HUO QIANG CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
Docket No. 13-2030-ag.
United States Court of Appeals, Second Circuit.
Argued: Aug. 25, 2014. Decided: Dec. 5, 2014.
Plaintiffs argue that rather than vacating and remanding the portion of the judgment of the district court regarding Plaintiffs’ claims related to the testing and inspection work, we should decide the issue of damages ourselves and award a total of $13,086,761 in damages, with amounts for each class member calculated by updating their expert‘s damages report to reflect the additional amounts of interest required by New York law.1 Plaintiffs note that the settlement reached by the parties with regard to Plaintiffs’ other claims precludes Defendants from challenging the district court‘s decision denying Simplex‘s motion to strike the report of Plaintiffs’ expert, Dr. Crawford. Plaintiffs essentially argue that because their expert‘s report is admissible, there are no material issues of fact regarding damages. But while Defendants can no longer challenge the reliability of Dr. Crawford, they are still free to challenge his conclusions. And as the district court explained, Simplex has pointed out certain inconsistencies in Dr. Crawford‘s report and raised a question of fact regarding whether Dr. Crawford accurately distinguished hours spent on testing and inspection work from other labor hours. Accordingly, material issues of fact remain with regard to the issue of damages and judgment is not proper at this stage.
For the foregoing reasons, the June 21, 2011 memorandum and order of the district court is hereby VACATED in part and REMANDED.
Yedidya Cohen, Trial Attorney (Stuart F. Delery, Assistant Attorney General, David V. Bernal, Assistant Director, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: RAGGI, CHIN, and CARNEY, Circuit Judges.
REENA RAGGI, Circuit Judge:
Since his 2001 arrival in the United States more than thirteen years ago, Chi
For reasons discussed herein, we hold that while a severe fine can amount to economic persecution, an alien claiming to have suffered past persecution must show more than the imposition of such a fine; he must show that payment of the fine (or efforts to pay or collect it) actually deprived him of the basic necessities of life or reduced him to an impoverished existence. See In re T-Z-, 24 I. & N. Dec. 163, 171, 174 (B.I.A. 2007). At the same time, however, we clarify that an unpaid fine and sanctions imposed after an alien is already in the United States for nonpayment of a fine may support a well founded fear of future persecution if the alien were returned to his native country, particularly where the record indicates a likelihood that authorities would continue to demand payment of the fine and such payment would impoverish the alien or deprive him of the basic necessities of life.
Substantial evidence here supports the agency‘s finding that Chen failed to demonstrate that the imposition of a severe fine deprived him of the basic necessities of life or impoverished him before he left China. Accordingly, we deny review of the BIA‘s past persecution ruling. The agency erred, however, in concluding that no evidence existed of continuing demands for payment while Chen has been in the United States and in reaching other factual conclusions not supported by substantial evidence. We therefore grant review of the BIA‘s feared future persecution ruling. Accordingly, we vacate the BIA‘s order insofar as it denied Chen both asylum and withholding of removal based on such ruling, and we remand for further proceedings consistent with this opinion.
I. Background
A. Chen‘s Fines for Resisting China‘s Population Control Program
In China, Chen, who is almost illiterate, had worked as a farmer on a one-third acre plot of land leased to him (and to his father before him) by the government in a sharecropper arrangement. Chen realized approximately 1,000 Renminbi (“rmb“) per year from farming, which he used to support himself, his wife, and their three children. Chen sporadically supplemented these earnings by doing odd jobs in his village, for which he was generally paid 15 rmb a day.1
Ten days later, with the fine unpaid, government officials came to Chen‘s home in search of property that might be seized to satisfy the fine. Although they apparently found nothing worth taking, an argument ensued, which prompted Chen to flee his village to avoid retaliation.
For several years Chen hid in a neighboring village where he earned 1,500 rmb per year—more than he had earned farming—tending a community cow. Meanwhile, his wife continued to farm their assigned land.
