Chen v. Holder

• Decision Date: 05 December 2014
• Docket Number: Docket No. 13–2030–ag.
• Citation: 773 F.3d 396
• Parties: HUO QIANG CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

773 F.3d 396

HUO QIANG CHEN, Petitioner,

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

Docket No. 13–2030–ag.

United States Court of Appeals,

Second Circuit.

Argued: Aug. 25, 2014.

Decided: Dec. 5, 2014.

Theodore N. Cox, Esq., New York, NY, for Petitioner.

Yedidya Cohen, Trial Attorney (Stuart F. Delery, Assistant Attorney General, David V. Bernal, Assistant Director, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: RAGGI, CHIN, and CARNEY, Circuit Judges.

REENA RAGGI, Circuit Judge:

Since his 2001 arrival in the United States more than thirteen years ago, Chinesenational Huo Qiang Chen has been engaged in almost constant litigation to avoid removal from this country based on claimed past persecution and feared future persecution in China for resistance to that country's coercive population control program. In this latest round of proceedings, Chen petitions for review of an April 25, 2013 decision of the Board of Immigration Appeals (“BIA”), which upheld a March 4, 2011 order by Immigration Judge (“IJ”) Sandy K. Hom denying Chen's applications for asylum and withholding of removal and directing his removal from the United States. See In re Huo Qiang Chen, No. A077 353 815 (B.I.A. Apr. 25, 2013), aff'g No. A077 353 815 (Immig.Ct.N.Y.C. Mar. 4, 2011). Chen challenges the BIA's determination that, under the circumstances of this case, imposition of a fine equal to approximately twenty times Chen's annual income and, after Chen left China, a further sanction for failure to pay the fine, specifically, termination of his family's farming leasehold, did not establish either past persecution or a well founded fear of future persecution as those terms are used under the Immigration and Nationality Act (“INA”), Pub.L. No. 82–414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101–1537).

For reasons discussed herein, we hold that while a severe fine can amount to economic persecution, an alien claiming to have suffered past persecution must show more than the imposition of such a fine; he must show that payment of the fine (or efforts to pay or collect it) actually deprived him of the basic necessities of life or reduced him to an impoverished existence. See In re T–Z–, 24 I. & N. Dec. 163, 171, 174 (BIA 2007). At the same time, however, we clarify that an unpaid fine and sanctions imposed after an alien is already in the United States for nonpayment of a fine may support a well founded fear of future persecution if the alien were returned to his native country, particularly where the record indicates a likelihood that authorities would continue to demand payment of the fine and such payment would impoverish the alien or deprive him of the basic necessities of life.

Substantial evidence here supports the agency's finding that Chen failed to demonstrate that the imposition of a severe fine deprived him of the basic necessities of life or impoverished him before he left China. Accordingly, we deny review of the BIA's past persecution ruling. The agency erred, however, in concluding that no evidence existed of continuing demands for payment while Chen has been in the United States and in reaching other factual conclusions not supported by substantial evidence. We therefore grant review of the BIA's feared future persecution ruling. Accordingly, we vacate the BIA's order insofar as it denied Chen both asylum and withholding of removal based on such ruling, and we remand for further proceedings consistent with this opinion.

I. BackgroundA. Chen's Fines for Resisting China's Population Control Program

In China, Chen, who is almost illiterate, had worked as a farmer on a one-third acre plot of land leased to him (and to his father before him) by the government in a sharecropper arrangement. Chen realized approximately 1,000 Renminbi (“rmb”) per year from farming, which he used to support himself, his wife, and their three children. Chen sporadically supplemented these earnings by doing odd jobs in his village, for which he was generally paid 15 rmb a day. ¹

By having three children, Chen and his wife had violated China's coercive population control program. As punishment, Chinese officials sterilized Chen's wife, and in April 1996, fined Chen 13,000 rmb. Chen paid 5,000 rmb of this fine, raising the money by selling his television and some rice and by borrowing 2,000 rmb from his sister. Chen testified that, in September 1996, government officials gave him ten days to pay the 8,000 rmb outstanding on the fine as well as an additional 10,000 rmb penalty. Thus, in 1996, Chen was fined a total of 23,000 rmb, with 18,000 rmb still owed.

