633 F.3d 64 (2nd Cir. 2011), 08-5328, Mei Fun Wong v. Holder

Docket Nº:08-5328-ag.
Citation:633 F.3d 64
Opinion Judge:REENA RAGGI, Circuit Judge:
Party Name:MEI FUN WONG, a.k.a. Mei Fen Huang, Ling Go, Petitioners, v. United States Attorney General Eric H. HOLDER, Jr.,[1] Respondent.
Attorney:Henry Hwang (Theodore N. Cox, on the brief), New York, NY, for Petitioners. D. Nicholas Harling, Trial Attorney (Tony West, Assistant Attorney General, Jamie M. Dowd, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, W...
Judge Panel:Before: RAGGI, HALL, Circuit Judges, and CARMAN, Judge.[2]
Case Date:February 01, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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633 F.3d 64 (2nd Cir. 2011)

MEI FUN WONG, a.k.a. Mei Fen Huang, Ling Go, Petitioners,


United States Attorney General Eric H. HOLDER, Jr., 1 Respondent.

No. 08-5328-ag.

United States Court of Appeals, Second Circuit.

February 1, 2011

Argued: March 22, 2010.

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Henry Hwang (Theodore N. Cox, on the brief), New York, NY, for Petitioners.

D. Nicholas Harling, Trial Attorney (Tony West, Assistant Attorney General, Jamie M. Dowd, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington D.C., for Respondent.

Before: RAGGI, HALL, Circuit Judges, and CARMAN, Judge.2

REENA RAGGI, Circuit Judge:

Chinese nationals Mei Fun Wong and her son Ling Go petition for review of an October 6, 2008 decision of the Board of Immigration Appeals (" BIA" or " Board" ), upholding a March 1, 2002 order by Immigration Judge (" IJ" ) William F. Jankun, directing petitioners' removal from the United States and denying their applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (" CAT" ). See Matter of M-F-W & L-G- (" In re M-F-W- " ), 24 I. & N. Dec. 633 (B.I.A.2008), aff'g Nos. A 76 641 112/113 (Immig. Ct. N.Y.C. Mar. 1, 2002).3 Because Wong failed administratively to exhaust her challenges to the denial of withholding of removal and CAT relief, we dismiss this part of her petition for lack of jurisdiction. See 8 U.S. C. § 1252(d)(1). No such jurisdictional bar pertains to her petition for review of the denial of asylum. In this respect, Wong challenges BIA determinations, detailed in a precedential opinion, (1) rejecting Wong's argument that involuntary insertion of a contraceptive intrauterine device (" IUD" ) equates to " involuntary sterilization" as that term is used categorically to identify a political " refugee" under the Immigration and Nationality Act (" INA" ), see 8 U.S. C. § 1101(a)(42); (2) requiring involuntary IUD insertion to be accompanied by aggravating circumstances to constitute " persecution" under the INA, see id. ; and (3) finding no such aggravating circumstances demonstrated in this case.4 Wong further challenges the BIA's determination that (4) in any event, she failed to establish the required nexus between the alleged harms inflicted and her resistance to China's population control policy.

Wong's assertion that involuntary IUD insertion equates to sterilization is now foreclosed by our decision in Xia Fan Huang v. Holder, 591 F.3d 124 (2d Cir.2010). For reasons discussed herein, we defer to the BIA's interpretation of the INA to preclude categorical treatment of involuntary IUD insertion as persecution and, thus, to the agency's requirement for some demonstration of accompanying aggravating circumstances to establish persecution. At the same time, however, we conclude that the BIA did not sufficiently identify the standards it applied in determining

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that neither aggravating circumstances nor nexus were established in this case, without which we cannot review its decision. Accordingly, we vacate the order of removal and remand for the agency to rectify this omission.

I. Background

A. The Factual Basis for Petitioner's Claim of Past Persecution

On January 17, 2000, Wong and her then nine-year-old son attempted to enter the United States through Seattle, Washington, without valid entry documents. Before the Immigration and Naturalization Service, Wong conceded her removability and sought asylum and other relief from removal based on a fear of future persecution. The basis for her fear was professed past persecution evidenced by her subjection to involuntary insertion of an IUD in furtherance of China's population control policy.

