Jian Hui Shao v. Board of Immigration Appeals

• Decision Date: 12 October 2006
• Docket Number: Docket No. 04-3965-AG.
• Citation: 465 F.3d 497
• Parties: JIAN HUI SHAO, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

465 F.3d 497

JIAN HUI SHAO, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.

Docket No. 04-3965-AG.

United States Court of Appeals, Second Circuit.

Argued: March 9, 2006.

Decided: October 12, 2006.

Gary J. Yerman, New York, NY, for Petitioner.

Richard H. Loftin, Assistant United States Attorney (David P. York, United States Attorney, on the brief), United States Attorney's Office for the Southern District of Alabama, Mobile, AL, for Respondent.

Before CALABRESI, CABRANES, and WESLEY, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

We consider here whether a person who fathers or gives birth to two or more children in China, in apparent violation of China's family planning policies, may qualify on that basis alone as "a person who has a well founded fear that he or she will be forced" by the Chinese government "to abort a pregnancy or to undergo involuntary sterilization" and may accordingly qualify as a refugee. See 8 U.S.C. § 1101(a)(42) (defining "refugee").¹ We consider whether this question of statutory interpretation should be decided in the first instance by the administrative agency charged with enforcing the relevant portion of the Immigration and Nationality Act of 1952 ("INA").

Petitioner Jian Hui Shao, a native and citizen of China, seeks review of an order of the Board of Immigration Appeals ("BIA") affirming without opinion an order of Immigration Judge ("IJ") William Van Wyke denying his application for asylum, withholding of removal pursuant to the INA, and relief under the Convention Against Torture ("CAT"),² and ordering petitioner removed to China. See In re Jian Hui Shao, No. A 79 759 247 (B.I.A. June 28, 2004), aff'g No. A 79 759 247 (Immig. Ct. N.Y. City Feb. 27, 2003).

Petitioner argued that he was entitled to asylum on the ground that he had fled China to escape its family planning program and is at risk of being forcibly sterilized if he returns to China because he and his wife have two children. The IJ, largely because he did not find Shao's testimony credible, denied all his applications for relief and ordered him removed to China. The BIA affirmed without opinion as prescribed by 8 C.F.R. § 1003.1(e)(4), see generally Kambolli v. Gonzales, 449 F.3d 454, 458-60 (2d Cir.2006) (describing BIA "streamlining" program), and this petition followed.

INTRODUCTION

In February 2002, Shao entered the United States at Honolulu International Airport carrying phony documents. After being served a Notice to Appear by the Immigration and Naturalization Service ("INS"),³ he conceded removability as charged and applied for asylum and other relief. In his airport interview, his asylum application, and his testimony before the IJ,⁴ Shao stated that as a non-agricultural worker, he was prohibited by Chinese law from having more than one child. After he and his wife had a daughter, his wife had an intrauterine device ("IUD") inserted to prevent another pregnancy. She was required to undergo regular examinations so that the government would know if she became pregnant. About two years after the IUD insertion, Shao's wife paid a private doctor to remove the device. A few months later she became pregnant and, at some time near that of the conception, she missed her government examination.

Shao stated that family planning authorities, desiring to abort his child, detained him and demanded to know his wife's whereabouts. Authorities beat him when he refused to reveal his wife's locations; she had fled to her mother's house and subsequently to a mountainous, rural area. With the aid of a friend who worked for the police, Shao escaped from detention and fled to the home of a relative in a city from where international transport could be arranged. He paid someone to procure forged travel documents, which he used to reach the United States via Japan.

Shao testified that his wife, who has since given birth to their second child, remains in hiding and that Shao's father helps her and the children survive by delivering food and medicine to her remote location. He said that if his wife were caught by police, she would likely be sterilized against her will, as would he if he returned to China. In addition, he said he could face criminal punishment for defying the family planning authorities and for fleeing China.

The IJ identified various inconsistencies in Shao's story and stated that certain elements of the story were implausible. Accordingly, he found that Shao's testimony was not sufficiently persuasive to meet his burden of proof for any of his desired forms of relief.⁵ Shao appealed to the BIA, which affirmed without opinion.

