405 F.3d 171 (4th Cir. 2005), 03-2525, Li v. Gonzales

Docket Nº:03-2525.
Citation:405 F.3d 171
Party Name:Qiao Hua LI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
Case Date:May 02, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 171

405 F.3d 171 (4th Cir. 2005)

Qiao Hua LI, Petitioner,

v.

Alberto R. GONZALES, Attorney General, Respondent.

No. 03-2525.

United States Court of Appeals, Fourth Circuit

May 2, 2005

Argued: Feb. 2, 2005.

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[Copyrighted Material Omitted]

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ARGUED:

Ning Ye, Hemenway & Associates, Flushing, New York, for Petitioner.

Michelle Elizabeth Gorden, Senior Litigation, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

ON BRIEF:

Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant Director, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Petition denied by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge LUTTIG joined. Judge GREGORY wrote a dissenting opinion.

OPINION

WILLIAMS, Circuit Judge:

Qiao Hua Li, a citizen of the People's Republic of China, petitions for review of a final order of the Board of Immigration Appeals (BIA) denying her application for asylum and withholding of removal. Li maintains that she is entitled to refugee status because she was persecuted for her resistance to China's coercive population control program. Specifically, Li argues that she was persecuted for having an unauthorized child because she was fined 10,000 Renminbi (RMB) and she was required to have an intrauterine contraceptive device (IUD) implanted against her will. Li also alleges that she has a well-founded fear of being persecuted in the future if she returns to China. The BIA concluded that the fine and the IUD requirement did not rise to the level of persecution and that any fear Li had of future persecution was not well founded. Because the BIA's decision was not manifestly contrary to law or an abuse of discretion, we affirm.

I.

Li was born on March 12, 1980 in Fuzhou, Fujian Province, China. In January 1997, Li married Jing Cai Yang, in a traditional marriage ceremony despite the denial of their application for a marriage certificate

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because Li was underage. 1 Four months later, Li became pregnant even though she and Yang lacked a marriage certificate. Fearing that the Chinese government would force her to abort the unauthorized pregnancy, Li and her husband fled into the mountains, and her child was born on January 12, 1998. Li and her husband returned home eight months after the child was born. Upon returning, they were fined 10,000 RMB for the unauthorized birth. They did not pay the fine and were "harassed" by family-planning authorities. In her brief, Li contends that this fine was more money than she and her husband earned in a year.

In addition, after Li returned home, Chinese officials "forced [her] to submit to an IUD insertion against [her] will." (J.A. at 1, 10; Supp. J.A. at 24.) Li initially experienced "abnormal menstruation" from the IUD, but the effects lessened over time and now Li can "tolerate it." (J.A. at 10; Supp. J.A. at 24.) She was checked every few months by Chinese doctors to ensure that the IUD was still in place and that she was not pregnant. Li testified that the family-planning officials came to her home in China to collect the fine every year and that her husband did not live at home in order to avoid being harassed by the officials. Li's son lives with her parents. Li testified that she repeatedly asked to remove the IUD while in China, but the Chinese officials refused those requests. Although Li has been in the United States since 2001, she has not had the IUD removed. She testified that she "dare not have it removed" because she fears the repercussions if she is returned to China and it has been removed. (Supp. J.A. at 66.)

Li incurred a debt to smugglers of more than $60,000 for help to flee China through Hong Kong and Japan. She arrived in the United States, at the Los Angeles International Airport, on July 31, 2001, and was detained by officials because she failed to present proper travel documents. Because Li told the officials that she feared returning to her native China, she was referred to an asylum officer for an interview. See 8 U.S.C.A. § 1225(b)(1)(A) (West). Following this interview, the asylum officer determined that Li had a "credible fear of persecution" and that further proceedings were necessary. See 8 U.S.C.A. § 1225(b)(1)(B)(ii).

The Government charged Li with removability and began removal procedures against her. Li conceded removability, but requested asylum and withholding of removal. Li's proceedings initially commenced in California, but were transferred to New York, where Li moved upon arrival in the United States. In November, 2001, a status hearing was conducted in New York. During that hearing, Li's immigration case was transferred again, to Virginia, where Li apparently now resides.

On November 20, 2002, the immigration judge (IJ) conducted the merits hearing in Li's case. Li was not accompanied by counsel to the courtroom. When the IJ asked Li where counsel was, Li responded that she was "not expecting him," and that he was not coming "[b]ecause the fee [wa]s too high" and she "couldn't afford it." 2 (Supp. J.A. at 53.) After the IJ conferred with counsel by telephone to confirm that he was no longer representing Li, the hearing continued.

The IJ concluded that Li had not been persecuted and did not have a well-founded

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fear of persecution because neither the fine nor the IUD insertion were severe enough to amount to persecution. 3 The IJ also noted that Li had not had the IUD removed while she was in the United States, and that her husband and child were still living in China. The IJ ordered that Li be removed to China. 4

Li filed a notice of appeal with the BIA. On November 25, 2003, the BIA adopted the IJ's ruling and denied Li's asylum claim. The BIA found that "[Li] ha[d] not been persecuted in the past by being forcibly sterilized or forced to have an abortion. Rather, [Li] was required to use an intrauterine birth control device, which she continues to use in the United States of her own volition, and to pay a fine." (J.A. at 1.) The BIA concluded that Li had failed to "establish that either [the IUD or the fine] constitute[d] harm rising to the level of persecution." (J.A. at 1.) The BIA also noted that "the father of [Li's] child, with whom she entered into a traditional marriage, remains in China unharmed despite the non-payment of the fine." (J.A. at 1.) Thus, concluded the BIA, Li "failed to establish an objectively reasonable fear that, if ... returned to China, she [would] suffer greater harm, rising to the level of persecution." (J.A. at 1.) Li then filed the instant petition for review, which we have jurisdiction to entertain under 8 U.S.C.A. § 1252(a) (West 1999).

II.

On petition for review, the BIA's determination that an alien is not eligible for asylum must be upheld unless that determination is "manifestly contrary to the law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D) (West 1999). "[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (West 1999). Thus, we may reverse the denial of Li's asylum application only if the evidence "was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution." Rusu v. INS, 296 F.3d 316, 325 n. 14 (4th Cir. 2002) (internal quotation marks omitted); see also Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 284 (4th Cir. 2004).

Under the Immigration and Nationality Act, the Attorney General may confer asylum

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to anyone who is a "refugee." Prior to 1997, circuit courts and the BIA had uniformly held that victims of China's "one child" policy had not been persecuted on a protected basis, and had denied asylum requests based on this ground. See, e.g., Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995). To change this result, Congress, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), created 8 U.S.C.A. § 1101(a)(42)(B). That section provides, in relevant part:

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.A. § 1101(a)(42)(B)(West 1999).

In Chen v. INS, 195 F.3d 198 (4th Cir. 1999), we interpreted this section as follows:

In amending the Immigration and Nationality Act, Congress included three additional classes of individuals in the definition of "refugee": 1) persons who had been forced to undergo an involuntary sterilization or abortion; 2) persons who had been persecuted for refusing to undergo such a procedure or for other resistance to a coercive population control program; and 3) persons who have a well-founded fear of being subjected to [a forced abortion or sterilization, or persecuted for resistance to] a coercive population control program. See 8 U.S.C.A. § 1101(a)(42). By including applicants with a "well founded fear" of persecution as a distinct category, Congress directed that an individual in fear of a population control program would be able to qualify for refugee status even in the absence of a...

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