Chen v. Holder

• Decision Date: 28 April 2010
• Docket Number: No. 08-2836.,08-2836.
• Parties: Shi CHEN, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

604 F.3d 324

Shi CHEN, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-2836.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 24, 2009.

Decided April 28, 2010.

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Livia M. Kiser (argued), Latham & Watkins LLP, Chicago, IL, for Petitioner.

Karen Y. Stewart, Michael C. Heyse (argued), Department of Justice, Washington, DC, for Respondent.

Before ROVNER, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Shi Chen is a native of China who as the fifth child in his family was born in severe violation of China's one-child policy. As a penalty for his unlawful birth, his mother was forcibly sterilized, and his parents were required to pay a large fine that equaled the family's annual income. Chen's aunt had earlier been forced to abort an illegal pregnancy and she, too, was thereafter involuntarily sterilized.

Children born illegally in China-known as the hei haizi-may not be listed on their family registry, the hukou, and are therefore denied many of the rights of full citizenship. Among these are the right to state-provided elementary schooling, higher education, and health care; the right to be included in the family's land and food allocation; and the right to move freely about the country. The hei haizi are also excluded from many jobs, may not acquire property, and in some cases are denied the right to marry and have children. Chen's parents paid large fines in order to list Chen on the back of their hukou; though this did not legalize him, it did allow him to attend school as long as his parents continued to pay the ongoing fines. Their ability to do so ran out before he reached high school.

When he was 17 years old, Chen left China for the United States and upon arrival was immediately detained by immigration officials. He applied for asylum, withholding of removal, and protection under the Convention Against Torture, arguing that he has been or will be persecuted because of his family's resistance to China's one-child policy and his membership in social groups that include his family and the hei haizi. See 8 U.S.C. § 1101(a)(42)(B) (persecution on account of political opinion includes persecution for resistance to a coercive population-control program). An Immigration Judge (“IJ”) denied relief, and the Board of Immigration Appeals (“BIA”) affirmed. Chen petitioned this court for review.

We grant the petition and remand to the immigration agency for further proceedings. The agency's analysis of Chen's asylum claim was incomplete. The BIA failed to address Chen's claim of past persecution based on imputed political opinion-that is, the persecution that his mother and other family members suffered for their resistance to China's coercive population-control policy. His mother's forcible sterilization does not automatically entitle Chen to a finding of past persecution, but it may in combination with other evidence show that his family's resistance to China's population-control policy has been imputed to him. The BIA also failed to consider the cumulative significance of the hardships visited upon Chen and his family-and the future hardships he would face if returned-when evaluating Chen's fear of future persecution.

I. Background

Chinese law significantly restricts the freedom of its citizens to bear children. No family is permitted to have more than two children, and Chinese law limits most families to one child. Bureau of Democracy, Human Rights & Labor, U.S. Department of State, China: Profile of Asylum Claims and Country Conditions 21 (Oct. 2005) (“2005 Country Report”). Married couples are required to use birth control and must obtain official permission-in the form of a “birth permit”-before having a second child; some provinces require a birth permit for a first child as well. Id. at 22. Violations carry heavy fines-“social maintenance and compensation” fees-as well as other consequences for the parents, including job loss or demotion, imprisonment in a “population school,” and forcible abortion or sterilization. Id. at 22-23.

Lawfully born Chinese children are listed on the family hukou, a registration document that entitles family members to the rights of full citizenship. Children born unlawfully are known as the hei haizi (meaning “black children”) and are ineligible for registration on the hukou. Immigration & Naturalization Service, U.S. Department Of Justice, Perspective Series: Chinese State Birth Planning in the 1990s and Beyond 38 (Sept. 2001). These “unplanned persons” are denied the right to state-provided elementary schooling, higher education, health care, and other governmental services and benefits. Id. As adults they are excluded from many jobs, may not purchase property, and may be denied the right to marry and have children. Id.; see also 2005 Country Report, at 23 (describing China's unregistered “floating” population).

Shi Chen was born in violation of China's one-child policy. He is a native of a small village in the Fujian province and is the youngest of five children and the only boy. Chen's parents spent many years evading the population-control authorities in their village, and his family paid dearly for his birth. Soon after Chen was born, his mother-who lived in hiding while pregnant to avoid a forced abortion-was involuntarily sterilized. His mother's sister had earlier been forced to abort an illegal pregnancy in her ninth month; afterward she was involuntarily sterilized. Chen's parents were required to pay a large fine equivalent to the family's annual income as a penalty for his unlawful birth. They had to give away one of his sisters shortly after she was born because they could not afford to keep her. During an earlier pregnancy, Chen's mother fell off a ladder while fleeing from population-control authorities; she broke both her ankles, and the baby was stillborn.

Because Chen was born illegally, he could not be registered on the hukou and his family was denied the food and land allocation provided for lawfully born children. Payment of additional, ongoing fines allowed his family to list Chen's name on the back of their hukou. This permitted him to attend school as long as his parents continued to pay; they were able to do so through the equivalent of middle-school but not beyond. (Chen's father is a subsistence farmer and works odd jobs for extra income to support the family.) As a member of the hei haizi, Chen asserts that he is denied access to health care and other governmental services; is excluded from higher education and many types of employment; and will be denied the right to marry and have children, the right to own property, and the right to freely travel within and outside of China.

In 2004, when he was 17, Chen obtained false travel documents and fled China for the United States. Upon arrival in this country, he was detained by immigration officials and placed in removal proceedings. Chen conceded removability and applied for asylum, withholding of removal, and protection against removal under the Convention Against Torture (“CAT”). Citing his family's history of persecution for violating China's one-child policy, he claimed he would be targeted for forced sterilization and other persecution if returned to China.

The IJ who heard Chen's case credited his testimony (it was corroborated by several affidavits-most notably, one from his father) but rejected his claims for relief, concluding that Chen had not established past persecution or a well-founded fear of future persecution. In the IJ's view, the economic plight his family suffered on account of his birth was not severe enough to be considered past persecution, especially since Chen had never been detained by Chinese authorities and had been permitted to attend school. The IJ also rejected Chen's argument that he had a well-founded fear of persecution based on his status as a member of the hei haizi.

The BIA affirmed the IJ's decision but conducted its own analysis. Acknowledging that economic harm can constitute persecution in appropriate circumstances, the BIA held that the economic hardship Chen's family suffered was not significant enough to constitute persecution. The BIA also rejected Chen's argument that he had a well-founded fear of future persecution; the agency based this conclusion on the fact that Chen had found employment after his family could no longer afford the fines necessary to permit him to attend school and had also obtained a Chinese passport before leaving the country. Finally, the BIA rejected Chen's claim that he would be targeted for sterilization based on his family's resistance to China's population-control policy. The BIA noted that it had never before held that “the political opinion of a parent who has been forcibly sterilized can be imputed to that parent's child,” and “current case-law [in the Seventh Circuit] does not allow the respondent's mother's political opinion to be imputed to him.” Chen petitioned this court for review.

II. Discussion

Where, as here, the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, we review the BIA's decision. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007). The agency's legal conclusions are reviewed de novo. See Mekhtiev v. Holder, 559 F.3d 725, 729 (7th Cir.2009). We will uphold the agency's factual findings so long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Chatta v. Mukasey, 523 F.3d 748, 751 (7th Cir.2008) (quotation marks omitted). Under this deferential standard of review, reversal is warranted only if “the evidence compels a different result”; we will not overturn the agency's findings simply because we might have decided the case differently. Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir.2004). On the other hand, remand may be warranted when the agency overlooks key aspects of an asylum-seeker's...