B. Chen Illegally Enters the United States; Chinese Authorities Terminate His Farming Leasehold
In 2001, Chen decided to leave China, paying a smuggler $50,000 to help him enter the United States. Chen‘s friends and relatives loaned him the money necessary to pay the smuggling fee. Since 2001, Chen has resided in New York, earning $9,000 to $10,000 a year working in the construction and restaurant industries. By 2010, he had repaid his debt to friends and relatives. Also, since 2003, Chen has been the sole support for his wife and children in China. In that year, as punishment for Chen‘s failure to pay the outstanding fine, Chinese officials terminated his family‘s right to farm its assigned plot of land. Chen‘s wife has not worked since that time. Chen asserts that government officials nevertheless have continued coming to his family‘s home to seek payment of the fine.
C. Chen‘s Efforts To Secure Relief from Removal
1. Initial Agency Denial
Upon Chen‘s April 2001 arrival in the United States, immigration proceedings were initiated against him. From the outset, Chen conceded removability but requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT“) based on feared persecution for resistance to China‘s population control program. He supported his claimed fear by reference to his wife‘s sterilization, the imposition of a 23,000 rmb fine, and—after 2003—the revocation of his family‘s farming rights for failure to pay the fine.
On May 13, 2002, after Chen‘s first hearing, the IJ found him not credible and denied him relief from removal. Chen appealed to the BIA, which, on October 8, 2003, rejected the IJ‘s adverse credibility determination, but nevertheless concluded that Chen had failed to establish eligibility for asylum, withholding of removal, or CAT relief. Chen unsuccessfully moved for the BIA to reopen and reconsider its ruling, whereupon he petitioned this court for review of the BIA‘s decision. On June 14, 2006, pursuant to a stipulation and settlement by the parties, this court vacated the BIA‘s decision and remanded for further proceedings and reconsideration in light of Diallo v. INS, 232 F.3d 279, 288-90 (2d Cir.2000) (holding that BIA may
2. Second Agency Denial
After further hearings, the IJ again denied Chen relief from removal on March 6, 2008. The IJ concluded that Chen (a) had not established entitlement to CAT relief, (b) was not eligible for asylum or withholding of removal based on his wife‘s sterilization, and (c) was not otherwise eligible for asylum or withholding of removal because he had not demonstrated his own resistance to the coercive population control policies. In a July 20, 2009 decision, the BIA identified error in the IJ‘s final conclusion. It found that Chen‘s payment to have his wife‘s intrauterine device removed and his purposeful failure to obtain birth permits for his second and third child manifested the necessary resistance. Accordingly, the BIA remanded the case to the IJ, with specific directions that further evidence be taken as to Chen‘s financial circumstances to determine if he was entitled to relief based on economic persecution.
3. Third Agency Denial
Chen provided further testimony before the IJ on October 26, 2010. On March 4, 2011, the IJ again ordered removal, concluding that Chen had waived his original request for CAT relief by not pursuing it further on remand and had not established either past economic persecution or a well founded fear of future economic persecution so as to warrant either asylum or withholding of removal. With respect to the latter conclusion, the IJ found that, although Chen had been fined a large amount, he had not demonstrated that the fine caused him substantial economic harm because (a) after Chen went into hiding, his family‘s income doubled because he was able to earn 1,500 rmb per year in a neighboring village while his wife continued to work their farm; (b) when Chinese authorities visited his home looking for valuables that might satisfy the fine, they seized nothing; (c) Chen had the demonstrated ability to borrow significant amounts of money—up to $50,000—from family and friends; (d) Chen had already left China when authorities terminated his farming leasehold in 2003; and (e) in the United States, Chen was able to earn enough money to repay his smuggling debt, support his family in China, and accumulate savings of $1,716.75. As to feared future persecution, the IJ found that Chen‘s subjective fear was not objectively reasonable because there was no evidence (a) that government officials had come to his home or inquired about his whereabouts in the last ten years; or (b) that Chen would be unable to support himself upon return to China by farming, tending livestock in a neighboring village, or working in the construction or restaurant industries.
