     08-5785-ag
     Xia Huang v. Eric Holder



 1                                  UNITED STATES COURT OF APPEALS

 2                                          FOR THE SECOND CIRCUIT

 3                                             _______________

 4                                             August Term, 2009

 5   (Argued: November 23, 2009                                          Decided: January 12, 2010)

 6                                           Docket No. 08-5785-ag

 7                                             _______________

 8                                              XIA FAN HUANG ,
 9
10                                                                                           Petitioner,

11                                                  —v.—

12                       ERIC H. HOLDER JR., UNITED STATES ATTORNEY GENERAL,*
13
14                                                                                         Respondent.

15                                             _______________

16   Before:

17                              FEINBERG , WALKER and KATZMANN , Circuit Judges.
18                                             _______________

19             Petition for review of a decision of the Board of Immigration Appeals (“BIA”) affirming

20   the May 24, 2005 decision of Immigration Judge (“IJ”) Douglas Schoppert, denying Petitioner

21   Xia Fan Huang’s applications for asylum, withholding of removal, and relief under the

22   Convention Against Torture (“CAT”). In re Xia Fan Huang, No. A096 395 211 (B.I.A. Oct. 28,

23   2008), aff’g No. A096 395 211 (Immig. Ct. N.Y. City May 24, 2005). The petition for review is

24   denied.

               *
             Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H.
     Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as
     respondent in this case.
 1                                           _______________

 2                      DAVID X. FENG , New York, New York, for Petitioner.
 3
 4                      KILEY L. KANE, Trial Attorney (Michael F. Hertz, Acting Assistant Attorney
 5                         General, Civil Division, Jennifer L. Lightbody, Senior Litigation Counsel,
 6                         of counsel), Office of Immigration Litigation, United States Department of
 7                         Justice, Washington, D.C., for Respondent.
 8
 9                                           _______________

10   PER CURIAM :

11          This case calls upon us in principal part to determine whether the opinion of the Board of

12   Immigration Appeals (“BIA”) in In re M-F-W & L-G, 24 I. & N. Dec. 633 (BIA 2008),

13   describing when forced insertion of an intrauterine device (“IUD”) constitutes persecution, is a

14   permissible interpretation of the Immigration and Nationality Act (“INA”). Petitioner Xia Fan

15   Huang seeks review of a decision of the Board of Immigration Appeals affirming the May 24,

16   2005 decision of Immigration Judge (“IJ”) Douglas Schoppert, denying her applications for

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

18   re Xia Fan Huang, No. A096 395 211 (B.I.A. Oct. 28, 2008), aff’g No. A096 395 211 (Immig.

19   Ct. N.Y. City May 24, 2005). We hold that the agency’s interpretation is entitled to deference,

20   and therefore deny the petition for review.

21                                           BACKGROUND

22          Xia Fan Huang is a native and citizen of the People’s Republic of China (“China”) who

23   entered the United States in June 2004 without valid entry documents and was placed in removal

24   proceedings. In December 2004, Huang submitted applications for asylum, withholding of

25   removal, and relief under the Convention Against Torture. In the statement attached to her

26   application, Huang claimed that (1) she feared persecution because her father is wanted by the




                                                     2
 1   local public security bureau because he practices Falun Gong, (2) she had an IUD inserted

 2   following the birth of her only child, but fears persecution because she had it removed by a

 3   doctor in the United States, (3) although she is divorced and her husband has custody of their

 4   only son, she will be unable to have children if she remarries (which she desires), (4) she will be

 5   forced to undergo an abortion or sterilization if she becomes pregnant, and (5) she will be

 6   tortured if returned to China because she departed China illegally.

 7          In May 2005, at the conclusion of a hearing on the merits of Huang’s claims, the IJ found

 8   that she had not demonstrated eligibility for relief. The IJ concluded, inter alia, that a forced

 9   IUD insertion does not constitute persecution.1 Huang filed a timely appeal with the BIA,

10   arguing that a forced IUD insertion amounts to persecution. In October 2006, the BIA dismissed

11   Huang’s appeal in a non-precedential opinion. The BIA held that while a forced IUD insertion is

12   “an intrusion on the respondent’s body,” it does not rise to the level of persecution. With regard

13   to Huang’s fear of future persecution, the BIA concluded that her claim that she would be forced

14   to undergo an abortion or sterilization if she became pregnant with a second child was too

15   speculative to merit relief because Huang had only one child, was not married, and was not

16   pregnant.

17          Huang timely petitioned for review of the BIA’s decision. In September 2007, this Court

18   granted Huang’s petition and remanded the case to the BIA for reconsideration in light of our

19   prior decision in Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007). See Xia Fen Huang v.