Ten days later, with the fine unpaid, government officials came to Chen's home in search of property that might be seized to satisfy the fine. Although they apparently found nothing worth taking, an argument ensued, which prompted Chen to flee his village to avoid retaliation.

For several years Chen hid in a neighboring village where he earned 1,500 rmb per year—more than he had earned farming—tending a community cow. Meanwhile, his wife continued to farm their assigned land.

B. Chen Illegally Enters the United States; Chinese Authorities Terminate His Farming Leasehold

In 2001, Chen decided to leave China, paying a smuggler $50,000 to help him enter the United States. Chen's friends and relatives loaned him the money necessary to pay the smuggling fee. Since 2001, Chen has resided in New York, earning $9,000 to $10,000 a year working in the construction and restaurant industries. By 2010, he had repaid his debt to friends and relatives. Also, since 2003, Chen has been the sole support for his wife and children in China. In that year, as punishment for Chen's failure to pay the outstanding fine, Chinese officials terminated his family's right to farm its assigned plot of land. Chen's wife has not worked since that time. Chen asserts that government officials nevertheless have continued coming to his family's home to seek payment of the fine.

C. Chen's Efforts To Secure Relief from Removal

1. Initial Agency Denial

Upon Chen's April 2001 arrival in the United States, immigration proceedings were initiated against him. From the outset, Chen conceded removability but requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”) based on feared persecution for resistance to China's population control program. He supported his claimed fear by reference to his wife's sterilization, the imposition of a 23,000 rmb fine, and—after 2003—the revocation of his family's farming rights for failure to pay the fine.

On May 13, 2002, after Chen's first hearing, the IJ found him not credible and denied him relief from removal. Chen appealed to the BIA, which, on October 8, 2003, rejected the IJ's adverse credibility determination, but nevertheless concluded that Chen had failed to establish eligibility for asylum, withholding of removal, or CAT relief. Chen unsuccessfully moved for the BIA to reopen and reconsider its ruling, whereupon he petitioned this court for review of the BIA's decision. On June 14, 2006, pursuant to a stipulation and settlement by the parties, this court vacated the BIA's decision and remanded for further proceedings and reconsideration in light of Diallo v. INS, 232 F.3d 279, 288–90 (2d Cir.2000) (holding that BIA may deny relief for lack of corroboration only if it (a) identifies particular pieces of missing, relevant documentation, and (b) shows that documentation at issue was reasonably available to alien), and Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir.2003) (same). Almost a year later, on May 30, 2007, the BIA remanded the case to the IJ.

2. Second Agency Denial

After further hearings, the IJ again denied Chen relief from removal on March 6, 2008. The IJ concluded that Chen (a) had not established entitlement to CAT relief, (b) was not eligible for asylum or withholding of removal based on his wife's sterilization, and (c) was not otherwise eligible for asylum or withholding of removal because he had not demonstrated his own resistance to the coercive population control policies. In a July 20, 2009 decision, the BIA identified error in the IJ's final conclusion. It found that Chen's payment to have his wife's intrauterine device removed and his purposeful failure to obtain birth permits for his second and third child manifested the necessary resistance. Accordingly, the BIA remanded the case to the IJ, with specific directions that further evidence be taken as to Chen's financial circumstances to determine if he was entitled to relief based on economic persecution.

3. Third Agency Denial

Chen provided further testimony before the IJ on October 26, 2010. On March 4, 2011, the IJ again ordered removal, concluding that Chen had waived his original request for CAT relief by not pursuing it further on remand and had not established either past economic persecution or a well founded fear of future economic persecution so as to warrant either asylum or withholding of removal. With respect to the latter conclusion, the IJ found that, although Chen had been fined a large amount, he had not demonstrated that the fine caused him substantial economic harm because (a) after Chen went into hiding, his family's income doubled because he was able to earn 1,500 rmb per year in a neighboring village while his wife continued to work their farm; (b) when Chinese authorities visited his home looking for valuables that might satisfy the fine, they seized nothing; (c) Chen had the demonstrated ability to borrow significant amounts of money—up to $50,000—from family and friends; (d) Chen had already left China when authorities terminated his farming leasehold in 2003; and (e) in the United States, Chen was able to earn enough money to repay his smuggling debt, support his family in China, and accumulate savings of...