Matter of M-F-W
| Decision Date | 06 October 2008 |
| Docket Number | Interim Decision No. 3625. |
| Citation | 24 I&N Dec. 633 |
| Parties | Matter of M-F-W- & L-G-, Respondents. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated March 1, 2002, an Immigration Judge found the respondents, a mother and son from China, removable and denied their applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). The Immigration Judge held that the lead respondent, upon whose experiences the applications for relief are based, failed to establish a well-founded fear of sterilization because the evidence supported the conclusion that she would likely only be fined for removing an intrauterine device ("IUD") after the birth of her first child and for having a second child here in the United States.
In a decision dated October 14, 2003, we affirmed the Immigration Judge's decision and dismissed the respondents' appeal. We also held that IUD insertion does not fall within the amended definition of the term "refugee" in section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), and agreed with the Immigration Judge that the respondent failed to establish a well-founded fear of sterilization or imprisonment if returned to China.1
On April 28, 2006, the United States Court of Appeals for the Second Circuit signed a Stipulation and Order of Settlement and Dismissal remanding the record for our reconsideration. The order requires us to explain why an alien who is subject to the forcible insertion of an IUD, and any attendant pain or discomfort, does not fall within the definition of a refugee. It also asks that we specifically address the respondent's claim that she fears persecution if returned to China based on her second pregnancy in light of Huang v. U.S. INS, 421 F.3d 125 (2d Cir. 2005).
Following the Second Circuit's order, the respondents submitted a brief, which includes a motion to remand. The Department of Homeland Security ("DHS") opposes the motion. Upon consideration of the issues the court has directed us to address and those presented in the motion, we will dismiss the respondents' appeal again and deny their motion to remand. The respondents' request for oral argument is denied. 8 C.F.R. § 1003.1(e)(7) (2008).
The respondent has indicated that she was married in China in May 1989.2 After the birth of her first child, a son, on July 23, 1990, Chinese officials took the respondent to the hospital where she had an IUD inserted on April 24, 1991.3 She experienced discomfort, including back pain and an irregular menstrual cycle, and she asked Chinese officials if she could have the device removed. She was told that her problems did not warrant removal of the IUD.
In 1992, the respondent hired a private doctor to remove the IUD. She did not attend several required gynecological checkups because she feared the removal would be detected. In January 1993, officials came to the respondent's home and took her to have a gynecological examination. They discovered that the IUD was missing and detained her for 3 days because she refused to have another IUD inserted. The respondent stated that she felt harassed and she eventually agreed to a second IUD, but she was only released when her mother-in-law paid a bribe.
Five years later, in January 1998, the respondent attempted to leave China but was caught in Hong Kong, detained for 4 months, and sent back. She was fined 20,000 RMB for leaving China illegally and for missing required gynecological exams. She eventually left China and arrived in the United States in January 2000. The record contains evidence that she had the IUD removed in 2000 by a doctor in New York. She gave birth to a second child in 2002. The respondent sought relief from removal based on her persecution claim because she fears sterilization and incarceration for violating China's family planning policy.
Section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689 ("IIRIRA"), which is codified at section 101(a)(42) of the Act, added the following language to the definition of a "refugee":
For purposes of determinations under this Act, 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.
This amendment to the Act made clear that aliens who allege they have been forced to abort a pregnancy or who have been forcibly sterilized pursuant to China's family planning policy, or those who fear being subjected to such procedures, can establish eligibility for asylum. See Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 307 (2d Cir. 2007) (en banc). As the Attorney General noted in Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008),
Section 601(a) thus created four new and specific classes of refugees:
1. "person[s] who ha[ve] been forced to abort a pregnancy";
2. "person[s] who ha[ve] been forced . . . to undergo involuntary sterilization";
3. "person[s] . . . who ha[ve] been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program"; and
4. "person[s] who ha[ve] . . . a well founded fear that [they] will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance."
Id. at 527 (). The first and second categories of aliens are "deemed" by section 601(a) of the IIRIRA to be refugees; that is, "their political opinion exists de jure rather than as a matter of fact on which the applicant bears the burden of proof." Shi Liang Lin v. U.S. Dep't of Justice, supra, at 307; see also Matter of J-S-, supra, at 527-28. If the respondent can establish that she fits within either of the first two categories, she need not show why the persecution was perpetrated.
We find that neither category applies to the respondent. It is clear that having to use an IUD does not amount to being forced to abort a pregnancy. The same can ultimately be concluded about the second category involving forced sterilization, particularly when analyzed pursuant to recent case law interpreting section 601(a) of the IIRIRA. Shi Liang Lin v. U.S. Dep't of Justice, supra; Matter of J-S-, supra.4 One could argue that the perpetual use of an IUD, or any other birth control method, throughout a woman's child bearing years until menopause effectively results in a form of sterilization. However, the verb to "sterilize" is defined as "to make sterile," which means "[i]ncapable of sexual reproduction." Webster's II New Riverside University Dictionary 1137 (1994). This definition makes clear the permanency of the sterilization procedure—i.e., that it leaves one incapable of having children—and leads us to reject the argument that IUD use should be treated as the equivalent of sterilization.
It is apparent from the legislative history prior to enactment of section 601(a) of the IIRIRA that Congress was aware that IUDs are used in China, and around the world, for that matter, as a method of birth control. See Coercive Population Control in China: Hearings Before the Subcomm. on Int'l Operations and Human Rights of the House Comm. on Int'l Relations, 104th Cong. 8, 18 (1995) (hereinafter Hearings). Unlike sterilization, it is a temporary measure meant to provide for birth planning and not to remove all possibility of future birth opportunities. Congress was clearly aware of China's use of IUDs as a birth control method separate from sterilization because both terms were used in describing China's family planning policy. Id. at 8. It is therefore our understanding that when referring to sterilization as a per se category of persecution that would render an alien eligible for asylum, Congress did not mean to include "lesser," i.e., less permanent, forms of birth control, such as IUD insertion. Since the respondent has not suffered either a forced abortion or forced sterilization, and she was not threatened with these procedures, she must show that she was or will be persecuted for "other resistance" to China's family planning policy, or that she was persecuted on account of...
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