     07-5791-ag
     Lin v. Holder



 1                    UNITED STATES COURT OF APPEALS
 2
 3                          FOR THE SECOND CIRCUIT
 4
 5
 6                            August Term, 2008
 7
 8
 9   (Argued: May 21, 2009                Decided: October 14, 2009)
10
11                          Docket No. 07-5791-ag
12
13
14   - - - - - - - - - - - - - - - - - - - -X
15
16
17   YAN YAN LIN,
18            Petitioner,
19
20                   -v.-                              07-5791-ag
21
22   ERIC H. HOLDER, JR., DEPARTMENT OF
23   HOMELAND SECURITY,
24            Respondents. *
25
26   - - - - - - - - - - - - - - - - - - - -X
27
28
29   Before:         JACOBS, Chief Judge, KEARSE, and STRAUB,
30                   Circuit Judges.
31
32
33         Yan Yan Lin, a native and citizen of China, petitions




           *
           Pursuant to Federal Rule of Appellate Procedure
     43(c)(2), Attorney General Eric H. Holder, Jr. is
     automatically substituted for Michael B. Mukasey.
1    for review of a final order of the Board of Immigration

2    Appeals affirming the decision of an Immigration Judge which

3    denied her application for asylum, withholding of removal,

4    and withholding under the Convention Against Torture.     The

5    petition was denied primarily on the ground that Lin

6    “assisted or participated” in the persecution of others by

7    serving as a nurse in the maternity ward of a hospital which

8    performed forced abortions and that she was therefore

9    subject to the statutory “persecutor bar” of the Immigration

10   and Nationality Act, 8 U.S.C. §§ 1101(a)(42),

11   1158(b)(2)(A)(i), 1231(b)(3)(B)(i) .   The petition is granted

12   in part, denied in part, and remanded.

13                                 STUART ALTMAN, Law Offices of
14                                 Stuart Altman, New York, New
15                                 York, for Petitioner.
16
17                                 STACY STIFFEL PADDACK, (Anthony
18                                 Norwood, Sherrie Waldrup, on the
19                                 brief), Office of Immigration
20                                 Litigation, for Gregory G.
21                                 Katsas, Assistant Attorney
22                                 General, United States
23                                 Department of Justice, Civil
24                                 Division, Washington, D.C., for
25                                 Respondent.
26
27
28   DENNIS JACOBS, Chief Judge:

29       Petitioner Yan Yan Lin (“Lin” or “Petitioner”), a


                                    2
1    native and citizen of the People’s Republic of China, seeks

2    review of the December 17, 2007 order of the Board of

3    Immigration Appeals (“BIA”) affirming the January 24, 2006

4    decision of Immigration Judge (“IJ”) Vivienne E. Gordon-

5    Uruakpa denying her application for asylum, withholding of

6    removal, and relief under the Convention Against Torture

7    (“CAT”).     In re Yan Yan Lin, No. A95 709 889 (B.I.A. Dec.

8    17, 2007), aff’g No. A95 709 889 (Immig. Ct. N.Y. City, Jan.

9    24, 2006).     Lin was a maternity nurse employed by a state

10   general hospital that (sometimes) performed forced abortions

11   pursuant to China’s family planning policy.      The IJ denied

12   relief (in part) on the ground that Lin was therefore a

13   “persecutor” and statutorily ineligible for asylum or

14   withholding of removal under the Immigration and Nationality

15   Act (“INA”).     See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i),

16   1231(b)(3)(B)(i).     The IJ also denied Lin’s request for CAT

17   protection because Lin failed to demonstrate that it was

18   “more likely than not” that she would be tortured if removed

19   to China.     See 8 C.F.R. § 208.16(c)(2).   The BIA affirmed

20   the IJ’s decision and dismissed the appeal.      This petition




                                     3
1    for review followed.

2        The main issue on appeal is whether Lin’s activity as a

3    nurse in China amounted to “assistance or participation” in

4    persecution which would render her ineligible for asylum or

5    withholding of removal under the INA’s “persecutor bar.”       We

6    conclude that it did not.

7                                    I

8        The facts bearing on this appeal are based on Lin’s

9    testimony, which was found to be credible.

10       From 2002 to 2005, Lin was employed in the obstetrics

11   and gynecology department of the state-run “People’s Number

12   One Hospital” in China.     Her duties included, among other

13   things, tending to pregnant women, assisting in the

14   performance of ultrasound and other prenatal examinations,

15   participating in live-birth deliveries, caring for newborns,

16   and providing recovery care to women who had undergone

17   forced abortions.   Lin did not participate in the abortion

18   procedure itself, but the examinations in which Lin assisted

19   were sometimes used to determine a fetus’s position so that

20   a forced abortion could be performed without threatening the


                                     4
1    life of the mother.

2        In July 2004, a woman Lin knew arrived at the hospital

3    escorted by family planning authorities.     The woman was five

4    months pregnant and was scheduled to undergo a forced

5    abortion in accordance with China’s family planning policy.

6    A pre-abortion examination at which Lin assisted revealed a

7    complication that would delay the procedure for two days.

