LI FANG LIN, a/k/a Lifang Lin, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
No. 06-1456.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 30, 2007. Decided: Feb. 20, 2008.
517 F.3d 685
Instead, the majority‘s interpretation embraces the narrowest possible understanding of Article 8(c) by failing to consider the significance of the latter portion of the provision. That portion states that “if [the carrier] exercises [the right to alter the stopping places] the alterations shall not have the effect of depriving the transportation of its international character.” This safety valve ensures that all parties to the contract understand and agree that the transportation in question qualifies for limited liability protection under the Warsaw Convention regardless of any alternate route that the carrier may select out of necessity. As the District Court explained, the inclusion of a safety valve demonstrates that the “driving force of 8(c) as a whole is. to ensure notice and acknowledgment, not as to every stop, but as to stops [that] pertain to and indicate the international character of the flight.” Dist. Ct. Op. at 22.
The majority contends that the “meaning the District Court gave to the language of 8(c) requires an additional caveat that simply does not appear in the text.” Part II, supra at [9]. To the contrary, it is the majority‘s reading of Article 8(c) that imposes upon carriers a burden far heavier than the provision requires. To further the purpose of the Warsaw Convention to the “greatest extent possible,” as mandated by Onyeanusi, this Court should read Article 8(c) as imposing a requirement that carriers list only those “agreed stopping places” that might impact the international character of the flight and thus the availability of limited liability protection to the carrier.8
For these reasons, I respectfully dissent.
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and Louise W. FLANAGAN, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.
Petition for review granted; vacated and remanded by published opinion. Chief Judge WILLIAMS wrote the majority opinion, in which Judge FLANAGAN concurred. Judge TRAXLER wrote a separate dissenting opinion.
OPINION
WILLIAMS, Chief Judge:
Li Fang Lin, a citizen of the People‘s Republic of China, petitions for review of a final order of the Board of Immigration Appeals (“BIA“) denying her applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT“). Lin‘s applications for asylum and withholding of removal stem from the forced implantation of an intrauterine contraceptive device (“IUD“) by Chinese officials after the birth of her first child. Her application for protection under the CAT arises from her fear of detention and torture as a result of leaving China illegally with the assistance of a snakehead.1 The BIA dismissed Lin‘s asylum claim, concluding that the forced IUD insertion was not persecution under the Immigration and Nationality Act (“INA“),
I.
A.
When, as here, the BIA does not expressly adopt any portion of the Immigration Judge‘s (“IJ“) decision, we review only the findings and order of the BIA, not those of the IJ. Huaman-Cornelio v. B.I.A., 979 F.2d 995, 999 (4th Cir.1992).
The BIA expressly declined to address the IJ‘s determination that Lin‘s testimony was incredible.2 We have not yet had occasion to answer the question of how we should evaluate the petitioner‘s testimony in such circumstances. In similar situations, our sister circuits have presumed the petitioner to be credible and have reviewed only whether the petitioner satisfied the burden of proof. See Ying
B.
Lin was a lifelong resident of the Fujian Province on the southeast coast of China. Fujian Province “has been known for being a place where the [one-child] policy has been enforced with special vigor“—a reputation that persists still today.3 (J.A. at 254.) Local officials in Fujian Province have employed unspecified measures to deal with out-of-plan pregnancies, and, notwithstanding a purported national policy to the contrary, forced sterilization and abortion are prevalent in rural areas. U.S. Dep‘t of State Country Reports on Human Rights Practices for 2006 (China), available at http://www.state.gov/g/drl/rls/hrrpt/2006/78771.htm (released March 6, 2007).4 In fact, in 2006, officials in Fujian Province “reportedly forcibly sterilized women.” Id.
Lin married her husband Li Wei on September 28, 1998, when she was 21 years old. The couple lived with Li Wei‘s parents in Nan Seng village, also within Fujian Province. Lin gave birth to the couple‘s first child, a girl, on October 20, 1999.
