Jiang v. Gonzales, No. 03-40487 (2d Cir. 2007)

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03-40487-ag Jiang v. Gonzales 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2004 (Submitted: July 12, 2005 Decided: August 31, 2007) Docket No. 03-40487-ag - - - - - - - - - - - - - - - - - - - -x TAO JIANG, Petitioner, -v.ALBERTO GONZALES, Attorney General of the United States,* Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, PARKER, Circuit Judge, and HURD, District Judge.** Petition for review of a final decision and order of 30 the Board of Immigration Appeals reversing, on an appeal by 31 the Department of Homeland Security, the IJ s grant of * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto Gonzales is substituted for his predecessor, Attorney General John Ashcroft, as respondent. ** The Honorable David N. Hurd, United States District Judge for the Northern District of New York, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 humanitarian asylum. The petition is denied. Alexander K. Yu, New York, NY, for Petitioner. Gary L. Hayward, Assistant United States Attorney, for Matthew G. Whitaker, United States Attorney for the District of Iowa, Des Moines, IA , for Respondent. DENNIS JACOBS, Chief Judge: Tao Jiang, a native and citizen of China, petitions for 16 review of an August 7, 2003 order of the Board of 17 Immigration Appeals ( BIA ), which sustained the Department 18 of Homeland Security s ( DHS ) appeal from Immigration Judge 19 ( IJ ) Anthony J. Randall s November 9, 2001 grant of 20 humanitarian asylum. 21 of his mother, occasioned by Jiang s own birth, and economic 22 hardship suffered by Jiang and his family when his mother 23 failed to fully recover from the procedure. 24 relies only on his mother s past persecution by reason of 25 political opinion, and has shown no valid nexus between the 26 economic hardship he suffered and any protected ground of 27 his own, we agree with the BIA that he suffered no past 28 persecution. Jiang cites the forced sterilization The petition is denied. 2 Because Jiang 1 BACKGROUND 2 3 4 5 Petitioner Tao Jiang, whom the IJ found credible, has given the following account. Jiang was the second child born to a family in Fujian 6 Province, China. His birth, on February 28, 1980, violated 7 population control laws. 8 officials forced Jiang s mother to undergo sterilization. 9 The sterilization procedure had lingering health effects. Three months later, government 10 Although his mother continued to work, she was less 11 productive in her farm work and housework, and often sick 12 with symptoms that included high blood pressure and stomach 13 pain. 14 to care for the children. 15 hardship for the family. 16 his school years, was often absent, lagged behind, and was 17 unable to attend middle school after completing elementary 18 school. 19 unable to support itself, Jiang left China to escape 20 privation. 21 leave China, but was unable to do so. 22 Jiang s father therefore often stayed away from work These conditions caused economic Jiang was forced to work during After his father died in 1996, leaving the family He testified that his mother also wished to Jiang s original application sought asylum on 3 1 religious grounds, without mention of his mother s 2 sterilization; but the application was amended to assert a 3 claim that he was seeking to escape persecution on the 4 account of his parents violation of population control 5 laws. 6 After an evidentiary hearing, the IJ found Jiang s 7 testimony credible and granted humanitarian asylum in an 8 oral opinion on November 9, 2001.1 9 entered the United States for purely economic reasons, the 10 IJ decided that (whether or not there was a likelihood of 11 future persecution) the economic hardship suffered by Jiang 12 and his family in the wake of his mother s sterilization was 13 sufficiently harsh past persecution to entitle Jiang to 14 humanitarian asylum under In re Chen, 20 I. & N. Dec. 16 15 (B.I.A. 1989). 16 been persecuted on account of any political opinion of his 17 mother s that was imputed to him; rather, because Jiang s Although Jiang had The IJ concluded that Jiang had not himself 1 While asylum must be sought within one year of arrival, see 8 U.S.C. § 1158(a)(2)(B), Jiang did not apply until several years had passed. The IJ concluded that Jiang s reaching 21 years of age in 2001 constituted a change in circumstances under 8 U.S.C. § 1158(a)(2)(D), and that Jiang s application could therefore be considered notwithstanding its untimeliness. The DHS did not appeal this determination before the BIA, and we do not address it. 4 1 mother had been persecuted for political opinion when she 2 was forced to undergo sterilization, Jiang was affected by 3 the mother s political activities and was therefore 4 persecuted himself when the procedure rendered her unable to 5 adequately support Jiang. 