Mei Fun Wong v. Holder
633 F.3d 64
| 2d Cir. | 2011Background
- Wong and her son Ling Go, Chinese nationals, petition for review of a BIA decision upholding an IJ removal order denying asylum, withholding of removal, and CAT relief.
- The BIA held involuntary insertion of an IUD does not categorically constitute persecution, and that additional aggravating circumstances must be shown for other resistance to China’s population control policy.
- Wong’s asylum claim centered on past persecution from involuntary IUD insertion and fear of future persecution in China; her nexus argument tied harms to resistance to population control.
- The court previously remanded for the BIA to articulate its standard for persecution and the effect of IUD-related conduct, leading to the 2008 precedential In re M-F-W- decision the BIA relied on.
- This panel deferred to the BIA’s interpretation under Chevron deference but found the BIA failed to adequately explain aggravating-circumstances and nexus standards, prompting remand.
- The Second Circuit vacates the removal order and remands for the BIA to clarify its aggravating-circumstances standard, nexus analysis, and reconcile with Jiang, while dismissing withholding/CAT review for lack of exhaustion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does involuntary IUD insertion constitute persecution per se? | Wong argues IUD insertion is persecution. | Holder/agency rejects per se treatment, requiring aggravating factors. | No per se persecution; aggravating circumstances required. |
| Is aggravating circumstances requirement reasonable for ‘other resistance’ claims? | Aggravating-circumstances standard should not be needed; intrusion alone suffices. | Statutory amendments limit per se protection to abortion/sterilization; aggravating factors needed for IUD cases. | Aggravating-circumstances requirement reasonable; need for clarification on its application. |
| What is the proper nexus between harm and resistance to population control policy? | Harm tied to resistance can satisfy nexus. | Harm must be tied to policy resistance; routine enforcement not enough. | Remanded to articulate nexus standard and its application to Wong. |
| Did the BIA adequately explain its aggravating-circumstances and nexus analysis in Wong’s case? | BIA’s explanation insufficient for meaningful review. | BIA’s reasoning is reasonable under Chevron and the record. | Remand for clearer articulation of standards and application. |
Key Cases Cited
- Xia Fan Huang v. Holder, 591 F.3d 124 (2d Cir. 2010) (affirms Chevron deference to BIA on IUD persecution issue)
- In re M-F-W-, 24 I. & N. Dec. 633, 24 I. & N. Dec. 633 (BIA 2008) (BIA: IUD insertion requires aggravating circumstances to be persecutory)
- Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 305 (2d Cir. 2007) (statutory amendment creating categorical refugee for abortion/sterilization)
- Chao Qun Jiang v. Bureau of Citizenship & Immig. Servs., 520 F.3d 132 (2d Cir. 2008) (discusses persecution and nexus in IUD context; remand for consistency)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (deference to agency interpretations in immigration matters)