In January 2000, about three months after the birth of Lin‘s and Li Wei‘s daughter, the local family-planning cadre, acting pursuant to China‘s “one-child” policy but against Lin‘s will, fitted her with an IUD to prevent further pregnancies. The record does not provide details about the circumstances of the IUD insertion because the IJ declined to hear Lin‘s testimony about the IUD insertion procedure. At the hearing, Lin‘s counsel asked her to “describe . . . the procedure of the IUD insertion.” (J.A. at 114.) Before Lin could respond, the IJ instructed, “That‘s okay, counsel. You can move on to the next question.” (J.A. at 114.)
Despite her awareness of the Chinese Government‘s family-planning policy, Lin desperately wanted to give birth to a boy. The reasons were many. She and her husband wanted a boy to carry on the family name, to help care for them when they became old and could no longer care
Because Lin did not attend her regularly scheduled checkups, the cadre began to look for her in Nan Seng. On several occasions, the cadre visited her in-laws’ home in the village. Lin‘s husband told the cadre that Lin had gone to visit her relatives, but the cadre did not believe him and told him that he would be in trouble if Lin was found.
Local Chinese authorities in Lin‘s home village learned about the existence of the couple‘s second child when Lin‘s husband brought the baby to Nan Seng to visit his parents in March 2003. Lin testified that her husband took the baby to Nan Seng rather than having her in-laws visit the baby in Bian Lan because it was too difficult for her aging in-laws to make the trip over rural roads and because her in-laws felt that it was inappropriate under Chinese customs for them to visit the baby at the house of a relative on Lin‘s side of the family.5
Immediately after Lin‘s husband and daughter left Nan Seng, the family-planning cadre visited Lin‘s in-laws’ home. They claimed that they knew that Lin had a second child and informed her in-laws that “if [Lin] [came] back, if the government found her, she [would] be sterilized.” (J.A. at 114.) The cadre threatened to destroy Lin‘s in-law‘s house and to impose fines if Lin did not report for sterilization. Lin departed China in May 2003, shortly after her husband had taken the baby to visit his parents in Nan Seng. Lin‘s husband has been in hiding since her departure, living with their two children at her aunt‘s home in Bian Lan and working in her aunt‘s garment factory.
In addition to her fear of forced sterilization, Lin also expressed fear that she would be fined, beaten, jailed, and/or tortured upon return to China because she came to the United States with the help of
C.
On or about June 4, 2003, Lin attempted to enter the United States at or near the Miami International Airport without valid entry documents. The Immigration and Naturalization Service (“INS“), which has now been reorganized within the Department of Homeland Security (“DHS“), took Lin into custody at the airport. On June 10, 2003, DHS issued Lin a Notice to Appear, charging her with being subject to removal under
On June 10, 2004, an IJ conducted a removal hearing in which Lin was the only witness. At the conclusion of Lin‘s testimony, the IJ, in an oral decision, found that Lin “ha[d] failed to meet her burden that she has suffered past persecution or that she has a well-founded fear of future persecution should she return to the People‘s Republic of China at the present time” and that Lin‘s testimony was “incredible.” (J.A. at 79.) The IJ thus denied Lin‘s claims for asylum, withholding of removal, and protection under the CAT.
Lin timely appealed the IJ‘s decision to the BIA. On March 23, 2006, a single member of the BIA dismissed the appeal. In its written decision, and as noted above, the BIA expressly declined to address the IJ‘s adverse credibility determination. Instead, the BIA reasoned that even if Lin‘s testimony were taken as true, she could not meet her burden of proof. The BIA first concluded that Lin failed to establish past persecution because “the temporary nature of the IUD insertion removes it from the defined and permanent actions described as persecutory within the definition of ‘refugee’ set forth in section 101(a)(42)(A) of the [INA]” and because Lin was never forced to abort a pregnancy
Turning to her claim of a well-founded fear of future persecution, the BIA reasoned that, even if Lin met her burden of establishing her subjective fear, she had failed to submit any evidence that her fear of returning to China was objectively reasonable. The BIA noted that the reasonableness of Lin‘s fear of sterilization was undermined because Lin was never harmed after fleeing to her aunt‘s home to have her child and because her husband, who remained in China, had not been sterilized. It emphasized that Lin had failed to submit what it viewed as reasonably obtainable documents to corroborate her claim, such as a birth certificate for her second daughter or affidavits from her relatives. The BIA found that Lin‘s claim was further undermined by the fact that she freely obtained a passport and left China without encountering any problems. Finally, the BIA stated that the possibility that Lin might be subjected to criminal prosecution for leaving the country with the aid of a smuggler did not demonstrate a likelihood of persecution under the INA. Thus, the BIA concluded that Lin “failed to prove that a reasonable person in her circumstances would fear persecution if returned to China.” (J.A. at 3.)