DISCUSSION

When the BIA affirms an IJ's decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision directly as the final agency determination. See, e.g., Li Hua Lin v. DOJ, 453 F.3d 99, 105 n. 5 (2d Cir.2006).

On appeal, Shao challenges the decisions of the IJ and the BIA on two grounds. First, he argues that the IJ erred in not crediting his testimony with regard to his alleged past persecution by the family planning authorities in China. Second, he argues that the IJ erred as a matter of law by not concluding that Shao has a credible fear of future persecution on the basis of his having fathered two children in violation of Chinese law. As we explain below, we reject Shao's challenge to the IJ's adverse credibility finding, and we remand the statutory interpretation question so that the BIA may decide in the first instance under what circumstances, if any, having more children than Chinese law allows, standing alone, may serve as a basis for a credible fear of future persecution as defined by 8 U.S.C. § 1101(a)(42).

I. The IJ's Adverse Credibility Finding Is Supported by Substantial Evidence

In review of an order of removal, the "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) ("[W]e defer to the factual findings of the BIA and the IJ if they are supported by substantial evidence."). Our review of an IJ's credibility finding is especially deferential. See id. at 74; Borovikova v. DOJ, 435 F.3d 151, 156 (2d Cir.2006).

The IJ identified a variety of inconsistencies in Shao's statements. For example, Shao wrote in his asylum application that his wife went into hiding sometime after the removal of her IUD but before she realized that she was pregnant.⁶ Before the IJ, however, Shao testified that "she already [knew] that she was pregnant and . . . that's why she . . . went into hiding." Shao also provided slightly different stories with regard to the hiding place of his wife. He testified that she is living alone in a "rural area" and that he did not "really know what exactly area that is" because he has never been there. In his airport interview, however, he stated that she was "hiding at the house of a friend." In addition, the IJ described Shao's demeanor as "unresponsive" during certain lines of questioning, finding that Shao's evasiveness indicated a desire not to be "pinned down about a particular answer." Certain aspects of Shao's story struck the IJ as being simply implausible. In particular, the IJ found the circumstances of Shao's alleged escape from custody difficult to believe.

Although we do not agree with every factual determination of the IJ and would not necessarily have reached the same finding about Shao's credibility, we cannot conclude that the IJ's determination is not supported by substantial evidence or that "any reasonable adjudicator would be compelled to conclude," 8 U.S.C. § 1252(b)(4)(B), that Shao testified truthfully and actually suffered past persecution in China. Accordingly, we decline to set aside the IJ's finding that Shao did not establish past persecution.

II. The BIA Should Decide in the First Instance Whether Having Two Children May, Without More, Provide a Well-Founded Fear of Future Persecution

Shao's second challenge presents a question of law, which we review de novo. At issue is whether one who fathers two children in violation of China's family planning policy, as Shao asserts he has done,⁷ may—on that basis alone, without any need for particularized evidence of past persecution or threats of future harm— qualify as a "refugee" as defined by the INA because he is "a person who has a well founded fear that he or she will be forced" by the Chinese government "to abort a pregnancy or to undergo involuntary sterilization." See 8 U.S.C. § 1101(a)(42) (defining "refugee").

"A well-founded fear [of persecution] has `both a subjective and an objective component.'" Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir.2005) (quoting Gomez v. INS, 947 F.2d 660, 663 (2d Cir.1991)). To demonstrate a well-founded fear, an alien must show that (1) "he subjectively fears persecution" and (2) "his fear is objectively reasonable." Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Determining whether an alien has the requisite subjective fear is necessarily a fact-intensive inquiry, and we give such agency findings great deference. When the facts supporting an alien's asylum claim are not disputed, however, whether he can possess the necessary objective fear is a question of law.

Reviewing an application in which an alien presented facts similar to Shao's, we expressed skepticism as to whether an alien could demonstrate the necessary objective reasonableness absent specific facts—beyond the general conditions in China—giving rise to his subjective fear. See Jian Xing Huang, 421 F.3d at 129 ("In the absence of solid support in the record for Huang's assertion that he will be subjected to forced sterilization, his fear is speculative at best."). Unlike Jian Xing Huang, in which the petitioner's two children were born in the United States, id. at 127, Shao's children were born in and live in China. To decide the case before us, we...