20   U.S. Dep’t of Justice, No. 06-5420-ag, 248 Fed. App’x 214 (2d Cir. Sept. 20, 2007). On remand,



            1
              Huang has abandoned or waived any challenge to the agency’s adjudication of her
     claims that she would be persecuted because her father practices Falun Gong or because she left
     China illegally. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
     She has also waived any challenge to the agency’s denial of CAT relief. Id. Therefore, we do
     not discuss these claims.

                                                       3
 1   the BIA again dismissed Huang’s appeal. The BIA found that “insertion of an IUD does not rise

 2   to the level of harm necessary to constitute persecution, absent some aggravating circumstance,

 3   which is not present in this case. Moreover, the respondent has not shown that the insertion of an

 4   IUD was or would be on account of a protected ground.” In re Xia Fan Huang, No. A096 395

 5   211 (B.I.A. Oct. 28, 2008) (citing Matter of M-F-W- & L-G, 24 I. & N. Dec. 633 (BIA 2008)).

 6          Huang timely petitioned this Court for review of the BIA’s decision.

 7                                             DISCUSSION

 8          We have jurisdiction to review final orders of removal. See 8 U.S.C. § 1252(d). When

 9   the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the

10   BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Here, following Huang’s

11   petition for review of the BIA’s decision denying relief, her case was remanded for the limited

12   purpose of allowing the BIA to reconsider its decision in light of this Court’s holding in Ying

13   Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007). On remand, the BIA issued a brief opinion

14   addressing only the issue presented in Ying Zheng, i.e., whether the insertion of an IUD

15   constitutes persecution, and leaving intact the remainder of its conclusions in its original

16   decision. Therefore, we review the BIA’s original opinion as modified by its subsequent

17   decision, which constitutes the agency’s final order of removal. See 8 U.S.C. § 1252(d). We

18   review the agency’s factual findings under the substantial evidence standard. See id. §

19   1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo

20   questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey,

21   529 F.3d 99, 110 (2d Cir. 2008).

22          The Attorney General may grant asylum to an alien if he determines that the alien is a

23   “refugee.” 8 U.S.C. § 1158(b)(1)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987).

24   Section 101(a)(42) of the Immigration and Nationality Act defines a refugee as one who has

                                                       4
 1   suffered persecution, or has a well-founded fear of future persecution, on account of race,

 2   religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §

 3   1101(a)(42). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added

 4   the following language to the definition of a refugee:

 5          For purposes of determinations under this chapter, a person who has been forced to abort
 6          a pregnancy or to undergo involuntary sterilization, or who has been persecuted for
 7          failure or refusal to undergo such a procedure or for other resistance to a coercive
 8          population control program, shall be deemed to have been persecuted on account of
 9          political opinion, and a person who has a well founded fear that he or she will be forced
10          to undergo such a procedure or subject to persecution for such failure, refusal, or
11          resistance shall be deemed to have a well founded fear of persecution on account of
12          political opinion.
13
14   Id. (emphasis added).

15          In Ying Zheng, 497 F.3d at 203-04, we remanded a case to the BIA to articulate, in a

16   published, precedential opinion, its position concerning whether, and under what conditions, the

17   forced insertion of an IUD constitutes persecution. The BIA did so in In re M-F-W & L-G, 24 I.

18   & N. Dec. 633 (BIA 2008). In that case, the BIA held that the amendment to the INA creates two

19   categories of aliens who are deemed refugees per se, in that “‘their political opinion exists de

20   jure rather than as a matter of fact on which the applicant bears the burden of proof’”: those who

21   have been forced to abort a pregnancy, and those who have been forced to undergo involuntary

22   sterilization. Id. at 635-36 (quoting Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 307 (2d

23   Cir. 2007) (en banc)). The BIA concluded that neither category applies to a forced IUD

24   insertion, as being forced to use an IUD does not amount to being forced to abort a pregnancy or

25   being sterilized. Id. at 636. According to the BIA, IUD use should not be treated as the

26   equivalent of sterilization because “to sterilize” means “to make sterile” and “sterile” means

27   “incapable of sexual reproduction.” Id. This definition implies that sterilization is permanent

28   and leaves one permanently incapable of having children. Id. Unlike sterilization, IUD use is a


                                                      5
 1   “temporary measure meant to provide for birth planning and not to remove all possibility of

 2   future birth opportunities.” Id.

