                                                             [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             SEPTEMBER 2, 2009
                            No. 09-10832                     THOMAS K. KAHN
                        Non-Argument Calendar                     CLERK
                      ________________________

                        Agency No. A074-855-742

FENG CHAI YANG,


                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                           (September 2, 2009)

Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.

PER CURIAM:
      In her third appearance before us, Feng Chai Yang, a native and citizen of

China, petitions this Court to review the decision of the Board of Immigration

Appeals that dismissed Yang’s appeal of the denial of her applications for asylum

and withholding of removal. Yang argued that her verbal and physical resistance

to injections by Chinese officials and her removal of two intrauterine devices

implanted by Chinese officials qualified as “other resistance to a coercive

population control program.” INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). On our

first review of the Board’s decision, we remanded for the Board to address whether

Yang’s acts “could be construed as ‘other resistance.’” Yang v. U.S. Att’y Gen.,

418 F.3d 1198, 1205 (11th Cir. 2005). On our second review, we remanded for the

Board to reconcile inconsistent statements in its decision that followed our first

remand. Yang v. U.S. Att’y Gen., No. 06-15843 (11th Cir. Apr. 11, 2007). The

Attorney General argues that the record supports the decision of the Board that

Yang was not persecuted on account of her resistance to a coercive population

control program. We deny Yang’s petition to review the denial of her applications

for asylum and withholding of removal, but we remand the case for the Board to

consider Yang’s motion to reopen.




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                                 I. BACKGROUND

      Our discussion of the background is divided in two parts. We first revisit

Yang’s experiences in China and her flight to the United States. We next discuss

the decision of the Board on the second remand.

         A. Yang’s Experiences in China and Entrance to the United States

      Yang was born in Fuzhou City, China, and she later moved to the Fujian

province and was married. Yang, 418 F.3d at 1200. After the birth of Yang’s

daughter in 1991, family planning officials allegedly forced Yang to have an

intrauterine device inserted. Id. According to Yang, the device caused her

discomfort and problems with her menstrual cycle, and she engaged a private

doctor to remove the device. Id. Yang later discovered she was pregnant with a

second child and hid in another province of China to conceal the pregnancy from

family planning officials. Id. A month after Yang’s husband left China because he

was “fed up with the Chinese government,” Yang gave birth to a son. Id. Yang

testified that officials forced her to pay a fine for violating the population control

program. Id.

      In 1996, Yang was forced to undergo a procedure that she referred to as an

“experimental medical sterilization.” Id. Yang alleged that five or six people,

including members of the police and family planning officials, came to her home

and forced her to go to a hospital for the procedure. Id. Yang alleged that she
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cried and shouted for the officials to release her as they forced her onto a hospital

bed. Id. When the doctor began the procedure, Yang allegedly told the doctor that

she was allergic to anesthesia and could not undergo the operation. Id. The doctor

explained to Yang that the procedure required an injection and would not require

anesthesia. Id.

      The next year, after several women allegedly became pregnant after they

received the injection, officials returned to Yang’s home and arrested her for a

second injection. Id. Yang allegedly told the officials about her allergy to

anesthesia and, when given a small dose, Yang broke out in burning bumps all over

her body. Id. Yang alleged that she was forced to return to the hospital a month

later to have a second intrauterine device inserted. Id. The second device also

caused Yang discomfort. Id.

      In 1998, Yang left her two children with her mother in China. Yang entered

the United States illegally through Canada and reunited with her husband in New

York, who was residing there illegally. Id. Yang then had the second intrauterine

device removed. Two years later, Yang became pregnant with a third child and

gave birth in the United States. Id.

                         B. The Second Remand to the Board

      On the second remand, Yang argued that her struggle against the injections

based on her allergy to anesthesia qualified as “other resistance to a coercive
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population control program.” Yang also argued that her resistance to the injections

and removal of the intrauterine devices considered cumulatively established that

her resistance was based on her opposition to a population control program. Yang

moved the Board to remand her case to the immigration judge to accept further

testimony about Yang’s resistance and to consider whether Yang had a well-

founded fear of future persecution based on recent country reports that established

a change in country conditions. Yang attached to her brief the country reports for

China for 2004 through 2007.

      The Board denied Yang relief and ruled that Yang had failed to prove either

that she resisted the population control program or that she was persecuted for

resistance to that program. The Board applied the two-part standard from its

decision in Matter of M-F-W- & L-G-, 24 I&N Dec. 633 (BIA 2008), that an alien

must prove that she resisted or refused to adhere to birth control methods required

by the government and the “claimed persecution [was] because of” that resistance.

