                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4167




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-4167
                                    ____________

                                     FANG LIN,

                                           Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                           Respondent
                                    ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                               (Board No. A77 957 870)
                      Immigration Judge: Donald Vincent Ferlise
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 10, 2008

          Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

                               (Filed: March 20, 2008)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Appellant Fang Lin petitions for review of an order of the Board of Immigration

Appeals (“BIA”) denying her application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). For the reasons that follow,

we will grant the petition in part and deny it in part.

                                               I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Petitioner was born on August 4, 1982, in Fujian, China, and is a Chinese national.

In 2000, she began dating Jian Xin Dan. Though they lived together, the couple was

denied a marriage certificate because Petitioner was underage. Shortly after this, local

“family planning cadres” told Petitioner that she was violating family planning policy and

told her not to get pregnant. When Petitioner refused to comply with their demands, they

assaulted her boyfriend and escorted her to the local hospital where a doctor forcibly

inserted an intrauterine device (“IUD”). In April 2001, officials told Petitioner to report

for a gynecological exam. About a month earlier, her IUD had fallen out, and fearing that

this would be discovered, Petitioner went into hiding. When the family planning cadres

were unable to locate her, they threatened to destroy her home if she failed to report for

her exam. In June 2001, Petitioner fled to the United States.

       Immigration Judge (“IJ”) Donald V. Ferlise found Petitioner credible, but held that

as a matter of law, she was not a “refugee” under the Immigration and Nationality Act

(“INA”). The BIA adopted the IJ’s credibility determination, but affirmed the decision of



                                               2
the IJ on the grounds that the harm alleged did not rise to the level of persecution required

to qualify for relief. The BIA did not clearly address the question of whether Petitioner

was a “refugee.” On September 21, 2006, Petitioner timely filed the petition presently

before us.1

                                             II.

       We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C.

§ 1252. Where the BIA adopts some of the findings of the IJ and makes additional

determinations as well, we will review the decisions of both the BIA and the IJ. Santana

Gonzalez v. Att’y Gen., 506 F.3d 274, 276 (3d Cir. 2007).

       We review legal determinations of the BIA de novo. Escobar v. Gonzales, 417

F.3d 363, 365 (3d Cir. 2005). Such de novo review of the BIA’s legal determinations is

“subject to established principles of deference” as explained by the Supreme Court in

Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984), and as interpreted by this Court.

See Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). Whether a petitioner has

established past persecution or a well-founded fear of future persecution is a question of

fact, and must be upheld if supported by “substantial evidence” in the record. Yu v. Att’y




       1
        The BIA affirmed the IJ’s denial of Petitioner’s CAT claim on the grounds that
she had not shown that it was more likely than not that she would be tortured if returned
to China. While Petitioner does request CAT relief, her brief barely mentions this claim
and never explains why the IJ or the BIA erred in their determinations. Where a
petitioner “does not press [a CAT] claim[] on appeal” we will therefore “deem th[e]
claim[] waived.” Konan v. Att’y Gen., 432 F.3d 497, 500 & n.2 (3d Cir. 2005).

                                              3
Gen., 513 F.3d 346, 348 (3d Cir. 2008). We treat the BIA’s findings of fact as

“conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir.

2003).

                                              III.

         On appeal, Petitioner argues (1) that the IUD insertion, threats, and other actions

taken against her, are harmful enough to “rise to the level of persecution” and (2) that this

harm was on account of a “protected ground,” in this case political opinion, because her

resistance to the insertion of the IUD satisfies the “other resistance” prong of 8 U.S.C.

§ 1101(a)(42)(B). Both (1) and (2) must be satisfied for Petitioner to prevail. Konan, 432

F.3d at 501.

         Asylum or withholding of removal can only be granted to a “refugee,” defined as a

person unable or unwilling to return to her own country “because of past persecution or

because of a well-founded fear of future persecution on account of his race, religion,

nationality, membership in a particular social group, or political opinion.” Id. (quoting

Gao v. Ashcroft, 299 F.3d 266, 271 (2002)). In order to make out a claim for relief, an

applicant must demonstrate (1) an act or acts of harm that rises to the level of persecution;

(2) that is “on account of” one of the statutorily-protected grounds; and (3) is committed

by the government or forces the government is either unable or unwilling to control. Id.




                                               4
       It is a petitioner’s burden to establish that the harm alleged “rises to the level of

persecution.” Persecution includes “threats to life, confinement, torture, and economic

restrictions so severe that they constitute a threat to life or freedom.” Yu, 513 F.3d at 348.

Persecution “does not encompass all treatment that our society regards as unfair, unjust,

or even unlawful or unconstitutional.” Fatin v. I.N.S., 12 F.3d 1233, 1240 & n.10 (3d Cir.

1993). A law or practice must be “extreme” in nature to rise to the level of persecution.

Chen v. Ashcroft, 381 F.3d 221, 231 (3d Cir. 2004).

       An applicant must also show that the persecution she alleges was on account of a

“protected ground.” Lukwago, 329 F.3d at 167. Pursuant to a 1996 amendment of the

INA, one of the ways an applicant may establish a “protected ground” is by showing that

she was required to abort a pregnancy, was forcibly sterilized, or “for other resistance to a

coercive population control program.” 8 U.S.C. § 1101(a)(42)(B).2




       2
           The full text of this amendment reads as follows:

       For purposes of determinations under this chapter, 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, 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.