Chen appealed to the BIA and submitted a motion to reopen. On April 25, 2013, the BIA dismissed the appeal and denied reopening. Echoing the IJ, the BIA concluded that Chen had suffered no past economic persecution as a consequence of the large fine imposed on him because, when he failed to pay the fine, both he and his wife were able to continue working, and authorities did not confiscate their possessions or their home. The BIA explained that the 2003 termination of his farming leasehold did not constitute past persecution because it occurred only after Chen‘s 2001 departure from China. In
On May 22, 2013, Chen filed the current petition, which seeks review of the BIA‘s April 25, 2013 decision.
II. Discussion
A. Jurisdiction and Standards of Review
Federal courts have jurisdiction to review final orders of removal pursuant to
Under the substantial evidence standard, the agency‘s factual findings are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
As for legal conclusions, where the BIA has issued a precedential opinion, our de novo review is limited to determining whether the BIA‘s legal interpretations satisfy the requirements for deference under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Baraket v. Holder, 632 F.3d 56, 58 (2d Cir.2011). Non-precedential opinions, such as the BIA opinion here, cannot claim Chevron deference. See Mei Juan Zheng v. Holder, 672 F.3d 178, 184 (2d Cir.2012). Our court has not yet decided whether non-precedential BIA opinions are entitled to deference pursuant to Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), which affords agency interpretations “respect according to [their] persuasiveness,” Sai Kwan Wong v. Doar, 571 F.3d 247, 260 (2d Cir.2009) (internal quotation marks omitted). See Dawkins v. Holder, 762 F.3d 247, 249 (2d Cir.2014) (observing that question of Skidmore deference to unpublished BIA decisions remains open). We need not conclusively answer the question here because the BIA‘s legal reasoning is infected by fact-finding not supported by substantial evidence and, therefore, would not warrant Skidmore deference even if it applied. See Gonzales v. Oregon, 546 U.S. 243, 269, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (stating that “under Skidmore,” courts follow agency‘s interpretation only to “extent it is persuasive“).
As relevant here, whether certain events will or might occur in the future is a question of fact. See Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir.2012). On the other hand, whether certain events, if they occurred, would constitute persecution as defined by the INA is a question of law. See id. at 136. Further, whether a given likelihood of persecution satisfies the requirements for asylum or withholding of removal is a question of law. See id. at 135.
1. Asylum
Asylum is a form of discretionary relief that allows an otherwise removable alien to remain and work in the United States. See
2. Withholding of Removal
Withholding of removal is a form of mandatory relief that prevents an otherwise removable alien from being removed to a country where “the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
Because the standard for withholding of removal is thus more demanding than that for asylum, it necessarily follows that an alien who cannot demonstrate eligibility for asylum also cannot demonstrate entitlement to withholding of removal. See
C. Economic Persecution
Courts have long recognized that certain economic sanctions can rise to the level of persecution. See, e.g., Dunat v. Hurney, 297 F.2d 744, 746 (3d Cir.1961) (interpreting former version of withholding-of-removal provision requiring “physical persecution” and holding that economic persecution can suffice because “[t]he denial of an opportunity to earn a livelihood in a country such as the one involved here is the equivalent of a sentence to death by means of slow starvation and none the less final because it is gradual“); accord Diminich v. Esperdy, 299 F.2d 244,
In re T-Z- instructs that an economic sanction constitutes persecution if it (1) “‘depriv[es] [the victim] of liberty, food, housing, employment or other essentials of life,‘” or (2) deliberately imposes a “‘severe economic disadvantage.‘” 24 I. & N. Dec. at 171 (emphasis omitted) (quoting H.R.Rep. No. 95-1452, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 4700, 4704). The first prong of this standard is intended to reference “deliberate deprivation of basic necessities such that life or freedom is threatened.” Id. at 171. The second prong references sanctions that, while not actually threatening life or freedom, nonetheless “reduce an applicant to an impoverished existence.” Id. at 174.