 3          The BIA also held that, beyond the two categories of those who are deemed refugees per

 4   se, the amendment includes in the definition of a refugee one who establishes that (1) she

 5   otherwise resisted China’s family planning policy, (2) she was persecuted or has a well-founded

 6   fear of future persecution, and (3) the persecution was or would be because of her resistance to

 7   the family planning policy. Id. at 637. In terms of “other resistance to a coercive population

 8   control program,” the BIA held that removing an IUD or failing to attend a mandatory

 9   gynecological appointment constitutes such resistance because it thwarts the goals of the family

10   planning policy. Id. at 638. As to persecution, the BIA held that a forced IUD insertion, without

11   aggravating circumstances, does not constitute persecution. Neither does reinsertion of an IUD

12   after the removal of an IUD (without aggravating circumstances), or regularly required

13   gynecological exams. Id. at 640-42. Finally, even if a forced IUD insertion is accompanied by

14   aggravating circumstances sufficient to rise to the level of persecution, under the third prong of

15   the analysis a petitioner must still establish that the persecution is because of her resistance to

16   China’s family planning policy. Id. at 642. In terms of the required nexus, the BIA held that an

17   IUD that is reinserted not to punish the alien’s resistance to the family planning policy, but

18   merely because reinsertion is standard procedure in China, even if an IUD falls out on its own, is

19   not sufficient to establish the required nexus. Id. at 643. Therefore, the BIA considered whether,

20   in the case before it, the alien’s IUD was inserted to punish her for some earlier resistance to

21   China’s population control program, or instead as a routine part of the family planning policy.

22   Id.

23          On appeal, Huang argues that In re M-F-W & L-G was wrongly decided and is not

24   entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

                                                        6
 1   U.S. 837, 842-44 (1984). Huang argues that the cumulative effect of having an IUD inserted and

 2   regularly examined constitutes sterilization.

 3           Although an IUD is not permanent sterilization, it prevented Ms. Huang from becoming
 4           pregnant again and therefore, left her effectively sterilized so long as it remained in place
 5           . . . . there is absolutely nothing within the word “incapable” that mandates permanence.
 6           The IUD rendered Ms. Huang “incapable of having children.” Thus, she was, under the
 7           Board’s own use of a standard English definition, sterilized.
 8
 9   Pet’r Br. 22. Huang also argues that her forced IUD insertion, an invasive procedure that left a

10   device in her body, constitutes persecution because it is a “flagrant violation of fundamental

11   rights, including the right to reproductive choice and bodily integrity.” Id. 15, 20-21. In the

12   alternative, she argues that even if her forced IUD insertion does not constitute persecution, the

13   cumulative effect of the insertion plus invasive quarterly check-ups does rise to the level of

14   persecution.

15           When reviewing the BIA’s interpretation of the INA, we employ the familiar two step

16   inquiry set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at

17   842-44. Under this analysis, we first ask “whether Congress has directly spoken to the precise

18   question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as

19   well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at

20   842-43. If, however, “the statute is silent or ambiguous with respect to the specific issue, the

21   question for the court is whether the agency’s answer is based on a permissible construction of

22   the statute.” Id. at 843. To uphold the agency’s construction, we “need not conclude that the

23   agency construction was the only one it permissibly could have adopted . . . or even the reading

24   the court would have reached if the question initially had arisen in a judicial proceeding.” Id. at

25   843 n. 11. Instead, we will defer to the agency’s interpretation as long as that interpretation is

26   “‘reasonable.’” Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 116 (2d Cir. 2007) (quoting

27   Chevron, 467 U.S. at 844). In other words, even where we think that an alternative version is

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 1   preferable, binding precedent dictates that we are without authority to impose it if the agency’s

 2   ruling is permissible. We thus rule within narrow parameters.

 3          In this case, Congress has not determined whether a person who has been forced to have

 4   an IUD inserted is a refugee, whether an IUD insertion constitutes sterilization, or whether a

 5   forced IUD insertion constitutes persecution. Therefore, we proceed to step two of the Chevron

 6   analysis. Under step two, we conclude that the BIA’s conclusion that an involuntary IUD

 7   insertion is not an involuntary sterilization is permissible. The BIA’s reasoning that sterilization

 8   makes one permanently incapable of having children, whereas an IUD is a temporary measure, is

 9   reasonable. We therefore conclude that the BIA’s interpretation that a forced IUD insertion is

10   not a per se ground for granting asylum is entitled to deference.

11          As to the “other resistance” prong of the refugee definition, we need not consider

12   Huang’s challenge to the BIA’s determination that involuntary IUD insertion, or involuntary IUD

13   insertion plus mandatory gynecological check-ups, does not constitute persecution because

14   Huang does not challenge the BIA’s conclusion that she failed to establish that the insertion of

15   the IUD was or would be on account of her resistance to China’s family planning policy. She

16   also does not challenge the BIA’s determination that the persecution at issue must be the result of

17   resistance to the family planning policy in order to fall under the terms of statute. Therefore, any

18   such challenge is deemed waived. See Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.

19          We have considered all of Huang’s other arguments and find them without merit.

20                                            CONCLUSION

21          For the foregoing reasons, the petition for review is denied.2




            2
               As we have completed our review, the pending motion for a stay of removal in this
     petition is dismissed as moot.

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