Yi Xian Chen v. Holder

• Decision Date: 18 January 2013
• Docket Number: No. 12–1623.,12–1623.
• Citation: 705 F.3d 624
• Parties: YI XIAN CHEN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

705 F.3d 624

YI XIAN CHEN, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–1623.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 2, 2012.

Decided Jan. 18, 2013.

Gregory G. Marotta (argued), Attorney, Law Office of Richard Tarzia, Belle Mead, NJ, for Petitioner.

OIL, Attorney, Siu P. Wong (argued), Trial Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before MANION, WILLIAMS, and HAMILTON, Circuit Judges.

MANION, Circuit Judge.

Yi Xian Chen illegally entered the United States in 2006. Shortly thereafter, his wife gave birth to the couple's second child in China. Chinese authorities then forcibly sterilized her. In the United States, Chen filed for asylum, withholding of removal, and relief under the Convention Against Torture, arguing that he suffered persecution when he learned that his wife had been forcibly sterilized. The Department of Homeland Security sought to remove Chen to China. While his removal proceedings were pending, Chen began practicing Falun Gong, and then supplemented his requests for relief from removal arguing that he feared future persecution because of his Falun Gong activities. Concluding that Chen had not suffered past persecution and lacked a well-founded fear of future persecution, an Immigration Judge denied Chen's requests for relief. The Board of Immigration Appeals affirmed, and Chen petitioned this court for review. Because the agency did not err, we deny Chen's petition for review.

I. Background

Chen and his wife, nationals of the People's Republic of China, had their first child in 2001. In 2003 and 2005, Chen unsuccessfully attempted to enter the United States to seek employment. In 2006, after his wife became pregnant again, Chen illegally entered the United States at the Mexican border. Some months later, Chen's wife gave birth to the couple's second child in China. Fearing persecution, Chen's wife hid at her uncle's home. Nevertheless, Chinese authorities discovered and forcibly sterilized her.

Subsequently, Chen filed a timely application for asylum. Thereafter, the Department of Homeland Security (“DHS”) initiated removal proceedings against Chen.

In 2009, while his removal proceedings were pending, Chen began practicing Falun Gong.¹ He then added his practice of Falun Gong as an additional basis for his requests for asylum, withholding of removal, and protection under the Convention Against Torture. Chen testified that he practices Falun Gong primarily in his home, but that sometimes he practices outside. Chen also testified that he reads materials and has passed out fliers related to Falun Gong. Chen testified that if he were sent back to China he would continue to practice Falun Gong at his home or at a farm adjacent to his house. During Chen's testimony, the Immigration Judge (“IJ”) asked him, “[W]hy couldn't you go over to China and practice Falun Gong inside your house?” Chen responded, “Because if I were to practice outside, I will be able to emit more energy.”

Based on news reports concerning Chinese authorities' treatment of Falun Gong practitioners, Chen expressed concern that he would be detained, beaten, and interrogated if he were returned to China. In support, Chen offered reports from the State Department indicating that the Chinese government harshly represses Falun Gong.² Falun Gong practitioners are specificallytargeted for arbitrary arrest, detention, and harassment. Detainees have “credibly reported that officials used electric shocks, beatings, shackles, and other forms of abuse.” The State reports say that, according to estimates, at least 6,000 Falun Gong practitioners have been imprisoned and almost 3,000 have died from torture since 1999. Additionally, over 100,000 Falun Gong practitioners have been subjected to “re-education” through labor camps during the same time period. Leaders appear to be treated most harshly. But even “the mere belief in the discipline (even without any public manifestation of its tenets) has been sufficient grounds for practitioners to receive punishments ranging from loss of employment to imprisonment.” We have had occasion to discuss some of these reports previously. See Shan Zhu Qiu v. Holder, 611 F.3d 403, 407–08 (7th Cir.2010). We observed that, while the reports indicate that most practitioners of Falun Gong are punished administratively, the reports also reveal that such punishment can be quite harsh and may amount to persecution. ³Id.

