M.S.C. v. Garland

• Docket Number: 21-1496,22-1602
• Decision Date: 24 October 2023
• Parties: M.S.C.; L.Z., Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

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M.S.C.; L.Z., Petitioners, MERRICK B. GARLAND, Attorney General, Respondent.

Nos. 21-1496, 22-1602

United States Court of Appeals, First Circuit

October 24, 2023

PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Sara Yang for petitioners in No. 21-1496. Aleksander Boleslaw Milch and The Kasen Law Firm, PLLC on brief for petitioners in No. 21-1496.

Sherease Pratt, Senior Litigation Counsel, United States Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Anthony P Nicastro, Office of Immigration Litigation, Civil Division and Sheri R. Glaser, Office of Immigration Litigation, Civil Division, were on brief, for respondent.

Sara Yang, Yang & Sacchetti, P.C., Gilles Bissonnette, SangYeob Kim, American Civil Liberties Union of New Hampshire, and New Hampshire Immigrants' Rights Project on brief for petitioners in No. 22-1602.

Sherease Pratt, Senior Litigation Counsel, United States Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Anthony P. Nicastro, Office of Immigration Litigation, Civil Division, and Sheri R. Glaser, Office of Immigration Litigation, Civil Division, were on brief, for respondent.

Before Lipez, Howard, and Thompson, Circuit Judges.

THOMPSON, CIRCUIT JUDGE

In this consolidated appeal, married couple M.S.C. and L.Z. ("the petitioners") seek judicial review of two Board of Immigration Appeals ("BIA") decisions: One affirming an Immigration Judge's ("IJ") denial of their application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") and the other denying their motion to reopen their proceedings. The basis for the petitioners' application for relief from removal is political persecution by Chinese officials seeking to enforce China's Family Planning Policy (the so-called one child policy in effect when the petitioners first entered the U.S.).^[1] For the reasons we explain below, we deny both petitions.

BACKGROUND^[2]

In March 2014, the petitioners, Chinese nationals, entered the U.S. on B2 tourist visas. Five months later, M.S.C. filed an application for asylum (including her husband as a rider on her application) on the basis of China's politics, claiming she had been subject to a forced abortion and sterilization procedure in May 2013 after she became accidentally pregnant with her second child.^[3]

The petitioners received Notices to Appear from the Department of Homeland Security in January 2015. On the day of their initial hearing (in September 2016), represented by counsel, M.S.C. conceded removability and sought relief from removal in the form of asylum, withholding of removal, and CAT protection (again, with her husband riding on her application).^[4] The IJ designated China as the country of removal.

At the merits hearing in October 2018, both petitioners -- represented by the same counsel and assisted by a Mandarin language interpreter -- testified.^[5] M.S.C. stated she graduated from college in China, married L.Z. in 2010, and gave birth to a daughter in 2011.

In recounting the odyssey that brought the petitioners to America, M.S.C. explained to the IJ that, in early May 2013, she visited a doctor because, after returning from a vacation in Japan, she "felt discomfort a lot." Tests revealed she was just over one month into pregnancy. M.S.C. knew the government was forcing abortions for those in violation of the country's one child policy enforced at that time and she was scared because she wanted to give birth to this second baby. She asked her doctor to delay reporting the pregnancy to the authorities as China law required. When M.S.C.'s supervisor at work approached her to say M.S.C. had to have an abortion because of the country's policy and the effect her second pregnancy would have on the company, M.S.C. knew the doctor had not obliged her request.

On May 13, family planning officials showed up at her work, held her arms and "dragged" her outside and into a white van. At this point in M.S.C.'s testimony, the hearing transcript indicates she offhandedly remarked: "I'm sorry. I'm emotional. Sorry." The IJ responded, "Okay. Do you need a minute or two to gather your thoughts?" to which M.S.C. replied, "I'm okay" and proceeded with describing the forced abortion procedure. Continuing with her recounting of events, she said the seizing officials took her to Beicheng Hospital. She "struggl[ed] . . . with all [her] might," but "[t]hey held [her] down on the bed and took [her] pants off . . . and tie[d her] hands and feet on the bed." M.S.C. described the procedure to the IJ, which she remembered lasting about an hour:

So, there was a big light above me, and that was turned on. And so, there was a mask put over me. I remember I was not really that conscious. But I still felt very cold. And I felt there was some kind of instrument that was stuck into -- inserted in my vagina to open it. And then I heard some of machines like mmm, mmm, that kind of sound. And I felt that something very cold enter into my private parts.

