Yi Ni v. Holder

Decision Date13 July 2010
Docket NumberNo. 09-1584.,09-1584.
Citation613 F.3d 415
PartiesYI NI, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit




ARGUED: Gang Zhou, New York, New York, for Petitioner. Daniel Eric Goldman, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Brianne Whelan Cohen, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before SHEDD, DUNCAN and AGEE, Circuit Judges.

Denied in part and dismissed in part by published opinion. Judge DUNCAN wrote the opinion, in which Judge SHEDD and Judge AGEE concurred.


DUNCAN, Circuit Judge:

This case arises from a petition for review of the Board of Immigration Appeals' (the “BIA”) denial of Petitioner Yi Ni's application for withholding of removal pursuant to section 241(b)(3) of the Immigration and Naturalization Act (the “INA”). We find that the BIA's decision is legally sound and supported by substantial evidence. We further find that Ni has procedurally forfeited his request for a remand to present additional evidence. We therefore deny the petition in part and dismiss it in part.


Ni, a citizen of the People's Republic of China, filed an application for asylum and withholding of removal with the Department of Homeland Security on April 29, 2002. 1 Ni's application asserted that he was eligible for relief because he had a well-founded fear of future persecution in China under that country's “one-child” policy. His claim was based on section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the “IIRIRA”) (codified at 8 U.S.C. § 1101(a)(42)). 2 According to the BIA's interpretation at the time, section 601 allowed an applicant to establish eligibility for asylum and withholding based on past persecution if the applicant could show that his wife had been forced by the government to have an abortion. See Matter of C-Y-Z-, 21 I. & N. Dec. 915, 918 (B.I.A.1997) (en banc); Matter of S-L-L-, 24 I. & N. Dec. 1, 4 (B.I.A.2006) (en banc).

Ni's application alleged that, after marrying Ni Hong Mei in January 1992, he fathered a son with her in 1993. Approximately two months after the birth of the couple's son, Mei was forced to have an intrauterine contraceptive device (an “IUD”) inserted pursuant to the population control policies of the Fuzhou municipality, the area where the couple resided. Those policies prohibited rural couples from having more than one child and required them to follow certain contraceptive measures. In May 2000, during a government-required “IUD checkup,” Mei was diagnosed as pregnant. Ni asserts that the pregnancy occurred “without [his wife's] knowledge” due to the dislodging of her IUD. J.A. 604. According to Ni, because the pregnancy was the couple's second, the clinic staff subjected Mei to an involuntary abortion in accordance with the local policies.

Ni asserted that following that incident, he and his wife became depressed because they wished to have more children but were “too afraid to conceive out of plan.” J.A. 604. According to Ni, he and his wife “would never have the chance to have more children” and he therefore “hated the family planning policy.” Id. Ni and Mei “decided that [they] should leave China” and, shortly thereafter, Ni “took an opportunity” and left the country. Id. Mei remained in China.

On June 21, 2005, Ni appeared for a merits hearing before an Immigration Judge (an “IJ”) in Baltimore, Maryland. Upon conclusion of Ni's testimony, the IJ rendered an oral decision denying Ni's application. The IJ concluded that Ni's asylum application was time-barred because he had failed to establish by clear and convincing evidence that he filed the application within one year of his arrival in the United States. The IJ also denied Ni's withholding of removal application, holding that “there [was] no clear probability that the respondent would be the victim of future persecution in China on account of his political opinion.” J.A. 182. Although she did not directly address the basis for her decision, the IJ appeared to rely largely on an adverse credibility finding regarding the alleged forced abortion. She focused on the fact that Mei's medical examination booklet, which Ni submitted in support of his application, did not make any mention of an abortion taking place in 2000.