The IJ issued an oral decision concluding that Chen could not establish past persecution or a well-founded fear of future persecution merely based on his wife's forced sterilization. The IJ also concluded that Chen failed to carry his burden of establishing a well-founded fear of future persecution based on his practice of Falun Gong. The IJ reasoned that Chen had not proved a reasonable possibility of mistreatment because he provided no explanation for why his practice would likely come to the attention of Chinese authorities. The IJ also denied Chen's requests for withholding of removal and protection under the Convention Against Torture. Although Chen did not request it, the IJ granted voluntary departure.

Chen appealed to the Board of Immigration Appeals.⁴ While his appeal was pending, Chen moved to remand on the basis of new evidence. Specifically, Chen offered undated photographs of himself at what he claimed to be a Falun Gong rally and a letter, purportedly from his wife, stating that Chinese authorities were aware of his Falun Gong activities in the United States and would imprison him if he returned.

The Board affirmed the IJ's ruling. The Board observed that the background country evidence, that is, the State Department's reports, does show that Falun Gong is illegal in China and harshly suppressed by the Chinese government. Nevertheless, the Board concluded that Chen lacked a well-founded fear of future persecution because he “did not testify that he could not continue to [practice Falun Gong in his home] in China....” Thus, the Board found that Chen failed to “establish that he would engage in activities upon his return to China that would attract the attention of the authorities, and that could result in harm rising to the level of persecution....”

Additionally, the Board denied Chen's motion to remand because it thought that the new evidence was unreliable. The Board reasoned that the photographs were undated and, further, that Chen did not provide a foundation for them in his supporting affidavit. The Board also found that the letter from Chen's wife was unsworn and uncorroborated, self-serving inasmuch as the record indicated that Chen's wife harbored a desire to come to the United States, and from an interested party who was not subject to cross-examination. The Board did remand Chen's removal proceedings, however, but did so solely to allow the IJ to provide Chen with advisory statements that must accompany a grant of voluntary removal.

Chen then sought review by this court. While this appeal was pending, the IJ held a hearing on the remand order. Chen did not request voluntary departure, and the IJ reinstated the order of removal. That order has not been appealed.

II. Discussion

Where, as here, the Board relies on the findings of the IJ but adds its own analysis, we review the IJ's decision as supplemented by the Board's additional reasoning. Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir.2010). Legal conclusions are reviewed de novo, whereas factual findings are only reviewed for substantial evidence. Chen v. Holder, 604 F.3d 324, 330 (7th Cir.2010). Under the latter standard, we will only reverse if the evidence compels a contrary result; we will not overturn the agency's findings merely because we might have decided the case differently. Id.; see also Bueso–Avila v. Holder, 663 F.3d 934, 937 (7th Cir.2011) (observing that reversal is warranted only if the evidence is “ ‘so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’ ” (quoting I.N.S. v. Elias–Zacarias, 502 U.S. 478, 483–84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992))).

Chen advances two alternative challenges to the agency's denial of his requests for asylum and withholding of removal. Specifically, Chen contends that the agency erred in ruling that he could not establish past persecution based on his grief over his wife's sterilization and the couple's inability to have future biological children. Alternatively, Chen argues that the agency erred in holding that he could not establish a well-founded fear of future persecution because of his practice of Falun Gong. In addition, Chen contends that the Board abused its discretion when it denied his motion to remand for consideration of new evidence related to his practice of Falun Gong.

A. Asylum and Withholding of Removal

The legal principles controlling Chen's request for asylum are well-established. “The Attorney General has discretion to grant an alien asylum under the Immigration and Nationality Act if the alien qualifies as a ‘refugee.’ ” Chen, 604 F.3d at 330 (quoting 8 U.S.C. § 1158(b)(1)). “A refugee is a person who is unwilling or unable to return to his native country ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Id. (quoting 8 U.S.C. § 1101(a)(42)(A)). If Chen establishes that he suffered past persecution for a protected reason, a presumption arises that he also has a well-founded fear of future persecution for the same reason. 8 C.F.R. § 208.13(b)(1).

If Chen cannot establish past persecution or if his fear of future persecution is unrelated to any past persecution, he bears the burden of establishing that his fear of future persecution is well-founded. Id. at (a), (b)(1), (b)(2). This requires Chen to demonstrate “that his fear of persecution is both...