Testifying in support of her application in 2002, Wong essentially relied on facts stated in her asylum application and accompanying declaration. Wong stated that she was born in Fuzhou, China, where she married in 1989 and gave birth to her son on July 23, 1990. Wong's husband purportedly fled China for the United States in April 1990 to avoid persecution for his support of the student movement that culminated in the 1989 Tiananmen Square massacre. 5

About a year after Wong's husband left China, on April 24, 1991, Chinese family planning officials required her to have an IUD inserted. Finding the device painful, Wong requested its removal during one of her required quarterly gynecological examinations. With official permission denied, Wong arranged for a private doctor to remove the IUD in May 1992. When her actions were discovered in the course of a January 1993 gynecological examination, Wong refused to have another IUD inserted " because I was afraid of the pain and problems it caused." Decl. in Supp. of Asylum Appl. at 2. As a result, she was detained without harm for three days until she " finally succumbed to wearing another IUD" and her mother-in-law paid a " bribe," ostensibly a fine for Wong missing gynecological examinations, to secure her release. Id.

Five years later, in January 1998, Wong attempted to leave China to avoid what she characterized as the " continual torture and torment" of wearing an IUD. Id. Stopped in Hong Kong, she was jailed there for four months, again without harm, before being returned to the mainland. There, she was fined 20,000 RMB for leaving China illegally and for continuing to miss gynecological examinations. Wong stated that she paid the fine under threat that she would otherwise be jailed and her son prohibited from attending school.

Wong asserted that, thereafter, she continued to feel that family planning officials were " harassing" and " menacing" her, although she provided no particulars. Id. at 3. Characterizing her life as " unbearable," Wong stated that she " decided to leave China and to end the torture." Id. Accordingly, in January 2000, Wong fled to

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the United States, where she sought asylum.

Sometime in 2000, in New York, Wong had her IUD removed. The following year, she and her husband conceived a second child, who was due to be born in April 2002. In March 2002, Wong testified that if she were removed to China before delivering her child, she would be forced to undergo an abortion; if she were removed after delivering her child, she would be involuntarily sterilized.

B. Agency Proceedings

At the conclusion of the hearing on Wong's claims for relief from removal, the IJ issued an adverse oral decision. Preliminarily, the IJ expressed serious reservations as to the credibility of Wong's overall account. Although Wong claimed that she was compelled to wear an IUD after the birth of her son, the IJ noted that a 1998 State Department report stated that in Wong's province, IUD usage was mandated only for families that had two children.6 See Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, China: Profile of Asylum Claims and Country Conditions 25 (1998). Further, he pointed out inconsistencies between Wong's assertions and those made by her husband in support of his asylum application. Wong testified that from the time of their marriage (which she alternatively reported as May 31, 1989, and June 31, 1989) until her husband's departure from China in April 1990, the couple had always lived together in their home. By contrast, her husband had asserted that Chinese authorities came to the home in June 1989, prompting him to escape the premises and to hide with relatives until his departure from China the following year. Further, in a 1995 application for advanced parole, Wong's husband sought permission to return to China, professing a need to care for his dying wife who had been seriously injured in a traffic accident. Wong never reported being near death while in China.

Despite these reservations, the IJ did not rely on an adverse credibility finding to deny Wong relief from removal. Instead, he concluded that, even if Wong's account were credited,7 she failed to qualify for relief from removal because she had not demonstrated a well-founded fear that she would be forced to undergo abortion or sterilization, or would be subjected to arrest, if returned to China. Nor had she demonstrated that involuntary reinsertion of an IUD constituted past persecution.

The BIA summarily affirmed the IJ decision. Before this court considered Wong's initial petition for review of this decision, the parties submitted and we so ordered a stipulation to remand the case to the BIA for it to " explain the bases for its conclusion that the forcible insertion of an IUD, and any attendant pain or discomfort, does not fall within the amended definition of refugee." Wong v. Ashcroft, No. 03-40823-ag, at 2 (2d Cir. Apr. 28, 2006) (Stipulation and Order of Settlement and

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Dismissal).8 The BIA provided that explanation in a precedential opinion filed on October 6, 2008. See In re M-F-W-, 24 I. & N. Dec. 633. Rather than discuss that opinion in detail here, we do so in addressing Wong's petition challenges.

II. Discussion

A. Jurisdiction and Standards of Review

Our jurisdiction to review final orders of removal is established by 8 U.S. C. § 1252. Where, as here, the BIA issues a decision independent of the IJ, we review the BIA's decision alone. See Xia Fan Huang v. Holder, 591 F.3d at 127; Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir.2007). We review the agency's factual findings under the substantial evidence standard, treating them as " conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S. C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Thus, because the agency assumed the credibility of Wong's factual account...

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