And I felt there was something that was moving out. And I felt that especially on my lower abdomen. The lower abdomen and on the two side that something is hanging down. I felt as though I was going to have a bowel movement. So, at the time I couldn't even tell that whether it was my tears or my sweat. And I felt that my body is being torn apart.

And it was -- there was a little while after that, and I felt there was another substance or object that entered my body. It felt as though that it was being dragged outside, and also a scraping. It was scraping to bring it outside. Bring it out. Then a little while passed, and I -- this -- the sound of the machine was turned off. And my vagina then was dilated, and it was relaxed. At that time, they removed my mask. And I was conscious for a few minutes, because that light was really too bright. Very, very bright. And I saw somebody in the -- at the basin and somebody white in color, and something dark red inside the basin. Everything I felt. That's the end.

In addition to undergoing a forced abortion procedure, "an [intrauterine device] IUD was inserted" into M.S.C. without her consent. The nurse told M.S.C., "You will not get pregnant again, as you will not make another mistake." According to M.S.C., the IUD fell out a month later, but she told no one except her husband.

In the weeks following the procedure, M.S.C. sustained bleeding, inflammation, and a lesion on her cervix for which she sought treatment. Nightmares plagued M.S.C. "almost every night for quite some time" and she became unable to look after her daughter, so she sent her child to live with her parents. When M.S.C. and L.Z. traveled to the U.S., their daughter remained in China living with M.S.C.'s father. M.S.C. testified that "a lot of kids in China . . . are raised up by their grandparents" because their lives after retirement "are a little boring" and many had only one child but wanted to have more.

Since arriving in the U.S. in March 2014, M.S.C. worked "in a biology lab . . . on DNA" and tried (unsuccessfully) to have another child. M.S.C. did become pregnant in 2015, but it turned out to be an ectopic pregnancy that necessitated termination.^[6]M.S.C. also testified about consulting with an obstetrics and gynecology ("OB/GYN") doctor about her fertility options and she was told that she may be too old (at around 40 years old) to try in vitro fertilization.

At their hearing, the IJ questioned M.S.C. and L.Z. about whether they told M.S.C.'s medical providers in the U.S. about the forced abortion. Each petitioner answered in the negative. When asked why she hadn't disclosed this information, part of M.S.C.'s answer was clear (because it "was an experience [she] really [didn't] want to talk about"). But part of the answer was not so clear ("because my ignorance" and "she did ask me questions [about how many times I had been pregnant] . . . [s]o I did not answer questions like that"). There was no further probing from the IJ about what M.S.C. meant by her answer. L.Z., for his part, stated that he had not told the doctor about the forced abortion when he accompanied his wife to her appointments "because of our status at that time." When the IJ inquired whether they had told the doctor that M.S.C. had had an IUD, M.S.C. said they "mentioned" it "briefly" to the medical provider but then added, "[i]t doesn't mean that she write it down."

M.S.C. also testified that she does not want to return to China because she does not want the same procedure done to her again. At the time M.S.C. gave her testimony, her understanding of China's family allowance policy was that couples could have a second child only if both the husband and wife were only children, and M.S.C. has a sister.

M.S.C and L.Z. provided several documents in support of their application for relief from removal, including a medical certificate reflecting an abortion procedure performed in May 2013 and the placement of the IUD, a medical certificate dated one month later reflecting cervical erosion, letters from M.S.C.'s sister and friend describing the change in M.S.C.'s demeanor after the forced abortion, letters from L.Z.'s mother and co-worker describing the changes in his behavior and affect after the forced abortion, a State Department country conditions report from 2017, and two articles about forced abortion practices in China. At the IJ's request, M.S.C. showed the IJ and the government's attorney a document she brought with her to the hearing which she said was the original abortion medical certificate. The IJ described it on the record only as a "certificate taped to an eight and half by...