Id. at 637–38. The Board found that Yang had resisted the injections because of

her allergy to anesthesia and Yang removed the first intrauterine device to end her

discomfort and side effects caused by the device, not to oppose the population

control program. The Board acknowledged that Yang’s removal of the first

intrauterine device while she was in China could be interpreted as “other

resistance” to the population control program, but the Board ruled that Yang was
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not persecuted for her removal of the device. Yang testified that she was fined for

the birth of a second child, but the Board found that the fine did not amount to

persecution. As to Yang’s removal of the second intrauterine device after she

entered the United States, the Board found that Yang failed to establish that she

would be persecuted for that removal when she returned to China. The Board did

not address Yang’s motion to reopen.

                          II. STANDARD OF REVIEW

      We review the legal conclusion of the Board de novo. Al Najjar v. Ashcroft,

257 F.3d 1262, 1287 (11th Cir. 2001). We review the decision of the Board to

determine whether it is “‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” Mohammed v. U.S. Att’y Gen.,

547 F.3d 1340, 1344 (11th Cir. 2008) (quoting Al Najjar, 257 F.3d at 1284). To

reverse those findings of fact, we must find that the record “‘compels a reversal;

the mere fact that the record may support a contrary conclusion is not enough to

justify a reversal of the administrative findings.’” Id. (quoting Adefemi v.

Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)). “[A]dministrative findings of

fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

                                 III. DISCUSSION

      Yang presents two issues for our consideration. First, Yang challenges the

denial of her application. Second, Yang argues the Board erred by failing to
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address her motion to remand to the immigration judge. We address each

argument in turn.

  A. Yang Failed To Establish That She Qualifies as a Refugee Under the “Other
                   Resistance” Clause of Section 1101(a)(42).

      The Immigration and Nationality Act provides that an alien who has been

forced to have an abortion, has been involuntarily sterilized, or has been persecuted

for refusing those measures or for other resistance to a coercive population control

program is entitled to asylum:

      For purposes of determinations under this Act, 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.

8 U.S.C. § 1101(a)(42).

      This Court has already decided, and Yang does not dispute, that she was not

forcibly sterilized. Yang, 418 F.3d at 1202–03. The only question that remains is

whether the Board erroneously ruled that Yang did not merit relief under the “other

resistance” clause. 8 U.S.C. § 1101(a)(42). This question requires that we address

whether Yang proved that she resisted the population control program and proved

that she was or will be persecuted for her resistance. See Lin v. U.S. Attorney

General, 555 F.3d 1310, 1316 (11th Cir. 2009); Yang v. U.S. Attorney General,
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494 F.3d 1311, 1318–19 (11th Cir. 2007); Huang v. U.S. Attorney General, 429

F.3d 1002, 1004–06 (11th Cir. 2005).

      Substantial evidence supports the finding by the Board that Yang was not

persecuted for resistance to a coercive population control program. The record

establishes that Yang resisted the injections, but not the population control

program. Yang resisted the injections because of her allergy to anesthesia.

Moreover, Yang presented no evidence that she was persecuted on account of her

resistance. See Yang, 494 F.3d at 1318. Although Yang testified that officials

twice forced her to have intrauterine devices implanted, she did not state that she

resisted the procedures. The procedures also did not constitute persecution because

they were intended to implement the population control program and not to punish

Yang for any resistance to that program. See Huang, 429 F.3d at 1010. Even if we

assume that Yang’s removal of the first intrauterine device was an act of resistance,

Yang was not persecuted for that act. See Lin, 555 F.3d at 1316; Yang, 418 F.3d at

1203. Yang was fined instead for the birth of a second child. After Yang’s arrival

in the United States, she removed the second intrauterine device, but she failed to

offer any evidence that she will be persecuted for that act when she returns to

China.

         B. Yang Is Entitled To A Decision About Her Motion To Remand.

      An alien may move to reopen removal proceedings within 90 days after the

final administrative decision. 8 C.F.R. § 1003.2(c)(2). The deadline does not
                                           8
apply if the motion to reopen is based on changed circumstances in the country of

the alien’s nationality that were not known and could not have been presented at

the removal hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). If the

alien moves to reopen while an appeal is pending before the Board, the motion

“may be deemed a motion to remand for further proceedings before the Immigation

Judge” and “may be consolidated with, and considered by the Board in connection

with, the appeal to the Board.” 8 C.F.R. § 1003.2(c)(4).

      The decision whether to consider the motion to reopen in conjunction with

an appeal rests with the Board. Yang moved the Board to remand so Yang could

introduce evidence not previously presented, but the Board failed to mention

Yang’s motion when it dismissed Yang’s appeal. Because the Board failed to

decide whether it would be appropriate to reopen the case, we “remand to the

[Board] for additional investigation or explanation.” INS v. Orlando Ventura, 537

U.S. 12, 16, 123 S. Ct. 353, 355 (2002).

                               IV. CONCLUSION

      We AFFIRM the denial of Yang’s petition, and we REMAND to the Board

to consider Yang’s motion to remand.




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