06-4580-ag
Chao Qun Jiang v. BCIS




                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       August Term, 2007

(Argued: December 10, 2007                                             Decided: March 14, 2008)

                                     Docket No. 06-4580-ag

                            _____________________________________

                                      CHAO QUN JIANG,

                                                                                        Petitioner,
                                              –v.–

                  BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES,

                                                                                      Respondent.

                            _____________________________________

                  Before:    POOLER, SACK and SOTOMAYOR, Circuit Judges.

                            _____________________________________

        The Board of Immigration Appeals (“BIA”) affirmed a decision of the Immigration Judge
(“IJ”) concluding that petitioner was ineligible for asylum and withholding of removal on the
basis of the persecutor bar in 8 U.S.C. § 1158(b)(2)(A)(i) and 8 U.S.C. § 1231(b)(3)(B)(i),
because she was found to have assisted in the forced insertion of intrauterine devices (“IUDs”).
Consistent with our decision in Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007), because
the BIA has not yet articulated in a precedential decision its position regarding whether and under
what conditions involuntary IUD insertion constitutes persecution, and because the BIA has
taken inconsistent positions on this issue, we GRANT the petition for review, VACATE the
order of the BIA, and REMAND for further proceedings consistent with this opinion.

                                                     THEODORE N. COX (Andy Wong, on the
                                                     brief), New York, New York, for petitioner.

                                                     ADA E. BOSQUE, Attorney, Office of
                                                     Immigration Litigation, U.S. Department of
                                                      Justice (Peter D. Keisler, Assistant Attorney
                                                      General; Christopher C. Fuller, Senior
                                                      Litigation Counsel, on the brief),
                                                      Washington, DC, for respondent.

SOTOMAYOR, Circuit Judge:

       Petitioner Chao Qun Jiang (“Jiang”) petitions for review of the September 27, 2006

decision by the Board of Immigration Appeals (“BIA”) affirming and adopting the January 15,

2003 decision of Immigration Judge (“IJ”) Philip L. Morace that denied her application for

asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”),1

based on a finding that she assisted in the persecution of others and failed to establish a

likelihood of torture. In re Chao Qun Jiang, No. A78 386 894 (B.I.A. Sept. 27, 2006), aff’g No.

A78 386 894 (Immig. Ct. N.Y. City Jan. 15, 2003). In addition, the IJ denied Jiang’s motion to

reopen and remand for consideration of new evidence. Id. Jiang principally argues that her

activities as an employee of the local family-planning clinic, which included on at least one

occasion standing guard over women scheduled to undergo forced insertion of intrauterine

devices (“IUDs”), did not amount to assistance in the persecution of others and that she therefore

is not subject to the persecutor bar under 8 U.S.C. §§ 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i).

Because the BIA has not yet articulated in a precedential decision its position regarding whether

and under what conditions involuntary insertion of an IUD constitutes persecution, and because

the BIA has taken inconsistent positions on this issue, we proceed consistent with our decision in

Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007), and GRANT the petition for review,



       1
          United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85;
see also 8 C.F.R. § 1208.16(c) (implementing the CAT).

                                                  1
VACATE the order of the BIA, and REMAND for further proceedings consistent with this

opinion.

                                         BACKGROUND

       Jiang, a citizen of the People’s Republic of China, entered the United States on or about

September 25, 2000. On January 2, 2001, she was served with a Notice to Appear and placed in

removal proceedings. Jiang conceded removability and applied for asylum, withholding of

removal, and relief pursuant to the CAT. The undisputed facts below are taken from Jiang’s

testimony before the IJ, as well as documents submitted with her application for relief.

       Prior to leaving China, Jiang worked for approximately ten months at a local family-

planning clinic in her village. Although her primary tasks were clerical, including updating

household registries and collecting other intake information, on two occasions Jiang worked a

night shift where she was tasked with guarding women who had been captured by family-

planning authorities and were being held in the clinic overnight to undergo pregnancy

examination or a family-planning procedure. Jiang stated that none of the women she was

guarding on the first shift were pregnant; instead, she stated that they had “lost their ring[s]”

indicating that the IUDs they had been required to insert under the family-planning policies were

no longer in place. On the second shift, Jiang was charged with guarding three women, one of

whom was seven months pregnant and scheduled to receive a forced abortion, and two others

who were scheduled for IUD insertions. The pregnant woman begged Jiang to let her escape,

and Jiang ultimately decided to release all three women. Jiang testified that it was a crime for her

to release the women, and she fled China to avoid being punished.

       Based on this testimony, the IJ concluded, inter alia, that Jiang was statutorily ineligible


                                                  2
for asylum and withholding of removal for having assisted in the persecution of others by, “on at

least one occasion serv[ing] as a guard, essentially, over individuals who were being subjected to

the coercive population control policy, including perhaps abortions and sterilizations.” In

addition, the IJ found that Jiang did not establish that she would more likely than not be tortured

if returned to China and denied her application for relief under the CAT.

       Jiang appealed to the BIA and, while her appeal was pending, she filed a motion to

reopen based on (1) the birth of a second son in the United States, and (2) new evidence of forced

sterilization of individuals who have had two children, whether in China or abroad. On

December 28, 2004, the BIA affirmed and adopted the IJ’s decision insofar as it found Jiang

statutorily ineligible for asylum under the persecutor bar and ineligible for relief under the CAT.

The BIA also denied Jiang’s motion to reopen because she failed to establish prima facie

eligibility for relief. Jiang filed a petition for review in this Court, but on December 19, 2005,

the parties agreed to vacate and remand to the BIA for clarification regarding, inter alia,

“whether an involuntary insertion of an IUD constitutes persecution, and, if not, whether

petitioner can be deemed to have assisted or participated in the persecution of others based on

petitioner’s act of guarding detainees who allegedly had been scheduled to undergo forced IUD

insertions.”