Economic sanctions that might manifest persecution include “particularly onerous fine[s],” “large-scale confiscation[s] of property,” and “sweeping limitation[s] of opportunities to continue to work in an established profession or business.” Id. There is, however, no fixed threshold for the economic harms that will manifest persecution. Instead, whether a given economic sanction constitutes persecution turns on its “impact” on the victim. Id.; accord In re J-H-S-, 24 I. & N. Dec. 196, 200–01 (B.I.A.2007), petition for review denied sub nom. Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.2008). Thus, a sanction that impoverishes a poor victim would constitute persecution, while the same sanction imposed on a wealthier individual without such effect would not. See In re T-Z-, 24 I. & N. Dec. at 173 n. 10, 174-75; see also Guan Shan Liao v. U.S. Dep‘t of Justice, 293 F.3d at 70 (holding that whether fine constitutes persecution turns on victim‘s financial circumstances and fine‘s effect). In sum, an economic sanction is persecution only if its impact is an “infliction of suffering or harm” that on its own would be sufficient to constitute persecution. Mei Fun Wong v. Holder, 633 F.3d at 72 (internal quotation marks omitted).
D. Chen‘s Asylum Claim
In denying Chen asylum, the agency determined that he had failed to demonstrate economic harms manifesting either past persecution or a well founded fear of future persecution. We identify no error in the past persecution determination, but we vacate the agency‘s rejection of Chen‘s claimed fear of future persecution and remand for further proceedings on that issue.
1. Past Persecution
Chen argues that the agency erred in rejecting his past persecution claim because the imposition of an 18,000
A total 23,000 rmb fine, more than twenty times Chen‘s annual income, was certainly “extraordinarily severe” and “particularly onerous“—i.e., the kind of economic sanction that In re T-Z- recognized could amount to persecution. I. & N. Dec. at 171, 174. But In re T-Z- does not state that the mere imposition of a severe or onerous fine necessarily effects persecution. Rather, In re T-Z- explains that an economic sanction constitutes persecution when it actually “depriv[es] [the alien] of basic necessities such that life or freedom is threatened,”
This conclusion finds support in our precedent, as well as that of our sister circuits, holding that threats of persecution, no matter how credible, do not demonstrate past persecution. See Gui Ci Pan v. U.S. Att‘y Gen., 449 F.3d 408, 412-13 (2d Cir.2006); see also Zhen Hua Li v. Att‘y Gen. of U.S., 400 F.3d 157, 164-65 (3d Cir.2005) (cited approvingly in Gui Ci Pan) (stating that even “sinister and credible” threats, including “death threats,” would not qualify as past persecution unless fulfilled or “highly imminent“); Lim v. INS, 224 F.3d 929, 932-33, 936 (9th Cir.2000) (cited approvingly in Gui Ci Pan) (identifying no past persecution despite highly credible death threats). That is true even where, as here, the threat implicit in an onerous fine—that collection will render one impoverished or without the necessities of life—leads the alien to flee his own village and hide in a neighboring one to avoid suffering these effects. See generally Gui Ci Pan v. U.S. Att‘y Gen., 449 F.3d at 412 (stating that where petitioner‘s girlfriend was able to avoid forced abortion by couple‘s going into hiding, petitioner could not claim past persecution from threat of abortion); Guan Shan Liao v. U.S. Dep‘t of Justice, 293 F.3d at 70 (holding that petitioner who fled
Chen cites no case in which a court has found past economic persecution on the basis of an unpaid fine. Indeed, in the one case he cites where a court‘s finding of past persecution rested, in part, on a fine, the alien had been forced to pay the fine before fleeing China. See Zhen Hua Li v. Att‘y Gen. of U.S., 400 F.3d at 169 (finding economic persecution based partly on fine);
In short, because economic persecution occurs only when a person is deprived of the necessities of life or rendered impoverished, and because Chen failed to show that the fine imposed on him ever had such effects before he left China, he necessarily fails to demonstrate that the BIA erred as a matter of law in rejecting his claim of past persecution.