Addressing Lin‘s withholding of removal and CAT claims, the BIA stated:
Inasmuch as [Lin] has failed to meet the lower statutory burden of proof required for asylum, it follows that she has also failed to satisfy the higher burden required for withholding of deportation and protection under the Convention Against Torture. (J.A. at 3.)
Lin timely petitioned for our review of the BIA‘s removal order. We possess jurisdiction under
II.
In her petition for review, Lin principally contends that the BIA erred in denying her asylum and withholding of removal claims because she has established both past persecution and a well-founded fear of future persecution for her resistance to China‘s coercive population-control program. Lin also challenges the denial of her claim for CAT protection.
A.
The BIA‘s decision that an alien is not eligible for admission to the United States is “conclusive unless manifestly contrary to the law.”
An alien seeking asylum must demonstrate that she is unable or unwilling to return to her country of origin because of persecution, or a well-founded fear of persecution, on account of her race, religion, nationality, membership in a particular social group, or political opinion.
[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
Id.
An alien seeking withholding of removal bears the higher burden of showing that it is “more likely than not” that, if removed to a particular country, her life or freedom would be threatened on account of one of the enumerated grounds. Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir.2004). An applicant seeking protection under the CAT must show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
B.
With this statutory backdrop in place, we turn to each of Lin‘s arguments.
Lin contends that the BIA dismissal of her asylum and withholding of removal claims was inappropriate because the BIA erred in finding that Lin did not establish a well-founded fear of future persecution.10 When an alien has suffered past persecution, she is presumed to have the
Lin contends that she suffered past persecution for resistance to China‘s coercive population control program through the forced insertion and mandatory continued usage of the IUD, thus entitling her to a presumption of a well-founded fear of persecution. This argument is premised on our holding in Qiao Hua Li v. Gonzales, 405 F.3d 171 (4th Cir.2005). In Qiao Hua Li, we held that the single event of IUD insertion did not constitute persecution, but we expressly left open the possibility that if Qiao Hua Li had challenged both “the required insertion and continuous usage of an IUD,” we might have found that the IUD insertion constituted persecution. Id. at 179 & n. 5 (emphasis added).
The BIA has yet to provide a published, precedential opinion addressing whether, and under what circumstances, the forced insertion and continued usage of an IUD constitutes persecution. It thus has not afforded “the bench, the bar and potential asylum applicants [] guidance concerning whether and how they might approach the issue.” Ying Zheng, 497 F.3d at 203. In Lin‘s case, the BIA determined that “the temporary nature of the IUD insertion removes it from the defined and permanent actions described as persecutory within the definition of ‘refugee’ set forth in section 101(a)(42)(A) of the [INA].” (J.A. at 2 (emphasis added).) This cursory statement, however, does not provide us enough information to conduct a meaningful review of the BIA‘s conclusion that Lin has not suffered past persecution. It is unclear from the BIA‘s stark invocation of the word “temporary” how the BIA factored the “temporary” nature of IUD insertion and usage into its overall persecution calculus, i.e., whether forced IUD insertion and continued usage is never persecution or whether it is not persecution only because it did not deprive Lin of a significant portion of her reproductive life. See Qiao Hua Li, 405 F.3d at 177 (stating that persecution “involves the infliction or threat of death, torture, or injury to one‘s person or freedom, on account of one of the enumerated grounds in the refugee definition“). “It will not do for a court to be compelled to guess at the theory underlying the agency‘s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.” S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947). Here, we cannot review the BIA‘s decision because
Accordingly, we vacate the BIA‘s denial of asylum to Lin and remand for proceedings consistent with this decision.12 The BIA dismissed Lin‘s withholding of removal claim solely because it found that she failed to meet the lower burden of proof for asylum. Because of our conclusion as to Lin‘s asylum claim, we must also vacate the BIA‘s decision dismissing her withholding of removal claim and remand that claim as well.13
We also wish to note that the BIA decision was signed by a single member, which
C.
