Meng v. Holder

Decision Date03 November 2014
Docket NumberDocket No. 12–2258–ag.
Citation770 F.3d 1071
PartiesSUZHEN MENG, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Gary J. Yerman, The Yerman Group, LLC, New York, NY, for Petitioner.

Alison Marie Igoe, Senior Counsel (Stuart F. Delery, Principal Deputy Assistant Attorney General; Lyle Jentzer, Senior Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: WINTER, RAGGI, CARNEY, Circuit Judges.

REENA RAGGI, Circuit Judge:

Petitioner Suzhen Meng is a native and citizen of the People's Republic of China who seeks asylum, withholding of removal, and relief pursuant to the Convention Against Torture (“CAT”) based on past political persecution in China, which she claims to have experienced because, as a local public security officer, she refused to collect security fees and reported police corruption. Meng now petitions this court for review of the May 9, 2012 decision of the Board of Immigration Appeals (“BIA”) upholding the April 22, 2010 decision of Immigration Judge (“IJ”) Javier E. Balasquide, which denied Meng such relief and ordered her removal from the United States. See In re Suzhen Meng, No. A089 224 906 (B.I.A. May 9, 2012), aff'g No. A089 224 906 (Immig.Ct.N.Y.C. Apr. 22, 2010).

Meng contends that the agency erred in concluding that the statutory “persecutor bar” rendered her ineligible for asylum and withholding of removal. See8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i). She maintains that her actions as a public security officer, specifically, her reporting women pregnant in violation of China's family planning limitations to local authorities, were insufficient as a matter of law to constitute “assistance” in persecution. Meng also challenges the agency's finding that she failed to carry her burden for CAT relief.

For the reasons explained in this opinion, we identify no error in the agency's rulings and, accordingly, we deny the petition for review.

I. BackgroundA. Meng's Application for Relief

On February 25, 2008, Meng was admitted to the United States as a nonimmigrant visitor with authorization to remain for six months. Five months later, on July 24, 2008, Meng filed for asylum, withholding of removal, and CAT relief, stating that she had suffered past political persecution when, as a public security officer in her local community, she refused to collect a security fee from residents and wrote a letter to the local public security bureau alleging that the police chief was corrupt. Meng asserted that, as a result of these actions, her passport was confiscated and she was arrested and held in custody for 14 days, during which time a guard slapped her in the face several times and fellow prisoners beat her on instruction of the guards. Ten months later, Meng's passport was returned when she promised not to engage in any further anti-government activities, whereupon she left China.

B. Meng's Immigration Hearing

On September 16, 2008, Meng was charged as subject to removal for having overstayed her visa. See8 U.S.C. § 1182(a)(7)(A)(i)(I). At an October 1, 2009 hearing before the IJ, Meng pursued her claim for relief from removal by testifying to the persecution alleged in her application. She also testified to her job responsibilities as a public security officer, a position she had held for 22 years. Meng stated that, in that capacity, she oversaw approximately 1,100 households, and that her duties included reporting all pregnant women to China's family planning office, including women pregnant in violation of state limitations. Meng understood that when she reported a policy-violating woman to authorities, that woman would be punished, typically by being forced to undergo an abortion or sterilization. Indeed, she testified to having seen such women dragged away forcibly by the police. Nevertheless, Meng voluntarily continued to serve as a security officer and to make her reports, although she sometimes advised women whom she would report as being pregnant in violation of family planning policy to go into hiding or to flee.

C. Denial of Relief

On April 22, 2010, the IJ denied Meng's application for relief and ordered her removed. Although the IJ found Meng credible, he ruled that her active assistance in the persecution of women pregnant in violation of China's family planning policy barred her from receiving asylum or withholding of removal. The IJ further denied Meng CAT relief, concluding that she had failed to show that it was more likely than not that she would be tortured if returned to China.

The BIA essentially agreed with the IJ and dismissed Meng's appeal, prompting this petition for review.

