195 F.3d 198 (4th Cir. 1999), 98-2005, Chen v. United States Immigration & Naturalization Serv.

Docket Nº:98-2005 (A72-379-186).
Citation:195 F.3d 198
Party Name:YONG HAO CHEN, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:October 20, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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195 F.3d 198 (4th Cir. 1999)

YONG HAO CHEN, Petitioner,

v.

U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 98-2005 (A72-379-186).

United States Court of Appeals, Fourth Circuit

October 20, 1999

Argued: September 24, 1999.

On Petition for Review of an Order of the Board of Immigration Appeals.

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COUNSEL ARGUED: Lawrence H. Rudnick, STEEL, RUDNICK & RUBEN, Philadelphia, Pennsylvania, for Petitioner. Norah Ascoli Schwarz, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Beverly Yeskolski, HYDER, LOWE & GALSTON, Norfolk, Virginia, for Petitioner. Frank W. Hunger, Assistant Attorney General, Francesco Isgro, Senior Litigation Counsel, Office of Immigration Litigation,

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Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before WIDENER and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Widener and Senior Judge Butzner joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Yong Hao Chen, a citizen of the People's Republic of China (China), petitions for review of a final order of the Board of Immigration Appeals denying his application for asylum and withholding of deportation. Chen maintains that he is entitled to refugee status because he has a well-founded fear, based on China's"one child" population control program, of being subjected to an involuntary sterilization procedure, or of being persecuted for a refusal to undergo such a procedure. The Board held that Chen's fears are not wellfounded. Because substantial evidence supports the Board's decision, we affirm.

I.

Yong Hao Chen came to the United States on a student visa in September 1990 to study at Old Dominion University. After Chen was seriously injured in a work-related accident, Chen's wife, Wei Kai Li, joined him in Virginia in 1991. Chen's student visa expired in 1994. On July 2, 1996, the Immigration and Naturalization Service (INS) issued orders requiring Chen and Wei Kai Li to show cause for their failure to comply with the terms under which they were admitted to the country. Deportation proceedings before an immigration judge followed, at which both Chen and Wei Kai Li testified.

According to their testimony, Chen and Wei Kai Li have two children, and Chen also has an older child from his first marriage. Chen and Wei Kai Li's first child, who now lives with Wei Kai Li's mother in China, was born in Shanghai in May 1990. The couple maintained that they faced severe pressure, both at work and in study groups, to abort this pregnancy because the child would be Chen's second. They secured a permit to have the child only after making payments (characterized by them variously as "fines," "gifts," and "bribes") to government family planning officials. They were also forced to sign agreements with both of their employers and with the local family planning office promising that they would not have any more children and that they would undergo sterilization. The couple was unable to produce copies of these agreements but did assert that in each case the agreements were kept on file by the person exacting the promise. Wei Kai Li testified that, after giving birth, she was able to avoid immediate sterilization because the difficulty of the birth precluded attempting the procedure, and because the "doctor kn[e]w" her. The couple did not explain how they were able to avoid sterilization during the remainder of their time in China.

Chen and Wei Kai Li's second child (Chen's third) was born in the United States in July 1993. The couple testified that there would be severe repercussions for them if they returned to China with another child. They speculated that they would be forced to undergo sterilization, imprisoned, professionally restricted, and severely fined. They also expressed generalized fears about what their American-born son's status would be if they were forced to return, claiming that his access to educational opportunities and housing would be limited. The couple pointed to the fact that they had already sent money back to China to pay fines associated with their older child, although Chen's testimony suggested that these were merely fees for the cost of the child's housing and education. Chen also submitted a 1995

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report by Human Rights in China, which describes severe repercussions for some families in violation of China's "one child" policy, including beatings and forced surgeries.

The INS, in arguing that Chen has no objective basis for his fears of persecution, submitted a 1995 State Department report on conditions in China. The report indicates that although forced abortions and sterilizations still occur, these practices have been on the decline since the mid-1980's, and they are increasingly limited to rural areas. Instead, according to the report, the "one...

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