Illegal Immigration Reform and Immigrant Responsibility Act, § 601(a)(1), Pub. L. No.
104-208, 110 Stat. 3009. (emphasis added).

                                               5
       The IJ denied Petitioner’s claim as a matter of law because he was “unwilling to

expand the definition of refugee to an individual who is unwillingly made to wear an

IUD.” Petitioner appealed this decision to the BIA, which quoted the IJ’s language, as

well as the “other resistance to a coercive population control program” language of 8

U.S.C. § 1101(a)(42). However, the BIA did not expressly adopt or repudiate the IJ’s

determination that a petitioner who had an IUD forcibly inserted could not qualify as a

“refugee” for “other resistance” to China’s coercive population control policy. Instead,

the BIA relied on a alternate ground, finding that as a factual matter, the level of harm

alleged by Petitioner did not “rise to the level of persecution,” relying on Fatin, 12 F.3d at

1240. The BIA acknowledged that forcible insertion of an IUD was an “offensive

intrusion into the private sphere of life” that caused “some harm.” It went on to state that

while forcible IUD insertion could “under some set of circumstances not before us”

constitute persecution, the harm here did not “rise to the level of persecution.”

       While our standard of review is “extraordinarily” deferential to the BIA, “the

availability of judicial review (which is specifically provided in the INA) necessarily

contemplates something for us to review.” Abdulai v. Ashcroft, 239 F.3d 542, 555 (3d

Cir. 2001). When the BIA fails to adequately explain its reasoning, such that it becomes

“impossible for us to review its rationale,” we will vacate and remand for further

explanation of the decision. Id.




                                              6
       Here, the BIA states, in conclusory fashion, that Petitioner suffered “some harm,”

but that it was not “sufficient to rise to the level of persecution.” Instead of providing an

explanation for this conclusion, the BIA cursorily asserts that insertion of an IUD could

under “some set of circumstances” create a harm rising to the level of persecution, but

just not in the present case. The BIA does not give any further explanation of how the

present case is insufficient, or what “set of circumstances” might raise a forcible IUD

insertion to the level of persecution. The BIA does not state with specificity which facts

it considered in reaching its decision that the level of harm was not sufficient to be

considered persecution. The BIA did not support its decision by pointing to other

hypothetical scenarios and distinguishing them from the instant case. Without such

examples or explanation, we cannot meaningfully review the BIA’s finding that the

instant case falls short of its criteria for persecution.

       Because a dearth of explanation and reasoning “makes it impossible to

meaningfully review this decision,” we will vacate and remand “so that the BIA can

further explain its reasoning.” Konan, 432 F.3d at 502 (citations omitted). We take no

position on “whether substantial evidence could support” a finding in this particular case

that forcible IUD insertion, threats, and other alleged harms did not “rise to the level” of

persecution, but rather “leave [that] task to the BIA” to determine afresh. Id. at 502 n.3.

Although Petitioner asks us reach the merits of this issue, in observation of our well-

established principles of deference, we will allow the agency an opportunity to revisit this



                                                7
issue and explain its decision in full. See, e.g., Butt v. Gonzales, 429 F.3d 430, 438 (3d

Cir. 2005) (“[A]lthough Butt asks us also to rule in his favor on the merits of his asylum

claim, we decline his invitation in order to allow the agency the opportunity to review the

substance of that claim.”).

       On remand, the BIA should therefore (1) reconsider whether the harm alleged rises

to the level of persecution, explaining its reasoning in detail, as discussed supra. Upon

remand, the BIA should also (2) determine whether an applicant who is forcibly inserted

with an IUD, and who subsequently flees the country to seek asylum in the United States,

can satisfy the “protected ground” requirement via “other resistance to a coercive

population control program” under 8 U.S.C. § 1101(a)(42)(B).3 Because the BIA’s

decision never clearly addresses this issue, it should be addressed on remand. Konan, 432

F.3d at 502 (“[i]f the BIA failed to consider [a petitioner]’s claim of persecution based on

[a particular protected ground], the case must be remanded.” (citing Vente v. Gonzales,

415 F.3d 296 (3d Cir. 2005))).




       3
        Although this question has been addressed to varying extents by our sister circuits,
see Yang v. Att’y Gen., 418 F.3d 1198, 1203-04 (11th Cir. 2005), it appears to be
unresolved in this Circuit. See Fang v. Ashcroft, 114 Fed. Appx. 486, 488 (3d Cir. 2004)
(remanding to the BIA in part because “[a]s to the forced implantation of the IUD, the
government concedes before this court that the Board and the Circuit Courts have not
specifically addressed whether a woman who unwillingly acquiesced to obtaining an IUD
has been persecuted [under the ‘other resistance’ clause].” (internal quotation marks
omitted)) (nonprecedential). Because Petitioner’s brief before the BIA argued that she
had suffered past persecution “from the coercive birth control policy,” this claim was
properly before the BIA and should have been addressed in its decision.

                                             8
                                            IV.

       For the foregoing reasons, we will grant the petition with respect to the asylum and

withholding of removal claims, vacate the BIA’s order, and remand for further

consideration consistent with this opinion. We will deny the petition with respect to the

CAT claim.




                                             9