The 2003 termination of Chen‘s farming leasehold warrants no different conclusion, because past persecution references persecution that the alien has experienced in his native country before departing from it. See
Accordingly, we conclude that there is no merit to Chen‘s argument that, as a matter of law, the record compels a finding that he suffered past economic persecution. To the contrary, the agency reasonably concluded that the record does not admit such a finding.
The BIA and IJ concluded that despite an outstanding 18,000 rmb fine and the loss of his farming leasehold, Chen did not have a well founded fear of future economic persecution upon return to China because (a) he had not claimed that Chinese officials made any attempt to collect the fine after 2003; and (b) even if payment were demanded, Chen could (1) make arrangements for installment payments, (2) borrow money from friends and relatives, (3) earn money working in a neighboring village, as he had before fleeing China, and (4) use his savings of $1,716.75. A number of these findings rest on misstatements of fact or are not supported by substantial evidence in the record.
First, as the government concedes, Chen testified that Chinese officials have frequently come to his family‘s home over the past decade looking for money to satisfy his outstanding fine. See J.A. 133. Thus, the agency finding that Chen failed to claim continued collection efforts in the past decade—the basis for its conclusion that Chen might not face continued persecutive fine obligations upon return to China—is not supported by substantial evidence.
Second, the finding that Chen could likely arrange for reasonable installment payments of his outstanding 18,000 rmb fine upon return to China finds no support in the record. To the contrary, the record shows that in September 1996, within five months of Chen‘s initial payment of 5,000 rmb on the original 13,000 rmb fine, Chinese officials came to Chen‘s home and told him he had ten days to pay the outstanding 8,000 rmb owed plus an additional 10,000 rmb delinquency penalty. In short, far from being permitted to make reasonable installment payments on his fine, Chen was under orders to pay a total of 23,000 rmb, more than twenty times his annual income, within a period of less than six months. The agency‘s reasonable-installment conclusion appears to derive from the IJ‘s reference to September 1998 as the time when the additional 10,000 rmb penalty was imposed and full payment demanded. See J.A. 93, 96, 97. The record, however, shows that Chen consistently maintained that the demand for full payment and the imposition of the additional penalty occurred in September 1996. See J.A. 109, 617, 970, 1214. Indeed, in previous decisions, the IJ found and the BIA acknowledged that the additional fine was imposed in 1996. See J.A. 263 n.3, 289-90. Thus, the IJ‘s finding that the additional fine and full payment demand occurred in 1998—the basis for his determination that Chen had been given two years to pay the fine and might, therefore, reasonably expect to negotiate installment payments upon return to China—is not supported by substantial evidence.
Third, the agency found that because Chen had borrowed and repaid substantial amounts from friends and relatives in the past—2,000 rmb from his sister to make his initial fine payment and $50,000 from friends and relatives to cover the smuggling fee that got Chen to the United States—he could likely do so again to pay any fine demanded upon return to China. While the record can support a finding that Chen‘s sister might again lend him money to pay his fine, the same conclusion does not necessarily obtain with respect to further loans from others. In Xue Yun Zhang v. Gonzales, 408 F.3d 1239 (9th Cir.2005), the Ninth Circuit reviewed a similar agency finding that an alien‘s family could help her pay a fine in China because it had paid for her to come to the United States. See id. at 1247-48. The court concluded that the finding was not
Chen does not dispute, and we identify no error in, the agency‘s other findings, i.e., that he could use his savings to pay part of his outstanding fine, and that, despite loss of his farming leasehold, he could find some gainful employment in China, whether in his own village or neighboring ones. Nevertheless, these findings are not sufficient for us to conclude with confidence that, with the other factual errors corrected on remand, the agency would still conclude that Chen does not have an objectively reasonable fear of future economic persecution if returned to China. See Kone v. Holder, 596 F.3d 141, 143 (2d Cir.2010).
