Shao v. Mukasey

Citation546 F.3d 138
Decision Date10 October 2008
Docket NumberDocket No. 07-2689-ag.,Docket No. 07-3415-ag,(L).,Docket No. 07-2666-ag.,Docket No. 08-1091-ag(CON).
PartiesJian Hui SHAO, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent. Ji Wen Shi, Petitioner, v. Michael B. Mukasey, Attorney General of the United States, Respondent. Show Yung Guo,<SMALL><SUP>1</SUP></SMALL> Petitioner, v. Michael B. Mukasey, Attorney General of the United States, Respondent.<SMALL><SUP>2</SUP></SMALL>
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Susan Houser, Senior Litigation Counsel; and Mary Jane Candaux, Michelle G. Latour, and Carl H. McIntyre, Assistant Directors, on behalf of Jeffrey S. Buchholtz and Gregory G. Katsas, Acting Assistant Attorneys General, on the brief), Office of Immigration Litigation, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Before: RAGGI, WESLEY, and LIVINGSTON, Circuit Judges.

REENA RAGGI, Circuit Judge:

In response to reports that China was enforcing its "one family, one child" population control policy through forced abortions and forced sterilizations, in 1996, Congress expressly extended the Immigration and Nationality Act's definition of a political "refugee" to include persons who had "been forced to abort a pregnancy or to undergo involuntary sterilization, or who [had] been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program," as well as persons who have "a well founded fear" that they "will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance." 8 U.S.C. § 1101(a)(42); see Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 91-92 (2d Cir.2001) (discussing background to change in law). These three petitions involve Chinese nationals who have not claimed or credibly demonstrated that they had personally experienced or been threatened with any such persecution. Nevertheless, they assert that their fear of such future persecution is well founded because they have fathered or given birth to more children than are authorized under Chinese population control policies. We address these petitions in a single opinion because similar well-founded fear claims are now pending in hundreds of petitions for review to this court, and these three cases present us with the precedential responses from the Board of Immigration Appeals ("BIA") to the common question raised in the different contexts of these cases: under what circumstances can a Chinese national rely on the birth of more than one child to demonstrate the well-founded fear of persecution necessary to qualify for asylum as a "refugee"? See In re J-H-S-, 24 I. & N. Dec. 196 (B.I.A. 2007) (addressing issue on direct review with respect to children born in China); In re J-W-S-, 24 I. & N. Dec. 185 (B.I.A. 2007) (addressing issue on direct review with respect to children born in United States); In re S-Y-G-, 24 I. & N. Dec. 247 (B.I.A.2007) (addressing issue on motion to reopen with respect to one child born in China and second child born in United States).

The BIA has determined that the question admits no categorical answer, largely because of local variations in Chinese officials' understanding and enforcement of their nation's birth control policies. Thus, the Board has declined to construe the statutory term "refugee" to exclude or to include all Chinese nationals who have fathered or given birth to more than one child. Rather, it has determined that a case-by-case review is necessary to identify which Chinese nationals with two or more children demonstrate a fear of future persecution that is both subjectively genuine and objectively reasonable. See Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir.2005) (noting subjective and objective components of well-founded fear claim); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004) (same). No party before the court on these petitions challenges this flexible construction of the statute.

Instead, each petitioner faults the BIA's analysis of the evidence in his or her particular case, an analysis generally informed by a three-part inquiry: has petitioner (1) identified the government policy implicated by the births at issue, (2) established that government officials would view the births as a violation of the policy, and (3) demonstrated a reasonable possibility that government officials would enforce the policy against petitioner through means constituting persecution? Because we identify no legal error in this evidentiary framework and because substantial evidence supports the BIA's findings that each of the petitioners failed to demonstrate that his or her stated fears of persecution on return to China were objectively reasonable, we deny these petitions for review.3

I. Background

Although the three petitions before us present a common issue, they do so in different factual and procedural contexts that we outline briefly at the outset: (1) in Jian Hui Shao's case, the BIA reviewed (a) on direct appeal (b) an order of removal (c) against a male petitioner generally found not credible except for the fact that (d) he had fathered two children in China before fleeing to the United States; (2) in Ji Wen Shi's case, the agency reviewed (a) on direct appeal (b) a grant of relief from removal (c) to a credible male applicant (d) who had married and fathered two children in the United States after fleeing China; and (3) in Show Yung Guo's case, the agency considered (a) a motion to reopen (b) by a woman previously found not credible except for the fact that (c) she had given birth to two children, one in China and one in the United States, but who (d) now offered various documents from family planning authorities in her native province and town to support a claim of changed country conditions giving rise to a fear of future persecution based simply on the number of her children. The BIA's initial rulings denying relief in each case prompted petitions for review in this court, each of which resulted in remands, in two cases by court order, see Jian Hui Shao v. BIA, 465 F.3d 497 (2d Cir.2006); Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and in the case of Ji Wen Shi by stipulation of the parties. Preliminary to discussing the challenged precedential decisions prompted by these remands, we briefly recount the events leading to those decisions.

A. Proceedings Leading to Precedential Decisions
1. Jian Hui Shao
a. Initial Agency Proceedings

In February 2002, Jian Hui Shao, a native of Fuzhou City in China's Fujian Province, attempted to enter the United States unlawfully. In subsequent removal proceedings, Jian Hui Shao conceded removability but applied for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., and for relief under the Convention Against Torture ("CAT"). Jian Hui Shao asserted that he feared forcible sterilization in China because he had fathered two daughters in that country and Chinese law prohibited him, a non-agricultural worker, from having more than one child. To demonstrate the reasonableness of his fear—and to explain his abandonment of his wife in China only weeks after discovering her second pregnancy—Jian Hui Shao testified that he had been beaten and jailed by Chinese officials after his wife missed a gynecological examination intended to ensure her compliance with family planning policies and he refused to disclose her whereabouts.

Identifying various inconsistencies and implausibilities in Jian Hui Shao's account, the immigration judge ("IJ") found him not credible in all respects but one: the fact that he now had two children in China. See In re Jian Hui Shao, No. A 79 759 247, at 14-15 (Immig. Ct. N.Y. City Feb. 27, 2003). The IJ denied petitioner relief from removal, a determination summarily upheld by the BIA on initial direct review. See In re Jian Hui Shao, No. A 79 759 247 (B.I.A. June 28, 2004).

b. Proceedings in this Court

On Jian Hui Shao's initial petition for review by this court, we concluded that the agency's adverse credibility determination was supported by substantial evidence. See Jian Hui Shao v. BIA, 465 F.3d at 500-01. Nevertheless, we remanded the case for further agency consideration of the question "under what circumstances, if any, having two children in China is sufficient grounds for a well-founded fear of future persecution." Id. at 501.

In so ruling, we noted that, in Jian Xing Huang v. INS, this court had "expressed skepticism" as to whether an alien with two children born in the United States could demonstrate a well-founded fear of forced sterilization on removal to China "absent specific facts—beyond the general conditions in China—giving rise to his subjective fear." Jian Hui Shao v. BIA, 465 F.3d at 501 (citing Jian Xing Huang v. INS, 421 F.3d at 129). Nevertheless, because Jian Hui Shao's children "were born in and live in China," we considered the possibility that such circumstances might warrant a different assessment of the objective reasonableness of petitioner's professed fear. Id. (emphasis added). Noting that the INA's definition of a "refugee" did not clearly resolve the issue and that the BIA—the agency charged with the INA's enforcement and thus entitled to deference with regard to the statute's interpretation—had not previously considered the point, we decided to remand. See id. at 501-03 (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184,...

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