6 DHS appealed to the BIA. On August 7, 2003, the BIA 7 sustained the appeal, deferring to the IJ s favorable 8 credibility finding but holding as a matter of law that 9 Jiang was not entitled to humanitarian asylum because he had 10 suffered no past persecution. 11 was not entitled to rely on his mother s sterilization 12 operation itself because he has not been subjected to 13 forced sterilization nor has he been threatened with such 14 action and he personally . . . suffered no harm by the 15 government. 16 sterilization economic hardship constituted persecution, 17 because there is no evidence that the government 18 deliberately imposed substantial economic disadvantage upon 19 the applicant and his family, especially on account of a 20 protected ground. 21 The BIA reasoned that Jiang The BIA rejected the idea that the post- This petition for review followed. 22 5 1 DISCUSSION 2 I 3 Jiang argues that his experiences in China constituted 4 past persecution because he and his family suffered economic 5 hardship as the direct result of his mother s forced 6 sterilization, an act which itself is clearly deemed 7 persecution of his mother by reason of political opinion 8 under 8 U.S.C. § 1101(a)(42). 9 When the BIA issues an opinion rejecting the IJ s 10 decision, the BIA s opinion becomes the basis for judicial 11 review of the decision of which the alien is complaining. 12 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005) 13 (citation omitted). 14 including the application of law to undisputed facts. 15 v. U.S. Att y Gen., 478 F.3d 513, 517 (2d Cir. 2007). 16 We do not owe Chevron deference to statutory interpretations 17 set forth in a non-precedential BIA decision by a single 18 board member, such as the BIA decision here. 19 Gonzales, 473 F.3d 55, 57 (2d Cir. 2007) (citing Chevron 20 U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 21 837 (1984)). 22 We review questions of law de novo, Uwais Rotimi v. The agency s factual findings are conclusive unless 6 1 any reasonable adjudicator would be compelled to conclude to 2 the contrary. 3 findings under the substantial evidence standard, which 4 requires that they be supported by reasonable, substantial 5 and probative evidence in the record when considered as a 6 whole. 7 (quoting Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 8 2003)) (internal quotation marks omitted). 9 8 U.S.C. § 1252(b)(4)(B). We review such Iouri v. Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007) To be eligible for asylum, a petitioner must show that 10 he meets the definition of refugee in 8 U.S.C. § 11 1101(a)(42), either because he has suffered past persecution 12 on account of race, religion, nationality, membership in a 13 particular social group, or political opinion, or that he 14 has a well-founded fear that, if deported, he will suffer 15 persecution on account of one of those protected grounds. 16 See Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir. 2006) 17 (citing Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir. 18 2003)). 19 20 21 22 23 24 25 26 In the analysis of past persecution, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal 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. 7 1 8 U.S.C. § 1101(a)(42). 2 raises a rebuttable presumption of a well-founded fear of 3 future persecution. 4 there is no probability of future persecution, an applicant 5 may be granted asylum on humanitarian grounds if [t]he 6 applicant has demonstrated compelling reasons for being 7 unwilling or unable to return to the country arising out of 8 the severity of the past persecution. 9 208.13(b)(1)(iii), (A). 10 A showing of past persecution Karaj, 462 F.3d at 116. But even if 8 C.F.R. § See Li Yong Cao v. U.S. Dep t of Justice, 421 F.3d 149, 156 (2d Cir. 2005). 11 12 13 14 II The BIA held as a matter of law that because Jiang only 15 alleged that he suffered economic hardship as a result of 16 his mother s forced sterilization, he failed to show past 17 persecution on a protected ground. 