465 F.3d 497 (2nd Cir. 2006), 04-3965, Jian Hui Shao v. Board of Immigration Appeals

Docket Nº:Docket No. 04-3965-AG.
Citation:465 F.3d 497
Party Name:JIAN HUI SHAO, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.
Case Date:October 12, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 497

465 F.3d 497 (2nd Cir. 2006)

JIAN HUI SHAO, Petitioner,

v.

BOARD OF IMMIGRATION APPEALS, Respondent.

Docket No. 04-3965-AG.

United States Court of Appeals, Second Circuit.

October 12, 2006

Argued: March 9, 2006

Petitioner seeks review of an order of the Board of Immigration Appeals ("BIA") affirming without opinion an order of an immigration judge ("IJ") denying his application for asylum and other relief. The IJ found that petitioner's testimony, in which he claimed to fear persecution because of China's family planning policy, was not credible. Petitioner argues that (1) the IJ erred in finding petitioner not credible with regard to his claim of past persecution and (2) the IJ erred as a matter of law in concluding that petitioner's having fathered two children in China is not itself grounds for a well-founded fear of future persecution entitling him to relief.

We reject petitioner's challenge to the IJ's adverse credibility finding, and we vacate the BIA's order and remand the cause to the BIA so it may decide the statutory interpretation question in the first instance.

Page 498

Gary J. Yerman, New York, NY, for Petitioner.

Richard H. Loftin, Assistant United States Attorney (David P. York, United States Attorney, on the brief), United States Attorney's Office for the Southern District of Alabama, Mobile, AL, for Respondent.

Before CALABRESI, CABRANES, and WESLEY, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

We consider here whether a person who fathers or gives birth to two or more children in China, in apparent violation of China's family planning policies, may qualify on that basis alone as "a person who has a well founded fear that he or she will be forced" by the Chinese government "to abort a pregnancy or to undergo involuntary sterilization" and may accordingly qualify as a refugee. See 8 U.S.C. § 1101(a)(42) (defining "refugee").1 We consider whether this question of statutory interpretation should be decided in the first instance by the administrative agency charged with enforcing the relevant portion of the Immigration and Nationality Act of 1952 ("INA").

Petitioner Jian Hui Shao, a native and citizen of China, seeks review of an order of the Board of Immigration Appeals ("BIA") affirming without opinion an order of Immigration Judge ("IJ") William Van Wyke denying his application for asylum, withholding of removal pursuant to the INA, and relief under the Convention Against Torture ("CAT"), 2 and ordering

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petitioner removed to China. See In re Jian Hui Shao, No. A 79 759 247 (B.I.A. June 28, 2004), aff'g no. A 79 759 247 (Immig. Ct. N.Y. City February 27, 2003).

Petitioner argued that he was entitled to asylum on the ground that he had fled China to escape its family planning program and is at risk of being forcibly sterilized if he returns to China because he and his wife have two children. The IJ, largely because he did not find Shao's testimony credible, denied all his applications for relief and ordered him removed to China. The BIA affirmed without opinion as prescribed by 8 C.F.R. § 1003.1(e)(4), see generally Kambolli v. Gonzales, 449 F.3d 454, 458-60 (2d Cir. 2006) (describing BIA "streamlining" program), and this petition followed.

INTRODUCTION

In February 2002, Shao entered the United States at Honolulu International Airport carrying phony documents. After being served a Notice to Appear by the Immigration and Naturalization Service ("INS"), 3 he conceded removability as charged and applied for asylum and other relief. In his airport interview, his asylum application, and his testimony before the IJ, 4 Shao stated that as a non-agricultural worker, he was prohibited by Chinese law from having more than one child. After he and his wife had a daughter, his wife had an intrauterine device ("IUD") inserted to prevent another pregnancy. She was required to undergo regular examinations so that the government would know if she became pregnant. About two years after the IUD insertion, Shao's wife paid a private doctor to remove the device. A few months later she became pregnant and, at some time near that of the conception, she missed her government examination.

Shao stated that family planning authorities, desiring to abort his child, detained him and demanded to know his wife's whereabouts. Authorities beat him when he refused to reveal his wife's locations; she had fled to her mother's house and subsequently to a mountainous, rural area. With the aid of a friend who worked for the police, Shao escaped from detention and fled to the home of a relative in a city from where international transport could be arranged. He paid someone to procure forged travel documents, which he used to reach the United States via Japan.

Shao testified that his wife, who has since given birth to their second child, remains in hiding and that Shao's father helps her and the children survive by delivering food and medicine to her remote location. He said that if his wife were caught by police, she would likely be sterilized against her will, as would he if he returned to China. In addition, he said he could face criminal punishment for defying the family planning authorities and for fleeing China.

The IJ identified various inconsistencies in Shao's story and stated that certain elements of the story were implausible. Accordingly, he found that Shao's testimony was...

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