Chen v. U.S. Immigration & Naturalization Serv.

• Decision Date: 24 September 1999
• Docket Number: No. 98-2005,98-2005
• Citation: 195 F.3d 198
• Parties: (4th Cir. 1999) YONG HAO CHEN, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent. (A72-379-186). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 198

195 F.3d 198 (4th Cir. 1999)

YONG HAO CHEN, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 98-2005 (A72-379-186).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: September 24, 1999.

Decided: October 20, 1999.

On Petition for Review of an Order of the Board of Immigration Appeals.

COUNSEL ARGUED: Lawrence H. Rudnick, STEEL, RUDNICK & RUBEN, Philadelphia, Pennsylvania, for Petitioner. Norah Ascoli Schwarz, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Beverly Yeskolski, HYDER, LOWE & GALSTON, Norfolk, Virginia, for Petitioner. Frank W. Hunger, Assistant Attorney General, Francesco Isgro, Senior Litigation Counsel, Office of Immigration Litigation Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before WIDENER and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Widener and Senior Judge Butzner joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Yong Hao Chen, a citizen of the People's Republic of China (China), petitions for review of a final order of the Board of Immigration Appeals denying his application for asylum and withholding of deportation. Chen maintains that he is entitled to refugee status because he has a well-founded fear, based on China's"one child" population control program, of being subjected to an involuntary sterilization procedure, or of being persecuted for a refusal to undergo such a procedure. The Board held that Chen's fears are not wellfounded. Because substantial evidence supports the Board's decision, we affirm.

I.

Yong Hao Chen came to the United States on a student visa in September 1990 to study at Old Dominion University. After Chen was seriously injured in a work-related accident, Chen's wife, Wei Kai Li, joined him in Virginia in 1991. Chen's student visa expired in 1994. On July 2, 1996, the Immigration and Naturalization Service (INS) issued orders requiring Chen and Wei Kai Li to show cause for their failure to comply with the terms under which they were admitted to the country. Deportation proceedings before an immigration judge followed, at which both Chen and Wei Kai Li testified.

According to their testimony, Chen and Wei Kai Li have two children, and Chen also has an older child from his first marriage. Chen and Wei Kai Li's first child, who now lives with Wei Kai Li's mother in China, was born in Shanghai in May 1990. The couple maintained that they faced severe pressure, both at work and in study groups, to abort this pregnancy because the child would be Chen's second. They secured a permit to have the child only after making payments (characterized by them variously as "fines," "gifts," and "bribes") to government family planning officials. They were also forced to sign agreements with both of their employers and with the local family planning office promising that they would not have any more children and that they would undergo sterilization. The couple was unable to produce copies of these agreements but did assert that in each case the agreements were kept on file by the person exacting the promise. Wei Kai Li testified that, after giving birth, she was able to avoid immediate sterilization because the difficulty of the birth precluded attempting the procedure, and because the "doctor kn[e]w" her. The couple did not explain how they were able to avoid sterilization during the remainder of their time in China.

Chen and Wei Kai Li's second child (Chen's third) was born in the United States in July 1993. The couple testified that there would be severe repercussions for them if they returned to China with another child. They speculated that they would be forced to undergo sterilization, imprisoned, professionally restricted, and severely fined. They also expressed generalized fears about what their American-born son's status would be if they were forced to return, claiming that his access to educational opportunities and housing would be limited. The couple pointed to the fact that they had already sent money back to China to pay fines associated with their older child, although Chen's testimony suggested that these were merely fees for the cost of the child's housing and education. Chen also submitted a 1995 report by Human Rights in China, which describes severe repercussions for some families in violation of China's "one child" policy, including beatings and forced surgeries.

The INS, in arguing that Chen has no objective basis for his fears of persecution, submitted a 1995 State Department report on conditions in China. The report indicates that although forced abortions and sterilizations still occur, these practices have been on the decline since the mid-1980's, and they are increasingly limited to rural areas. Instead, according to the report, the "one child" policy "relies on education, propaganda and economic incentives as well as more coercive measures, including psychological pressure and economic penalties." Furthermore, the report cites interviews with family planning officials from Shanghai--Chen and Wei Kai Li's home city--in which the officials explained that couples returning from university study abroad with an additional child have been "excused" from paying any penalty or have paid only fees commensurate with the cost of housing and educating the child.

II.

The Immigration and Nationality Act provides the Attorney General with discretion to grant asylum to any alien who is a "refugee." 8 U.S.C.A. § 1158(b) (West 1999). The Act defines "refugee" as a person unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . ." 8 U.S.C.A. § 1101(a)(42)(A) (West 1999).

Prior to 1997, the Board of Immigration Appeals consistently held that persecution under China's "one child" family planning policy was not persecution "on account of political opinion," and that victims of these policies were therefore not entitled to asylum, see In re Chang, Interim Decision 3107 (B.I.A. 1989); that holding was affirmed on review by the courts. See Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995), cert. denied, 516 U.S. 1176 (1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995). Apparently in response to this interpretation, Congress amended the definition of "refugee" in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), effective April 1, 1997, to include those who had been persecuted under a coercive family planning program, or who legitimately feared such persecution:

For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

Pub. L. No. 104-208, § 601(a)(1), 110 Stat. 3009-689 (1996) (current version at 8 U.S.C.A. § 1101(a)(42)). Chen maintains that this amendment entitles him to refugee status because he has a well-founded fear that he will be forced to undergo an involuntary sterilization procedure or that he will be subject to persecution for his refusals to undergo such a procedure.

The "well founded fear of persecution" standard contains a subjective and an objective component. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). An applicant may satisfy the subjective element by presenting "`candid, credible, and sincere testimony' demonstrating a genuine fear of persecution." Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992) (quoting Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987)). The objective element requires the asylum petitioner to show, with specific, concrete facts, that a reasonable person in like circumstances would fear persecution. See Huaman-Cornelio v. Board of Immigration Appeals , 979 F.2d 995, 999 (4th Cir. 1992); MA v. INS, 899 F.2d 304, 311 (4th Cir. 1990). The applicant bears the burden of demonstrating eligibility for asylum. See 8 C.F.R. § 208.13(a)(1999); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999).

The immigration judge made no specific finding as to the subjective component. However, the judge found that Chen did not qualify for asylum under even the amended definition of"refugee" because he was unable to establish that his fears of persecution and involuntary sterilization are objectively reasonable. Dismissing Chen's appeal, the Board held that the immigration judge had properly relied on the State Department report that couples returning to Shanghai from university study abroad had been excused from any penalties. The Board found that Chen had failed to rebut this evidence.

We accord deference to the decisions of the Board and must uphold the Board's determination "if supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C.A. § 1105a(a)(4) (West 1994). Under this standard, a court can reverse only if the evidence presented was "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). (Although IIRIRA repealed § 1105a, that standard applies here under IIRIRA's transitional rules because Chen was in deportation proceedings prior to April 1, 1997. See Pub. L. No....