II. DiscussionA. Standard of Review

On a petition for review of a BIA decision, we apply the deferential substantial-evidence standard to the agency's findings of fact, 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 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We apply de novo review, however, to questions of law, including whether an alien's conduct could render her a “persecutor” as that term is statutorily defined. See8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).

Where, as here, the BIA upholds the IJ's decision and “closely tracks the IJ's reasoning, this Court may consider both the IJ's and the BIA's opinions for the sake of completeness.” Maldonado v. Holder, 763 F.3d 155, 158–59 (2d Cir.2014).

B. Asylum and Withholding of Removal: The “Persecutor Bar”

Asylum is a form of discretionary relief that allows an otherwise removable alien to remain and work in the United States if she demonstrates that she is a “refugee,” i.e., an alien who “is unable or unwilling to return to, and is unable or unwilling to avail ... herself of the protection of, [her native] country because of [past] persecutionor a well founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See8 U.S.C. §§ 1101(a), 1158(b)(1)(A), (b)(3), (c)(1); 8 C.F.R. §§ 1208.13(b), 1208.21; Mei Fun Wong v. Holder, 633 F.3d 64, 68 (2d Cir.2011). Withholding of removal, meanwhile, is a form of mandatory relief that prevents the removal of an alien to a country where “the alien's life or freedom would be threatened ... because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3).

Both forms of relief are subject to a statutory “persecutor bar,” which renders an alien ineligible for either asylum or withholding if she has “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. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see Xu Sheng Gao v. U.S. Att'y Gen., 500 F.3d 93, 97–98 (2d Cir.2007). This court has identified four factors relevant to determining when this persecutor bar applies: (1) “the alien must have been involved in acts of persecution”; (2) a “nexus must be shown between the persecution and the victim's race, religion, nationality, membership in a particular social group, or political opinion”; (3) if the alien “did not [herself] incite, order, or actively carry out” the persecution, her conduct “must have assisted the persecution”; and (4) the alien must have had “sufficient knowledge that ... her actions may assist in persecution to make those actions culpable.” Balachova v. Mukasey, 547 F.3d 374, 384–85 (2d Cir.2008) (internal quotation marks omitted). Where evidence indicates that an alien assisted in persecution, the alien seeking relief from removal bears “the burden of proving by a preponderance of the evidence” that she “did not so act.” 8 C.F.R. § 208.13(c); see Zhang Jian Xie v. INS, 434 F.3d 136, 139 (2d Cir.2006).

Here, the IJ and BIA concluded that Meng had assisted in the persecution of women who became pregnant in violation of China's family planning policy because, in her role as a public security officer, she had reported such women to Chinese authorities for more than two decades knowing that, as a result, any number of these women would be subjected to forced abortions or sterilizations. Meng does not—and cannot—dispute that forced abortions and involuntarily sterilizations constitute persecution on a protected ground; they are statutorily defined as such. See8 U.S.C. § 1101(a)(42); Yan Yan Lin v. Holder, 584 F.3d 75, 80 (2d Cir.2009) (“It is settled law that forced abortion is persecution on account of political opinion.”). Nor does she dispute that women in her community who became pregnant in violation of family planning policy were subjected to such persecution. Instead, Meng contends that the record evidence was insufficient as a matter of law to admit a finding that she “assisted” in such persecution. She maintains that her actions in registering and reporting unauthorized pregnancies were merely tangential, passive accommodations of the persecutory conduct of Chinese family planning authorities, which Zhang Jian Xie v. INS, 434 F.3d at 143, holds is not enough to constitute assistance in persecution. See also Xu Sheng Gao v. U.S. Att'y Gen., 500 F.3d at 99–100 (holding mere association with persecutory enterprise insufficient to trigger persecutor bar). Indeed, Meng argues that Xu Sheng Gao requires evidence that one of her reports led to a specific forced abortion or involuntary sterilization to admit a finding of assistance. See id. In fact, the cited precedents do not support Meng's arguments.

In Zhang Jian Xie, at the same time that this court observed that conduct “passive in nature” and “tangential” to third-party acts of oppression is...

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