Ni appealed the decision to the BIA. On June 25, 2007, the BIA issued an opinion affirming the IJ's decision in part and remanding in part. The BIA affirmed the IJ's conclusion that Ni's asylum application was time-barred. 3 However, the BIA remanded the matter “for further analysis of the respondent's claim for withholding of removal,” holding as follows:

The Immigration Judge did not make an explicit finding with regard to the respondent's credibility and provided little analysis of the merits of his claim that his wife was subjected to a forcible abortion of her second pregnancy in May 2000. Rather the Immigration Judge appears to have based her decision to deny relief solely on the fact that the gynecological examination booklet submitted in support of the respondent's claim does not contain any reference to the alleged abortion in May 2000. We consider the Immigration Judge's decision in this case to be insufficient for purposes of appellate review and conclude that remand for further fact-finding and legal analysis is appropriate.

J.A. 149 (citations omitted).

On remand, the IJ expressly made an adverse credibility finding with regard to Ni's claim that his wife was forced to have an abortion. This finding was based on a “material discrepancy between his oral account of what transpired and documentation which he has submitted in support of his clam.” J.A. 65. The IJ again found especially relevant the fact that Mei's medical booklet did not make any reference to an abortion. She further noted that Ni provided no explanation of why such a reference would have been omitted. The IJ also highlighted that Ni had failed to present any corroborative evidence for his claim, in spite of the fact that he had three years in which to do so.

Ni once again appealed the decision to the BIA. On April 29, 2009, the BIA dismissed Ni's appeal. In affirming the IJ's decision, the BIA held:

Assuming that the Immigration Judge's adverse credibility determination did not undermine [Ni's] application for withholding of removal, her denial of his application for such relief was not in error because his claim is primarily based on his wife's alleged forced abortion.

J.A. 4. The BIA concluded that, as held by the Attorney General in the 2008 decision in MATTER OF J-S-, 24 I. & N. Dec. 520 (A.G.2008), which overturned prior BIA precedent, 4 under section 601 of the IIRIRA “a claim of persecution based on a forced abortion ... can only be brought by the individual who has undergone the procedure.” J.A. 4. The BIA also found that Ni had not shown any other grounds for eligibility. It noted that Mei's forced insertion of an IUD did not rise to the level of persecution and that, in any event, there was no nexus between Ni's alleged resistance to the one-child policy and the insertion of the IUD. Finally, the BIA also held that Ni's claim that he would face persecution when he had more children in the future was too speculative. The BIA therefore affirmed the IJ's denial of Ni's claims. Ni petitioned this court for review of the BIA's decision.


Ni challenges only the BIA's denial of his withholding of removal claim. He presents three contentions. First, Ni argues that the BIA erred in relying on MATTER OF J-S- to deny his claim because that decision concerned persecution in the context of asylum rather than withholding of removal. Second, he asserts that, even if he was unable under MATTER OF J-S- to show past persecution based on his wife's forced abortion, his claim should nonetheless have been granted because he showed a clear probability of persecution on other grounds. Finally, Ni argues in the alternative that, because MATTER OF J-S- changed the legal standard applicable to his case, the matter should be remanded to the IJ so that he may have an opportunity to present additional evidence to support his claim in light of the new legal standard. We address each argument in turn.


In addressing Ni's first contention, we must consider whether his withholding of removal claim is foreclosed by the holding in MATTER OF J-S- that section 601 of the IIRIRA does not permit a husband to establish past persecution or fear of future persecution based on his wife's forced abortion. Because the Attorney General's holding in MATTER OF J-S- involves a question of statutory interpretation, we must first evaluate the validity of that interpretation, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and then determine whether it governs the present case.

We begin by exploring the relevant legal background. We then analyze the Attorney General's interpretation of section 601 under Chevron. Finally, we determine whether section 601 as interpreted applies to Ni's withholding of removal claim.


Withholding of removal is available under 8 U.S.C. § 1231(b)(3) “only to an alien who can demonstrate a ‘clear probability’ of persecution on account of his race, religion, nationality, membership in a social group, or political opinion.” Ngarurih v. Ashcroft, 371 F.3d 182, 189 n. 7 (4th Cir.2004). To establish a clear probability of persecution, the alien must prove that “it is more likely than not that her life or freedom would be threatened in the country of removal.” Gomis v. Holder, 571 F.3d 353, 359 (4th Cir.2009).

Ni's claim of persecution is based on his wife's forced abortion pursuant to China's...

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