Xie v. I.N.S.

• Decision Date: 05 January 2006
• Docket Number: Docket No. 03-4196.
• Citation: 434 F.3d 136
• Parties: Zhang Jian XIE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

434 F.3d 136

Zhang Jian XIE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 03-4196.

United States Court of Appeals, Second Circuit.

Argued: May 11, 2005.

Decided: January 5, 2006.

Donald L. Schlemmer, Washington D.C., for Petitioner.

Michael C. Johnson, Assistant United States Attorney for the District of Colorado (William J. Leone, Acting United States Attorney for the District of Colorado, of counsel), Denver CO, for Respondent.

Before: WALKER, Chief Judge, SACK, and RAGGI, Circuit Judges.

SACK, Circuit Judge.

Petitioner Zhang Jian Xie, a citizen of the People's Republic of China, entered the United States unlawfully in October 1992. In October 1993, Xie applied to the Immigration and Naturalization Service of the Department of Justice for asylum and withholding of removal.

Before coming to this country, Xie had worked for more than a year as a driver for the Changle County Department of Health in Fujian Province, China. One of his occasional duties was to transport pregnant women to hospitals where forced abortions were performed on them in furtherance of China's family planning policies. On several such trips, an unarmed guard accompanied them. But on what turned out to be the last, Xie transported a woman without a guard present. In response to her plea, Xie released her. He was terminated from his employment as a result.

In his application for asylum, Xie argued that he feared persecution if he returned to China because his wife, whom he married in the United States, was expecting a child, and the couple hoped to have more children. In denying Xie's application, the Immigration Judge ("IJ") concluded that although Xie might otherwise have been eligible for asylum based on his fear of future persecution in accordance with China's family planning policies, his actions as a driver for the Department of Health constituted "assistance in persecution," rendering him ineligible for a grant of asylum and for withholding of removal. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision without opinion. Xie now petitions this Court for review.

BACKGROUND

The following facts are undisputed. Xie, a citizen of the People's Republic of China, was born in 1971 in Changle County, Fujian Province, China. He finished the Chinese equivalent of high school at the age of eighteen. A year later, he took a job as a driver for the Changle County Department of Health, where he worked from sometime in 1990 to May 1992. It appears that, save for any financial repercussions, Xie was free to leave the job at any time.¹

Although much of Xie's duties entailed the performance of such mundane tasks as driving officials to villages to inspect restaurants and stores, occasionally he transported pregnant women to hospitals in the locked back of a van, against their will, so that county officials could perform forced abortions on them pursuant to China's mandatory family planning policies. Xie testified before the IJ that he performed this function as few as three and as many as five times during his tenure at the Department of Health. On each occasion, he says, the woman he transported physically resisted and wept. And on each of those trips except the last, the woman was accompanied by an unarmed guard. On that final trip, however, when no guard was present, Xie released the woman in response to her cries. For that, he was terminated from his employment.

In October 1992, Xie entered the United States illegally. One year later, he filed an application for asylum under 8 U.S.C. § 1158 and statutory withholding of removal under 8 U.S.C. § 1231. He asserted that he was seeking asylum because he was subject to persecution in China for his role in the student movement.

In April 1997, the government began removal proceedings. On October 7 of that year, a preliminary removal hearing was held before an IJ. At the hearing, Xie conceded his removability but made clear his reliance on his October 1993 asylum application. The IJ eventually scheduled an evidentiary hearing for December 2, 1998 to rule on the application.

On December 1, 1998, Xie prepared and executed an affidavit, which he attached as an addendum to his previous asylum application. Xie Aff., Dec. 1, 1998. According to the affidavit, on April 15, 1998, while in the United States, Xie married Lu Biqin, who had "also escaped from China without permission and entered the United States illegally." Id. ¶ 3. Xie asserted that he feared persecution if they were to return to China, because of China's family planning policy. He also stated that his wife was pregnant with the couple's first child and that he and his wife planned to have two or three children eventually. He asked that the IJ "consider [his] claim in light of [his] new situation." Id. ¶ 1.

On July 22, 1999, the IJ held a hearing on the merits of Xie's application. In his oral decision denying the application, the IJ noted that the government had stipulated that Xie "might very well be eligible for asylum" as a result of his "well-founded fear" of being persecuted by China's family planning policies. In re Zhang Jian Xie, No. A 73 185 935 (DOJ Immig. Ct. July 22, 1999), Oral Dec. Tr. at 2. But the IJ found that, by assisting in the transportation of women to hospitals where they underwent forced abortions, Xie "had a hand in implementing the policy which we now define as persecution." Id. at 5. He concluded that Xie could therefore not be deemed a refugee within the meaning of 8 U.S.C. § 1101(a)(42) and was consequently not eligible for asylum. The IJ denied Xie's application for withholding of removal on the same grounds.

Xie appealed to the BIA, which summarily affirmed the IJ's decision. This petition followed.

DISCUSSION

I. Standard of Review

"It is well-settled that when the BIA summarily affirms an IJ's decision, we review the decision of the IJ directly." Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 189 (2d Cir.2005).

In reviewing asylum determinations, we defer to the factual findings of ... the IJ if they are supported by substantial evidence. Under this standard, we will not disturb a factual finding if it is supported by reasonable, substantial, and probative evidence in the record when considered as a whole. Indeed, we must uphold an administrative finding of fact unless we conclude that a reasonable adjudicator would be compelled to conclude to the contrary.

Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks, citations and footnote omitted); see also 8 U.S.C. § 1252(b)(4)(B) (stating that "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"). We review the IJ's conclusions of law de novo. Guan Shan Liao v. U.S. Dep't of Justice, 293 F.3d 61, 66 (2d Cir.2002).

The petitioner bears the burden of proving that he or she meets the requirements of refugee status under 8 U.S.C. § 1101(a)(42). "If the evidence indicates that [the asylum applicant was a persecutor], he or she shall have the burden of proving by a preponderance of the evidence that he or she did not so act."² 8 C.F.R. § 208.13(c).

II. Asylum

Under section 208(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(b)(1)(A), an alien may be granted asylum if the Attorney General determines that he or she is a "refugee." The term "refugee" is defined by the INA as an individual who is persecuted or who has a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42). Under the INA, compulsory population control measures, such as forced abortions, constitute persecution.

[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.

Id. The BIA has interpreted this provision to apply to the husband of a woman who has experienced this form of persecution. See In re C-Y-Z-, 21 I. & N. Dec. 915, 918 (B.I.A.1997) ("The position of the Immigration and Naturalization Service is that past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse.").

8 U.S.C. § 1101(a)(42) provides, however, that the term "refugee" excludes "any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. Similarly, 8 U.S.C. § 1158(b)(2)(A)(i), which otherwise gives the Attorney General discretion to grant asylum to refugees, withholds such discretion where "the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." Id.

Because the IJ concluded that, but for Xie's own acts with respect to forced abortions, he might qualify for refugee status, the principal issue before us is whether, as a matter of law, those acts amounted to "assisting in persecution," and, if so, whether, in light of his release of one woman from custody, he is nonetheless eligible for asylum.

A. Assistance in Persecution

1. Fedorenko and Voluntariness

Xie bases his petition, as he did his application and his appeal to the BIA, in large measure on the notion that his conduct was not voluntary. Neither the relevant statutes nor the case law, however, provides support for an "involuntariness...