741 F.3d 211
1st Cir.2013Background
- Wu Shou Wu, a Chinese national, married with a wife who remained in China; after their first child, Wu’s wife underwent an involuntary IUD, and the couple later sought to remove it.
- Wu and his wife allegedly faced repeated coercive population control actions, including a forced abortion and forcible sterilization of his wife, plus a 5000 renminbi fine.
- Wu remained in China for nine years after these events, then illegally departed and entered the United States, where he was charged with removability.
- He sought asylum, withholding of removal, and protection under CAT, arguing persecution or fear of future persecution on a protected ground related to population control resistance.
- The IJ and later the BIA denied relief, with the BIA applying REAL ID Act standards that Wu challenges; credibility was assumed by the BIA, but relief was denied on merits.
- The parties stipulated to vacate the BIA decision and remand for a new hearing, which occurred in Boston; the IJ discredited Wu but addressed merits as if credible, finding no past persecution or well-founded fear, and no CAT torture likelihood.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| REAL ID Act applicability | Wu contends REAL ID Act does not apply. | Government maintains Act applies to post-2005 filings, but acknowledges Wu’s filing predates it. | REAL ID Act does not apply; harmless error analysis applicable. |
| Past persecution | Wu argues he was persecuted for resisting coercive population control. | BIA found Wu failed to show past persecution beyond deprivation of the right to bear children. | Record does not compel a finding of past persecution. |
| Well-founded fear of future persecution | Wu asserts well-founded fear due to resistance and/or illegal departure. | BIA concluded no well-founded fear for either basis and the record supports denial. | Wu lacks a well-founded fear of future persecution. |
Key Cases Cited
- Mediouni v. I.N.S., 314 F.3d 24 (1st Cir. 2002) (more stringent withholding standard; asymmetry with asylum standard)
- Lin v. Mukasey, 521 F.3d 22 (1st Cir. 2008) (pre-REAL ID Act credibility standards; inconsistencies not all material)
- Pan v. Gonzales, 445 F.3d 60 (1st Cir. 2006) (well-founded fear analysis; remained after resistance)
- Vanchurina v. Holder, 619 F.3d 95 (1st Cir. 2010) (economic disadvantage must be severe and deliberate to constitute persecution)
- Jaya v. Gonzales, 169 F. App'x 596 (1st Cir. 2005) (harmless error when credibility assessment does not affect outcome)
- Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010) (persecution factor; forced abortion/sterilization as one indicator among others)