Lin also asserts that she was denied due process when the IJ refused to allow her to testify about the IUD insertion procedure. In Qiao Hua Li, we also left open the possibility that we might have found that the IUD insertion constituted persecution “if the record contained evidence of forcible mistreatment or physical abuse of [Qiao Hua] Li during the IUD insertion.” 405 F.3d at 179. The Government contends that Lin‘s claim, like the claim in Qiao Hua Li, fails for a lack of evidence that she underwent anything but “a medically routine insertion . . . which typically does not cause pain or lasting side effects.” Id. But when Lin‘s attorney asked her to describe the IUD insertion procedure, the IJ did not allow Lin to so testify and instructed counsel to “move on.” (J.A. at 114.)
Although the Government is correct that aliens illegally in this country do not have a fundamental right to remain, Harisiades v. Shaughnessy, 342 U.S. 580, 586-87 (1952), aliens are entitled to the constitutional protections of the Due Process Clause, Mathews v. Diaz, 426 U.S. 67, 77 (1976). See also Rusu v. U.S. I.N.S., 296 F.3d 316, 320 (4th Cir.2002) (“Deportation and asylum hearings . . . are subject to the requirements of procedural due process.“). Lin argues that due process requires that she be given a “full and fair hearing” in her removal proceeding. The BIA itself has stated that the IJ must “ensure that the applicant presents [her] case as fully as possible and with all available evidence.” In re S-M-J-, 21 I. & N. Dec. 722, 729 (BIA 1997) (internal quotation marks and citations omitted).
In its decision, the BIA did not address Lin‘s due process claim. It may be that Lin‘s counsel‘s failure to object to the judge‘s curtailment of her testimony forecloses appellate review of this claim. In
D.
Finally, Lin contends that the BIA erred in dismissing her CAT claim. Lin applied for protection under the CAT based on her fear that she will be jailed and tortured upon return to China because she came to the United States with the help of a snakehead. Lin concedes that her CAT claim is not related to China‘s coercive population-control policy. The BIA dismissed Lin‘s CAT claim because she failed to carry her burden of proof with respect to her asylum claim: “Inasmuch as the respondent has failed to meet the lower statutory burden of proof required for asylum, it follows that she has also failed to satisfy the higher burden required for . . . protection under the Convention Against Torture.” (J.A. at 3.)
We have noted, however, that “CAT has a standard independent from the standard for determining an asylum claim,” Camara, 378 F.3d at 372, so it does not follow that denial of asylum requires denial of CAT relief. “Because the CAT inquiry is independent of the asylum analysis, . . . the BIA‘s decision [as to asylum] should never, in itself, be determinative of the alien‘s CAT claim.” Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.2004). Indeed, given that CAT relief lacks a subjective element, focuses broadly on torture without regard to reasons for that treatment, and requires a showing with respect to future, rather than past treatment, id. at 185, “the CAT and asylum analyses focus on different elements and . . . must be treated independently.” Camara, 378 F.3d at 372 (quoting Ramsameachire, 357 F.3d at 184).
When the BIA misapplies the law addressing a CAT claim (or any other claim, for that matter), “the appropriate remedy is to remand so that the agency may apply the correct legal standard in the first instance.” Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir.2006); see also Ventura, 537 U.S. at 16 (explaining the “ordinary remand rule“). Remand is necessary here because the BIA failed to apply the correct legal standard to the CAT claim when it treated Lin‘s failure to meet the lower statutory burden of proof required for asylum as determinative of the CAT claim.15 We therefore remand
III.
