03-40487-ag
Jiang v. Gonzales


 1                          UNITED STATES COURT OF APPEALS
 2                              FOR THE SECOND CIRCUIT
 3
 4                                August Term, 2004
 5
 6
 7    (Submitted: July 12, 2005                 Decided: August 31, 2007)
 8
 9                              Docket No. 03-40487-ag
10
11    - - - - - - - - - - - - - - - - - - - -x
12
13    TAO JIANG,
14
15                         Petitioner,
16
17                  -v.-
18
19    ALBERTO GONZALES, Attorney General of
20    the United States,*
21
22                         Respondent.
23
24    - - - - - - - - - - - - - - - - - - - -x
25
26          Before:            JACOBS, Chief Judge, PARKER, Circuit
27                             Judge, and HURD, District Judge.**
28
29          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    humanitarian asylum.

2        The petition is denied.

 3                                 Alexander K. Yu, New York, NY,
 4                                 for Petitioner.
 5
 6                                 Gary L. Hayward, Assistant
 7                                 United States Attorney, for
 8                                 Matthew G. Whitaker, United
 9                                 States Attorney for the District
10                                 of Iowa, Des Moines, IA , for
11                                 Respondent.
12
13   DENNIS JACOBS, Chief Judge:
14
15       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.   Jiang cites the forced sterilization

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.    Because Jiang

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.   The petition is denied.


                                    2
1

2                               BACKGROUND

3        Petitioner Tao Jiang, whom the IJ found credible, has

4    given the following account.

5        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.     Three months later, government

8    officials forced Jiang’s mother to undergo sterilization.

9    The sterilization procedure had lingering health effects.

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.     Jiang’s father therefore often stayed away from work

14   to care for the children.     These conditions caused economic

15   hardship for the family.     Jiang was forced to work during

16   his school years, was often absent, lagged behind, and was

17   unable to attend middle school after completing elementary

18   school.     After his father died in 1996, leaving the family

19   unable to support itself, Jiang left China to escape

20   privation.     He testified that his mother also wished to

21   leave China, but was unable to do so.

22           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   Although Jiang had

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).   The IJ concluded that Jiang had not himself

16   been persecuted on account of any political opinion of his

17   mother’s that was imputed to him; rather, because Jiang’s



          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.       The BIA reasoned that Jiang

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.”   The BIA rejected the idea that the post-

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       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).   We review questions of law de novo,

14   including the application of law to undisputed facts.    Uwais

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.   Rotimi v.

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       The agency’s factual findings “are conclusive unless


                                     6
1    any reasonable adjudicator would be compelled to conclude to

2    the contrary.”   8 U.S.C. § 1252(b)(4)(B).   We review such

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.”   Iouri v. Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007)

7    (quoting Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.

8    2003)) (internal quotation marks omitted).

9        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)).   In the analysis of past persecution,

19             a person who has been forced to abort a pregnancy
20             or to undergo involuntary sterilization, or who
21             has been persecuted for failure or refusal to
22             undergo such a procedure or for other resistance
23             to a coercive population control program, shall be
24             deemed to have been persecuted on account of
25             political opinion.
26

                                   7
1    8 U.S.C. § 1101(a)(42).   A showing of past persecution

2    raises a rebuttable presumption of a well-founded fear of

3    future persecution.   Karaj, 462 F.3d at 116.   But even if

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.”   8 C.F.R. §

9    208.13(b)(1)(iii), (A).   See Li Yong Cao v. U.S. Dep’t of

10   Justice, 421 F.3d 149, 156 (2d Cir. 2005).

11

12

13                                II

14       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.     --- F.3d ---,

2    No. 02-4611-ag, 2007 WL 2032066, at *9-10 (2d Cir. July 16,

3    2007) (en banc).     So to the extent Jiang’s claim is based on

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        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.    See Melgar de Torres v. Reno, 191 F.3d 307,

15   313 n.2 (2d Cir. 1999).     That is because an applicant must

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.”     Shi Liang Lin, 2007 WL 2032066, at *8.   At

21   the same time, if an applicant’s family member was harmed as

22   a means of targeting the applicant on some protected ground,


                                     9
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.”).   Moreover, BIA precedent in the context

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.   See, e.g., In re

10   Chen, 20 I. & N. Dec. 16 (B.I.A. 1989).   Also, we have held

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.   See

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
1    after the incident.2   Under Jorge-Tzoc, the question whether

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        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 Jorge-
     Tzoc (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.    Unlike in Jorge-Tzoc,

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.    See

12   2007 WL 2032066, at *8.     Evidence of imputed political

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.”    In re S-P-, 21 I. & N. Dec. 486,

17   492, 496 (B.I.A. 1996).     The government appears to have

18   taken no further action against the family after persecuting

19   Jiang’s mother.3   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   We therefore agree with the BIA that Jiang

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        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.    The BIA concluded that these

13   traumatic events aggravated the emotional impact of the harm



     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.    The circumstances constituted past

4    persecution so severe as to justify a discretionary grant of

5    asylum for humanitarian reasons irrespective of the

6    likelihood of future persecution.   Id. at 21 (“Given what

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.”).    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       For the foregoing reasons, we deny the petition for

4   review.




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