Chen v. U.S. Atty. Gen., 07-11562.

• Citation: 513 F.3d 1255
• Decision Date: 17 January 2008
• Docket Number: No. 07-11562.,07-11562.
• Parties: Su Qing CHEN, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

513 F.3d 1255

Su Qing CHEN, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 07-11562.

United States Court of Appeals, Eleventh Circuit.

January 17, 2008.

Fengling Liu, Fengling Liu Law Office, New York City, for Chen,

Jesse M. Bless, David V. Bernal, Ana T. Zablah, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before ANDERSON, BLACK and HILL, Circuit Judges.

BLACK, Circuit Judge:

Su Qing Chen petitions for review of the Board of Immigration Appeals' (BIA) decision upholding the Immigration Judge's (IJ) denial of her application for asylum and withholding of removal under the Immigration and Nationality Act (INA). Chen argues the BIA erred in upholding the IJ's finding that Chen assisted in persecution and was therefore ineligible for relief. For the reasons set forth in this opinion, we DENY the petition for review.

I. BACKGROUND

According to her" undisputed testimony before the IJ, Chen began working at a governmental family planning office in her hometown of Changle City in Fujian Province, China in January 2003. She procured this employment through her uncle's influence and took it voluntarily. Chief among her duties was her responsibility to watch over pregnant women detained by Chinese authorities for violating the country's family planning policies. The authorities would detain these women in locked rooms at the facility until their scheduled forced abortions. Chen guarded the women at the facility. Authorities provided her with a rod or baton to use during her duties, although she never actually used the weapon against the detained women. She had access to the keys to the rooms in which the women were confined. When she accepted employment, Chen testified she knew the facility housed pregnant women scheduled for abortions, but she thought the forced abortion program was limited to women who were one or two months pregnant.

On the evening of February 14, 2003, Chen was on duty when a group of eight women were brought into the facility and placed in locked rooms. One of the women was crying, and. Chen approached her to investigate. The woman explained to Chen she was upset because she was eight months pregnant with a boy but already had another child. She begged Chen to release her so she would not have to undergo a forced abortion. Chen said she was surprised to see the family planning policy enforced on a woman so close to full term. Chen retrieved the keys to the woman's room, unlocked it, and released her. Chen then left the facility.

She returned home, and the next day family planning officials brought her to their office. They terminated her position and scolded her for releasing the detained female. Chen was told to return home, and her activities would be watched. Chen stayed with her parents for a ten days but left their home out of fear of reprisal. From February 2003 until January 2005 she stayed in China but hid from the government, staying first with her aunt and later living on her own while holding sundry jobs at factories and restaurants. She then fled China for Thailand. Still afraid of retaliation by the government if she returned to China, Chen arranged to travel to the United States.

Chen arrived in the United States on May 21, 2005, and quickly was served with a Notice to Appear. She filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), claiming she had a wellfounded fear of persecution if sent back to China on account of her opposition to the family planning policy. The IJ held a hearing and, in a written opinion, denied her application. Finding Chen credible, the IJ ruled her termination by the family planning authorities did not constitute persecution. Additionally, the IJ found she had assisted in persecution and was ineligible for relief.

The BIA upheld the IJ on his finding that Chen was a persecutor and therefore ineligible for asylum and withholding of removal.¹ Relying on the statutory disqualification for those who assist in persecution, the BIA found Chen's participation as a guard at the family planning facility rose to the level of "assistance" required under the statute. Chen timely filed a petition for review of the BIA's decision.

II. STANDARD OF REVIEW

The BIA's determinations on questions of law are reviewed de novo. See Assa'ad v. U.S. Att'y Gen. 332 F.3d 1321, 1326 (11th Cir.2003). Findings of fact must be supported by substantial evidence. Djonda v. U.S. Att'y Gen., 493 F.3d 1245, 1249 (11th Cir.2007). Findings of fact are followed unless a reasonable factfinder would be compelled to a conclusion contrary to that of the Immigration Court. Lonyem v. U.S. Att'y Gen., 352 F.3d 1338, 1340 (11th Cir.2003).