18 In Shi Liang Lin v. United States Department of 19 Homeland Security, we held that under the plain language of 20 8 U.S.C. § 1101(a)(42), a claim of persecution based solely 21 on a forced abortion or sterilization procedure without 22 evidence of any further harm can only be brought by the 8 1 individual who has undergone the procedure. 2 No. 02-4611-ag, 2007 WL 2032066, at *9-10 (2d Cir. July 16, 3 2007) (en banc). 4 his mother s sterilization itself, we are bound by Shi Liang 5 Lin, and we affirm the BIA s conclusion that he suffered no 6 past persecution on this basis. 7 --- F.3d ---, So to the extent Jiang s claim is based on But Jiang goes further. He asserts that, even if the 8 procedure itself may not have inflicted persecution on him, 9 his mother s subsequent illness and its economic impact on 10 the family did. As a general principle, an asylum applicant 11 cannot claim past persecution based solely on harm that was 12 inflicted on a family member on account of that family 13 member s political opinion or other protected 14 characteristic. 15 313 n.2 (2d Cir. 1999). 16 rely upon harm the applicant has suffered individually. 17 [T]he statutory scheme unambiguously dictates that 18 applicants can become candidates for asylum relief only 19 based on persecution that they themselves have suffered or 20 must suffer. 21 the same time, if an applicant s family member was harmed as 22 a means of targeting the applicant on some protected ground, See Melgar de Torres v. Reno, 191 F.3d 307, That is because an applicant must Shi Liang Lin, 2007 WL 2032066, at *8. 9 At 1 that harm may constitute persecution of the applicant. See 2 Ahmadshah v. Ashcroft, 396 F.3d 917, 920 (8th Cir. 2005) 3 ( Acts of violence against family members may demonstrate 4 persecution if they show a pattern of persecution tied to 5 the petitioner. ). 6 of humanitarian asylum (the relief originally granted here) 7 reflects that harm to family members is an important factor 8 in evaluating the severity of the persecution of applicants 9 who have suffered direct harm themselves. Moreover, BIA precedent in the context See, e.g., In re 10 Chen, 20 I. & N. Dec. 16 (B.I.A. 1989). 11 the agency must consider the totality of the circumstances 12 in each case to determine whether harm suffered by family 13 members in combination with other factors may constitute 14 past persecution of the applicant, even if government 15 authorities neither directly harmed the applicant nor harmed 16 the family member in order to target the applicant. 17 Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006). 18 This would presumably only be so where, as in Jorge-Tzoc, 19 the applicant not only shares (or is perceived to share) the 20 characteristic that motivated persecutors to harm the family 21 member, but was also within the zone of risk when the family 22 member was harmed, and suffered some continuing hardship 10 Also, we have held See 1 after the incident.2 2 the applicant experienced harm directly is not in itself 3 dispositive; the question is whether the applicant s 4 cumulative experiences were sufficiently severe as to rise 5 to the level of persecution. 6 Under Jorge-Tzoc, the question whether Mindful of these principles, we conclude that the BIA 7 did not err. Jiang s mother s illness--caused by the 8 government--and Jiang s resulting hardship did not 9 constitute past persecution of him on account of a protected 10 ground. Even assuming that the privations Jiang suffered 11 rose to the level of persecution as a matter of severity, 2 While he was a small child, the petitioner in JorgeTzoc (a Guatemalan of Mayan descent) survived a massacre that was part of a pervasive campaign carried out by the [Guatemalan] army against Mayans in the area around the petitioner s village. 435 F.3d at 150. His sister and her family were killed by the army in a neighboring village, and several other relatives and neighbors were killed in the petitioner s own village. Id. at 147-48. He did not witness the killings, but saw the soldiers and saw his cousin s bullet-riddled corpse on the ground in the massacre s aftermath; his family lost land and property when the massacre forced them to relocate, and they struggled to survive. Id. at 150. This Court remanded after rejecting the notion that in such circumstances, the lack of any direct harm to the petitioner necessarily supported the agency s conclusion that he had suffered no past persecution; the agency was required to evaluate the cumulative impact of the petitioner s experiences, taking into account the petitioner s sensitive age at the time. Id. 11 1 the record evidence demonstrates no nexus to a protected 2 ground in Jiang s individual case. 3 the persecution Jiang s mother suffered was not inflicted on 4 account of some characteristic Jiang shared with his mother. 