Chen v. Attorney Gen. of the United States
| Decision Date | 22 July 2015 |
| Docket Number | No. 14-3852,14-3852 |
| Parties | YAQIN CHEN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
Immigration Judge: Hon. Miriam K. Mills
Argued
June 4, 2015
Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.
Oleh Roman Tustaniwsky [ARGUED]
Brooklyn, NY 11229
Counsel for Petitioner
United States Dept. of Justice
Office of Immigration Litigation
Washington, DC 20001
Thomas W. Hussey
Andrew C. MacLachlan [ARGUED]
United States Dept. of Justice
Office of Immigration Litigation, Civil Div.
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Yaqin Chen petitions for review of an order of the Board of Immigration Appeals (the "Board") denying her request for asylum, withholding of removal, and relief under Article III of the Convention Against Torture ("CAT"). We will deny the petition.
Chen, a native and citizen of the People's Republic of China, was admitted to the United States on a K-1 nonimmigrant visa in 2003. Although Chen's visa expired on February 20, 2004, she has remained in the United States, where she has married and given birth to two children. On August 2, 2007, four months after the birth of her first child and while pregnant with her second, Chen filed an application for asylum, withholding of removal, and protection under CAT. She alleged that, by giving birth totwo children, she would be viewed as having violated China's family planning policy and, therefore, if removed to China, would be subject to severe persecution such as sterilization, heavy fines, or imprisonment.
On September 10, 2007, Chen was interviewed by an asylum officer, Susan Perez, with the assistance of an interpreter provided by Chen. A written summary of the interview was prepared and read back to Chen, and she initialed each page and signed it under oath. The sworn summary of Chen's statements to the asylum officer certified that she had studied and served as a midwife in China for one year of internship and one additional year of work. Chen said that, as a midwife, she assisted doctors in performing at least ten abortions, of which five or six were done by force. She further stated that her assistance consisted of, among other things, handing "equipment" to the doctors performing the operations. (A.R. at 564.) Chen acknowledged that she knew some of the abortions with which she assisted were compelled because the patients involved were forced onto the operating table and, after the operations, she helped carry them out of the surgical room and talked with them. Chen also disclosed that she assisted doctors in performing sterilizations on two occasions. And while Chen did not describe precisely how she assisted with the sterilizations, she did testify that she knew the sterilizations were compelled because some of the patients were unwilling and some would be crying. Chen acknowledged that she was uncomfortable participating in some of the procedures. Indeed, she noted that she would "[s]ometimes cry in sympathy with women ... but they had to go through with [the] operation and so [she] would pat [their] shoulders to comfort them." (A.R. at 565.) Despite any sympathy she may have felt, Chen said that had sheever refused to assist in compelled birth control procedures, she would not have been able to become a full midwife and would lose her job.
The Department of Homeland Security charged Chen with being removable under 8 U.S.C. § 1227(a)(1)(B), for overstaying her visa. At a hearing on July 14, 2008, Chen offered testimony before an Immigration Judge ("IJ"). That testimony, however, contradicted key facts contained in the sworn summary of her interview with Officer Perez. Notably, Chen departed from her prior statement that she had assisted in five or six compelled abortions. She testified that government officials from China's family planning unit did not allow her to be involved in forced abortions and, therefore, she only observed the procedures. Chen testified that, "[a]t most, what we would do is give the nurses gloves or syringes" that contained "regular painkillers." (A.R. at 298, 299.) When asked by the IJ whether she could corroborate her story with any documents such as a curriculum description for the midwife program, Chen responded that she was unlikely to be able to obtain documents from her school in China.
On March 29, 2013, the IJ denied Chen's application for asylum and withholding of removal. That determination was based, in large part, on an adverse credibility determination due to Chen's "implausible and inconsistent testimony." (A.R. at 65.) Also, of particular importance was the IJ's conclusion that, as a result of assisting with compelled birth control procedures, Chen was herself a persecutor and thus barred from receiving asylum or withholding of removal. The IJ reasoned that Chen "[f]ail[ed] to rebut the evidence of her ineligibility based on the persecutor bar, by a preponderance of the evidence ... ." (A.R. at 65.) The IJ also concluded that Chen failed to show that shewould more likely than not be tortured upon her return to China. Subsequently, on August 25, 2014, the Board dismissed Chen's appeal of the IJ's decision. She then filed this timely petition for review.
We must address two questions in determining whether the IJ properly denied Chen's application for asylum and withholding of removal: first, whether the IJ correctly concluded that Chen engaged in persecution while in China, thus triggering the "persecutor bar"; and second, whether substantial evidence supports the IJ's determination that Chen failed to rebut the application of that bar. In our estimation, theIJ correctly concluded that the persecutor bar applies and substantial evidence supports the IJ's determination that Chen failed to rebut such application.
Asylum is a form of discretionary relief that allows an otherwise removable alien to remain and work in the United States if she can demonstrate that she is a "refugee."2 8 U.S.C. § 1158(b)(1)(A); 8 C.F.R. § 1208.13(b). The burden of proof is plainly on the applicant to establish eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B). To meet that burden, the petitioner must, with specific and credible evidence, establish past persecution on account of a statutorily protected ground, or a "well-founded fear" of future persecution on account of a protected ground. 8 C.F.R. § 208.13(b). The "well-founded fear of persecution" standard contains subjective and objective components. The subjective component requires the applicant to "present candid, credible, and sincere testimony demonstrating a genuine fear of persecution." Dankam v. Gonzales, 495 F.3d 113, 123 (4th Cir. 2007) (brackets and internal quotation marks omitted). To satisfy the objective component, the applicant must present "specific, concrete facts that would cause a reasonable person in like circumstances ... to fear persecution." Id. (omissions in original) (brackets and internal quotation marks omitted). "The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, ispersuasive, and refers to specific facts ... ." 8 U.S.C. § 1158(b)(1)(B). In addition, the IJ "may weigh the credible testimony along with the other evidence of record." Id.
Withholding of removal 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." Id. § 1231(b)(3). Notably, the standard for establishing a claim of withholding of removal is higher than the standard for asylum. Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330, 348 (3d Cir. 2008). "As with asylum, [the applicant] must show that any persecution is on account of a protected ground, but in addition, she must show that such persecution is 'more likely than not' to occur." Id.
Both asylum and withholding of removal are subject to a statutory "persecutor bar," which renders an alien ineligible for either form of relief 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." 8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see Negusie v. Holder, 555 U.S. 511, 513 (2009) ().
Forced abortions and sterilization are, by law, defined as persecution. 8 U.S.C. § 1101(a)(42).3 This case requires us to determine whether Chen's acts of handing"equipment" to doctors performing those procedures constituted assistance or participation in such persecution. Because we have not articulated our own test to determine when an applicant has "assisted" or "otherwise participated" in persecution, we turn to other circuits for guidance.
The United States Court of Appeals for the Second Circuit employs a four-part test to assess whether the persecutor bar applies: first, the alien must have been involved in an act of persecution; second, a nexus must be shown between the persecution and the victim's race, religion, nationality, membership in a particular social group, or political opinion; third, if the alien did not herself incite, order, or actively carry out the persecution, then her conduct must have assisted the persecution; and fourth, the alien must have had sufficient knowledge that...
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