For the foregoing reasons, we grant Lin‘s petition for review of the BIA‘s final order of removal. We remand to the BIA for such further proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED
TRAXLER, Circuit Judge, dissenting:
I would deny Lin‘s petition for review of the BIA‘s denial of her claims for asylum, withholding of removal, and relief under the CAT. The BIA‘s eligibility determination is “conclusive unless manifestly contrary to the law.”
The BIA concluded that Lin failed to carry her burden of proving “refugee” status, i.e., eligibility for asylum under the INA. See
A.
In determining that Lin failed to establish past persecution, the BIA specifically concluded that an IUD insertion procedure, because of its reversible nature, does not qualify as persecution: “Although the record indicates the respondent was required to undergo IUD insertion, the temporary nature of the IUD insertion removes it from the defined and permanent actions described as persecutory within the [INA‘s] definition of ‘refugee.‘” J.A. 2. The BIA‘s order does not specifically reference the “continued usage” aspect of Lin‘s claim; rather, the BIA rejected the narrower claim that the insertion of an IUD alone rises to the level of “persecution.” Such a conclusion is certainly consistent with this court‘s decision in Li v. Gonzales, 405 F.3d 171, 179 (4th Cir.2005).
As Chief Judge Williams rightly points out, however, Li left open the possibility that a compulsory IUD insertion coupled with mandatory continuous usage might be
Nevertheless, even if the alleged acts qualified as persecution under the INA, I would still conclude that the BIA‘s decision is not manifestly contrary to the law because of Lin‘s failure to offer any evidence establishing a nexus between the IUD insertion and her own resistance to China‘s population control policies.
To establish eligibility for asylum based on past persecution, an alien must demonstrate that he suffered persecution on account of a protected ground. See
Lin seeks political asylum under the 1996 amendment to the definition of “refugee“: “[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion. . . .”
Lin‘s past persecution claim is premised on the insertion of an IUD following the birth of her first child and the ensuing mandatory medical checkups with family planning officials to ensure that Lin did not remove the device. In her asylum application, Lin claimed that she was
Although the BIA addressed whether Lin offered sufficient proof to establish past persecution, it did not specifically address whether Lin established that the alleged persecution was “for other resistance to a coercive population control program.”
We recently considered the “rare circumstances” exception to the ordinary remand rule in Hussain v. Gonzales, 477 F.3d 153, 157-58 (4th Cir.2007), concluding that remand to the BIA was not required where it was clear from the record that petitioner would be unable to establish a prima facie case that he was eligible for adjustment of status. Lin is in a similar position here. Not only is there no evidence to suggest that her IUD insertion resulted from her resistance, but the evidence suggests quite the opposite—that Lin‘s IUD insertion was standard operating procedure. Because Lin failed to produce any evidence linking her IUD procedure to “other resistance,” she failed, in my view, to establish a prima facie case. Under these circumstances, remand for
B.
I would also deny Lin‘s petition for review of the BIA‘s conclusion that she failed to establish a well-founded fear of future persecution. The BIA‘s rejection of Lin‘s claim of a well-founded fear of future persecution is grounded largely on findings of fact, to which we accord substantial deference. The BIA‘s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
C.
Finally, I would also deny Lin‘s petition for review of her claim for relief under the CAT. To be eligible for relief under the CAT, Lin must demonstrate “that it is more likely than not that . . . she would be tortured if removed to the proposed country of removal.”
Based on the foregoing reasons, I respectfully dissent.
Jimmie Wayne LAWRENCE, Petitioner-Appellee, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellant. Jimmie Wayne Lawrence, Petitioner-Appellant, v. Gerald J. Branker, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
Nos. 07-2, 07-4. United States Court of Appeals, Fourth Circuit. Argued: Dec. 7, 2007. Decided: Feb. 22, 2008.