Assuming that Chen could use both his savings of $1,716.75 (10,565 rmb) and another 2,000 rmb borrowed from his sister to pay the outstanding 18,000 rmb fine, he would still fall 5,435 rmb short of the full amount due. Whatever employment Chen might be able to find in China, there is no evidence to support a conclusion that a man who never earned more than 1,500 rmb per year in that country and who no longer had a farming leasehold could quickly earn more than three times that amount so as to pay the more than 5,000 rmb due after depleting his savings and borrowing from his sister, much less that he could do so without becoming impoverished or deprived of the necessities of life—i.e., without suffering economic persecution.
Indeed, the probability of such future persecution is only reinforced by evidence that Chinese authorities previously demanded that Chen pay his fine in full and responded to his failure to do so with additional monetary sanctions and, eventually, the termination of Chen‘s farming leasehold—which termination, but for Chen‘s United States earnings, would have left his family impoverished. Thus, even if termination of the farming leasehold while Chen was in the United States did not subject him to economic persecution at that time, the action is relevant to whether Chen might reasonably fear economic persecution upon return to China if he could not make full payment on the outstanding fine. See generally Fei Mei Cheng v. Att‘y Gen. of U.S., 623 F.3d 175, 194-95 & n. 14 (3d Cir.2010) (concluding that confiscation of family farm and truck constituted economic persecution where “family depended on the farm to make a living,” even though alien “was able to ‘get by’ with a job she located in another city” (internal quotation marks omitted)); Zhen Hua Li v. Att‘y Gen. of U.S., 400 F.3d at 169 (concluding that fine equal to one-and-one-half years’ salary was “extremely onerous“).
E. Chen‘s Withholding of Removal Claim
The agency denied Chen withholding of removal solely on the ground that he had not met the lower burden for asylum. Because we vacate the agency‘s order denying asylum, we also vacate its denial of withholding of removal and remand for further consideration of whether the corrected (or expanded) factual record supports this non-discretionary relief.
III. Conclusion
To summarize, we conclude as follows:
1. To demonstrate past economic persecution, an alien must do more than demonstrate that an extraordinarily severe or particularly onerous fine has been imposed on him for engaging in protected conduct. He must show that payment of the fine or efforts to pay or collect such a fine have had the actual effect of depriving him of life‘s necessities or rendering him impoverished before he entered the United States.
2. Imposition of an extraordinarily severe or particularly onerous fine, even without payment, can support an alien‘s well founded fear of future economic persecution if returned to his native country, particularly where there is record evidence of authorities’ continuing interest in collecting the fine and the alien‘s inability to make payment without being deprived of life‘s necessities or rendered impoverished.
3. We identify no error of law or fact in the agency‘s determination that petitioner here failed to demonstrate past economic persecution. We do, however, identify error in the agency‘s determination that petitioner failed to demonstrate a well founded fear of future economic persecution because a number of factual findings informing that conclusion are not supported by substantial evidence.
Accordingly, the petition for review is DENIED in part as it pertains to claimed past persecution and GRANTED in part as it pertains to feared future persecution.
The order of removal is VACATED insofar as it denied petitioner both asylum and withholding of removal based on feared future persecution, and the case is REMANDED for further proceedings on that ground consistent with this opinion.
Irving H. Picard, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC, Plaintiff-Appellant, Securities Investor Protection Corporation, Statutory Intervenor pursuant to Securities Investor Protection Act,
Nos. 12-2557-bk(L), 12-2497-bk(con), 12-2500-bk(con), 12-2616-bk(con), 12-3422-bk(con), 12-3440-bk(con), 12-3582-bk(con), 12-3585-bk(con).
United States Court of Appeals, Second Circuit.
Argued: March 5, 2014. Decided: Dec. 8, 2014.