III. DISCUSSION

This case concerns the statutory exclusion disqualifying those who assist or participate in persecution from receiving asylum or withholding of removal. The Department of Homeland Security may grant asylum to an alien present in the United States if such alien establishes status as a refugee. 8 U.S.C. § 1158(b)(1)(A). An alien is a refugee if he is unable or unwilling to return to his country of origin on account of past persecution or a well-founded fear of future persecution based on his race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b). Persecution for "resistance to a coercive population control program," like China's family planning policies, can constitute persecution based on political opinion. 8 U.S.C. § 1101(a)(42). Additionally, an alien subject to removal may be withheld from removal if the alien's life or freedom would be threatened on grounds similar to those for demonstrating well-founded fear of persecution. See 8 U.S.C. § 1231(b)(3)(A).

An alien is ineligible for both asylum and withholding of removal if "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 ...." 8 U.S.C. § 1158(b)(2)(A)(i); id. § 1231(b)(3)(B)(i). If there is evidence indicating grounds for mandatory denial of an application apply, the alien must demonstrate "by a preponderance of the evidence that such grounds do not apply." 8 C.F.R. § 1240.8(d).

Determining the level of conduct necessary to constitute "assistance" in persecution under the relevant statutory disqualifications is a question of first impression for this Circuit.² Other circuits addressing the issue uniformly seek guidance from the Supreme Court's discussion in Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Fedorenko involved the Displaced Persons Act (DPA). Enacted in 1948, the DPA allowed Europeans displaced by World War II to emigrate to the United States outside the typical immigration channels. Fedorenko, 449 U.S. at 495, 101 S.Ct. at 741. The DPA defined "displaced persons" by adopting the definition in the Constitution of the International Refugee Organization of the United Nations. Id. at 495 n. 3, 101 S.Ct. at 741 n. 3. That definition excluded those who "assisted the enemy in persecuting civil populations ...." Id. at 495 n. 4, 101 S.Ct. at 741 n. 4. In footnote 34 of Fedorenko, the Supreme Court discussed the type of inquiry necessary for giving content to the assistance language:

[A]n individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians.

Id. at 512 n. 34, 101 S.Ct. at 750 n. 34. Fedorenko's actions clearly amounted to assistance, as he had admitted to firing on concentration camp prisoners. Id. at 500, 101 S.Ct. at 744. The Court recognized closer cases would require difficult linedrawing to determine what conduct constitutes assistance. Id. at 512 n. 34, 101 S.Ct. at 750 n. 34.

All fellow circuits that have addressed this issue have used Fedorenko's language to establish the standard for defining whether conduct amounts to assistance in persecution. The Eighth Circuit, in interpreting Fedorenko, requires "a particularized evaluation ... to determine whether an individual's behavior was culpable to such a degree that he could be fairly deemed to have assisted or participated in persecution." Hernandez v. Reno, 258 F.3d 806, 813 (8th Cir.2001). The individual's personal culpability must be assessed. Id. According to the Seventh Circuit, Fe dorenko requires a distinction between "genuine assistance in persecution and inconsequential association with persecutors." Singh v. Gonzales, 417 F.3d 736, 739 (7th Cir.2005). The Second Circuit distinguishes between active conduct having "direct consequences for the victims," and conduct merely "tangential to the acts of oppression and passive in nature." Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006). The Ninth Circuit examines "the degree to which [applicant's] conduct was central, or integral, to the relevant persecutory acts." Im v. Gonzales, 497 F,3d 990, 997 (9th Cir,2007).

We agree with these circuits. The standard for determining whether an asylum applicant is ineligible for asylum and withholding of removal due to assistance or participation in persecution is a particularized, fact-specific inquiry into whether the applicant's personal conduct was merely indirect, peripheral and inconsequential association or was active, direct and integral to the underlying persecution.

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