5 As we reasoned in Shi Liang Lin, § 1101(a)(42) provides that 6 those who have been subject to forced sterilization are 7 deemed to have suffered persecution by reason of political 8 opinion; but this constructive political opinion--whatever 9 its exact contours--cannot be presumed to have been imputed 10 to the family of the individual who undergoes the procedure; 11 there must be some evidence that it was so imputed. 12 2007 WL 2032066, at *8. 13 opinion may be direct or circumstantial, and need only show 14 that those who harmed [Jiang] were in part motivated by an 15 assumption that his political views were antithetical to 16 those of the Government. 17 492, 496 (B.I.A. 1996). 18 taken no further action against the family after persecuting 19 Jiang s mother.3 Unlike in Jorge-Tzoc, See Evidence of imputed political In re S-P-, 21 I. & N. Dec. 486, The government appears to have And Jiang has adduced no evidence that 3 Jiang at one point testified vaguely that he lived with his grandparents because he was afraid that the village cadre would target his parents; and he stated without elaboration that at some undefined time in the past, I saw the village government come to our home to arrest people. 12 1 government actors imputed to him the political opinion his 2 mother is deemed to have had by virtue of the forced 3 sterilization.4 4 cannot claim a valid nexus to a protected ground even if the 5 hardship he suffered was sufficiently severe to constitute 6 persecution. 7 We therefore agree with the BIA that Jiang Nothing in In re Chen is inconsistent with our 8 conclusion. In In re Chen, the petitioner s father--a 9 Christian minister--was dragged through the streets dozens 10 of times while in captivity and on one occasion was burned 11 badly when he was thrown into a bonfire of burning bibles. 12 20 I. & N. Dec. at 19-20. 13 traumatic events aggravated the emotional impact of the harm The BIA concluded that these The IJ immediately asked a clarifying question: Did anything bad happen to you when you were in China? Jiang responded: No. This equivocal mention of the village cadre was not the basis for the IJ s original grant of humanitarian asylum which Jiang seeks reinstate; the IJ s view was that the family s being placed in a precarious economic position that constitute[d] persecution was the only winning theory upon which the record evidence could justify asylum. 4 There is certainly no evidence that Jiang--a three month old baby when his mother was forcibly sterilized-engaged in any other resistance against the government s coercive population control policy; such resistance supplies a nexus to political opinion under 8 U.S.C. § 1101(a)(42). See Shi Liang Lin, 2007 WL 2032066, at *10. 13 1 Chen himself suffered--repeated physical abuse because of 2 his family s religion while he was in Chinese government 3 custody as a boy. 4 persecution so severe as to justify a discretionary grant of 5 asylum for humanitarian reasons irrespective of the 6 likelihood of future persecution. 7 happened to his father, and given the manner in which he 8 spent much of his boyhood, his fear of repatriation is 9 understandable. ). The circumstances constituted past Id. at 21 ( Given what Jiang s case is not analogous: (1) Jiang 10 suffered no abuse at the hands of government officials and 11 (2) there is no indication that the government treated Jiang 12 as if he shared the characteristic that triggered his 13 parent s persecution. 14 The persecution of an individual such as Jiang s mother 15 may stir anguish among all of her friends, relatives, and 16 associates, and may bring economic loss for the family; but 17 nothing in our precedent or in the BIA s suggests that these 18 consequences can constitute persecution giving rise to 19 refugee status for any of those people unless they share--or 20 are imputed to share--the characteristic that motivated the 21 persecution. 22 14 * 1 * * 2 3 4 For the foregoing reasons, we deny the petition for review. 15

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