       On remand, the BIA again adopted and affirmed the IJ’s decision. It found that Jiang

“clearly assisted or participated in the persecution of others by, inter alia, standing guard at a

‘family planning clinic’ in China over detainees who were scheduled to have [IUDs] inserted

against their will.” The BIA concluded that these actions constituted persecution because:

       Only women who opposed and resisted the Chinese policy of forcible birth


                                                  3
       control would have been detained. Only women who opposed or partially
       opposed that policy would have IUDs forcibly inserted. Those women resisted
       the coercive population control of the Chinese government and were persecuted
       by, at a minimum, the combination of detention, the forcible insertion of IUDs,
       and the implicit threat of continued similar treatment.

The BIA also affirmed the IJ’s decision that Jiang did not establish eligibility for CAT relief

based on her alleged fear of persecution in a Chinese prison and her alleged fear of sterilization if

returned to China. Finally, the BIA denied Jiang’s motion to reopen for consideration of new

evidence because the documents did not demonstrate prima facie eligibility for relief under the

CAT. This petition followed.2

                                          DISCUSSION

       “Where, as here, the BIA adopts and affirms the decision of the IJ, and supplements the

IJ’s decision, we review the decision of the IJ as supplemented by the BIA.” Islam v. Gonzales,

469 F.3d 53, 55 (2d Cir. 2006). We review de novo the legal conclusion that Jiang’s actions

make her a “persecutor” under the immigration statutes. See Xu Sheng Gao v. U.S. Att’y Gen.,

500 F.3d 93, 98 (2d Cir. 2007).

       This Court recently remanded a case in which the BIA denied an application for asylum

and withholding of removal based on its conclusion that forcible IUD insertion does not

constitute persecution. Ying Zheng v. Gonzales, 497 F.3d 201, 202 (2d Cir. 2007). The panel in

Ying Zheng determined that remand was appropriate for two principal reasons. First, the BIA has

“not yet opined on this issue in a published, precedential opinion, thus depriving the bench, the

bar and potential asylum applicants of guidance concerning whether and how they might



       2
          This Court has received and considered petitioner’s letter containing post-argument
authority submitted pursuant to Federal Rule of Appellate Procedure 28(j).

                                                  4
approach the issue.” Id. at 203. Second, the BIA “has taken contrary positions on this issue” by

holding in Ying Zheng that involuntary insertion of an IUD does not constitute persecution but

assuming in at least one other case that it does. See id. (citing Yahong Zheng v. Gonzales, 409

F.3d 804 (7th Cir. 2005) (stating that the BIA “assumed that the involuntary insertion of IUDs

constitutes persecution pursuant to a ‘coercive population control program’”)). Ying Zheng

remanded the case to the BIA “so that it might articulate its position concerning whether and

under what conditions the forced insertion of an IUD constitutes persecution.” Id. at 203-04.

       We now confront a case in which the BIA has affirmed the IJ’s holding that forcible IUD

insertion constitutes persecution, at least when accompanied by some period of detention.

Because the factual background provided in unpublished BIA opinions is sparse, we are unable

to determine whether previous BIA decisions rejected claims of persecution based on forcible

IUD insertion because they did not involve allegations of detention.3 To further the goals of

uniformity and fairness that prompted our remand on the same issue in Ying Zheng, we remand

this case to the BIA for it to articulate a consistent position on “whether and under what

conditions forced insertion of an IUD constitutes persecution.”4 Id. In doing so, we urge the

BIA to apply consistently the standard for what conduct constitutes “persecution” for purposes of

establishing refugee status, see 8 U.S.C. § 1101(a)(42), and for purposes of determining whether



       3
         Presumably, any “forcible” insertion of an IUD presupposes a restraint of liberty, if
only during the time of the procedure. We therefore question the BIA’s basis for considering
detention as a separate element of the alleged persecution in this particular case.
       4
         Because we remand to the BIA on this basis, we need not address the remaining
arguments Jiang raises in her petition for review, namely, whether the IJ and BIA misapplied the
burden of proof and whether Jiang’s alleged involvement in forced IUD insertion at the family-
planning clinic was too remote to constitute assistance in persecution.

                                                 5
an individual who “ordered, incited, assisted, or otherwise participated in” that conduct would be

subject to the persecutor bar, see 8 U.S.C. §§ 1158(b)(2)(A)(i) & 1231(b)(3)(B)(i), or to explain

adequately its reasons for not doing so.5 We find it troubling that, in the context of an

application for asylum, the BIA concluded that forcible IUD insertion does not constitute

persecution, but then applied the persecutor bar to an applicant based on a conclusion that

forcible IUD insertion does constitute persecution because a period of detention preceded it.

       For the foregoing reasons, the petition for review is GRANTED; the decision of the BIA

is VACATED; and the case is REMANDED for further proceedings consistent with this opinion.




       5
          Indeed, to establish status as a “refugee” under 8 U.S.C. § 1101(a)(42), an alien must
demonstrate “persecution or a well-founded fear of persecution on account of” a protected
ground. The same definition of “refugee” excludes “any person who ordered, incited, assisted or
otherwise participate in the persecution of any person on account of” a protected ground. Id. We
see no reason why use of the term “persecution” within the same definition of the statute would
have two different meanings. Cf. U. S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., 508
U.S. 439, 460 (1993) (requiring party to rebut the presumption that “identical words used in
different parts of the same act are intended to have the same meaning” (emphasis added) (internal
citation omitted)).

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