claim, too, was incomplete. The agency 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); nor did the agency properly account for this evidence in evaluating the reasonableness of his fear of future persecution.

Many of the hardships Chen suffered as a hei haizi and will continue to face if returned to China are economic in nature. Because of his unlawful birth, Chen 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. Chen 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.

It is well established that persecution can take the form of economic deprivation as well as physical mistreatment, see, e.g., Yun Jian Zhang v. Gonzales, 495 F.3d 773, 777 (7th Cir. 2007); Tarraf v. Gonzales, 495 F.3d 525, 535 (7th Cir. 2007); 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,' " Xiu Ling Chen v. Gonzales, 489 F.3d 861, 863 (7th Cir. 2007) (quoting In re T-Z-, 24 I. & N. Dec. 163, 171 (BIA 2007) (emphasis removed in Xiu Ling Chen)). This does not mean, however, that the alien must establish a "total deprivation of livelihood on account of his protected status." Koval v. Gonzales, 418 F.3d 798, 805-06 (7th Cir. 2005) (internal quotation marks omitted).

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. The Third Circuit has concluded as much in a case involving a Chinese father of four who sought asylum based on the economic deprivations his family suffered because of their violation of China's one-child policy:

[W]hile Li's family did not reach near-starvation levels, we can fairly say that the economic restrictions allegedly faced by the Li family were "severe." In the aggregate, a fine of more than a year and a half's salary; blacklisting from any government employment and from most other forms of legitimate employment; the loss of health benefits, school tuition, and food rations; and the confiscation of household furniture and appliances from a relatively poor family constitute deliberate imposition of severe economic disadvantage which could threaten his family's freedom if not their lives. Moreover, the economic harm in Li's case was deliberately imposed as a form of punishment because of his violation of China's population control policy, rather than being the result of "natural" economic downturns or generally harsh conditions shared by others in China. We hold that, when viewed in the aggregate, Li's allegations amount to economic persecution.

Li v. Attorney General, 400 F.3d 157, 169 (3d Cir. 2005).

Beyond economic deprivations, Chen 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. We have often emphasized the importance of evaluating the "cumulative significance" of multiple claimed hardships in evaluating asylum claims. See Kholyavskiy v. Mukasey, 540 F.3d 555, 571 (7th Cir. 2008). Here, however, the BIA dismissed Chen's claim of persecution based on his status as a hei haizi by reference to a solitary piece of evidence--the fact that Chen was able to obtain a passport and therefore "was given the right to travel by the Chinese government." This is woefully inadequate. The BIA ignored much of Chen'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. See Joshi v. Ashcroft, 389 F.3d 732, 736-37 (7th Cir. 2004) ("A decision that resolves a critical factual question without mention of the principal evidence cannot be considered adequately reasoned.").

We do not now conclude that the record compels a conclusion that Chen 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, we GRANT the petition for review, VACATE the decision of the BIA, and REMAND for further proceedings consistent with this opinion.

Chen v. Holder (Sykes)
Oral Argument | Full Text