8    During the delay, Lin found the woman crying in her room;

9    the woman stated that she wished to bear the child, and

10   wanted Lin’s help avoiding the abortion.     At around one

11   o’clock in the morning, after Lin’s shift ended and the

12   person guarding the woman’s room had fallen asleep, Lin

13   opened a side door of the hospital and the woman escaped by

14   motorcycle with her husband, whom Lin had alerted to come to

15   the hospital.   Questioned the next day, Lin denied any

16   knowledge of the escape.

17       Seven months later, in February 2005, a doctor and

18   several family planning officials came to Lin’s house to

19   question her again about the incident.     (They apparently

20   learned of her involvement after interrogating the woman who


                                   5
1    had escaped.)   Lin was not home at the time, but was warned

2    of the visit and fled to her aunt’s house, where she learned

3    that she had been dismissed from the hospital and that

4    officials continued to search for her.   So she decided to

5    leave China.

6        Lin arrived in Los Angeles on March 27, 2005 without

7    valid entry documents, and applied for admission.     Lin was

8    taken into custody and served with a notice to appear,

9    charging her with being subject to removal for her failure

10   to possess valid travel documents under section

11   212(a)(7)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I).

12   Thereafter, Lin was released from custody, paroled into the

13   United States, and notified of the date for her removal

14   hearings.

15       On June 23, 2005, Lin appeared with counsel before the

16   IJ and admitted that she lacked proper documentation, but

17   filed an application for asylum, withholding of removal, and

18   withholding under the Convention Against Torture.     Lin

19   admitted that she had never been arrested, detained, or

20   physically mistreated in China, but alleged fear of


                                   6
1    persecution for her resistance to China’s family planning

2    policy.

3        Following a January 24, 2006 hearing on the merits, the

4    IJ found that Lin had “for the most part been a credible

5    witness.”   Relying on Lin’s testimony, the IJ found that she

6    had “participated in the persecution of other individuals on

7    account of their political opinion” and concluded that she

8    was therefore “statutorily barred from the relief of asylum

9    and [w]ithholding of [r]emoval” under the INA provisions

10   barring relief for individuals who themselves engaged in the

11   persecution of others.   See 8 U.S.C. §§ 1101(a)(42),

12   1158(b)(2)(A)(i), 1231(b)(3)(B)(i).   The finding was based

13   on the grounds that: (i) Lin knew that several of the women

14   she assisted in examining were scheduled to undergo forced

15   abortions (because they were escorted to the hospital by

16   uniformed cadre and guarded during their stay), (ii) Lin’s

17   assistance to doctors in the examinations provided a

18   “necessary step for the involuntary abortion,” and (iii)

19   Lin’s actions “further[ed] the persecution of these women.”

20   The IJ also determined that Lin “failed to demonstrate that


                                   7
1    it [was] more likely than not that she would be tortured

2    . . . [if] removed to China.”       Accordingly, the IJ denied

3    her applications for asylum and withholding of removal, and

4    her request for CAT protection, and ordered her removed from

5    the United States to China.

6        The BIA dismissed Lin’s appeal on December 17, 2007,

7    concluding that Lin failed to show by a preponderance of the

8    evidence “that she did not assist doctors in carrying out

9    forced abortions,” and could not demonstrate that her

10   actions were only “tangential” to the procedure.       Instead,

11   the BIA concluded that Lin’s conduct “as a whole” was

12   “active and contributed directly to the persecution of

13   others.”   The BIA acknowledged that Lin helped one woman

14   escape a forced abortion, but decided that this “redemptive

15   behavior . . . [did] not serve as a basis for relieving the

16   respondent of the consequences of having previously assisted

17   in persecution.”   As to the CAT claim, the BIA agreed with

18   the IJ that Lin failed to demonstrate eligibility for CAT

19   protection because she conceded that she had never been

20   arrested, detained, or physically mistreated in China, and


                                     8
1    she presented no other evidence to indicate that if she were

2    returned to China, she would be tortured.     Accordingly, the

3    BIA dismissed Lin’s appeal in its entirety.

4                                  II

5        We review the BIA’s factual findings under the

6    “substantial evidence” standard, and uphold them “if they

7    are supported by ‘reasonable, substantial and probative

8    evidence in the record.’”   Weng v. Holder, 562 F.3d 510, 513

9    (2d Cir. 2009) (“Weng”) (quoting Lin Zhong v. U.S. Dep’t of

10   Justice, 480 F.3d 104, 116 (2d Cir. 2007)).     The BIA’s

11   application of law to fact is reviewed de novo.     Id.

12       Where “the BIA did not expressly ‘adopt’ the IJ's

13   decision, but its brief opinion closely tracks the IJ’s

14   reasoning,” we consider in the interest of completeness both

15   the IJ and BIA opinions, especially where doing so does not

16   affect the outcome.   Wangchuck v. Dep’t of Homeland Sec.,

17   448 F.3d 524, 528 (2d Cir. 2006).

18                                III

19       The Secretary of Homeland Security or the Attorney

20   General may grant asylum to an alien determined to be a

                                   9
1    “refugee” within the meaning of the INA.     8 U.S.C.

2    § 1158(b)(1)(A).     The INA defines a “refugee” as a person

3    “who is unable or unwilling to return to . . . [a] country

4    because of persecution or a well-founded fear of persecution

5    on account of race, religion, nationality, membership in a

6    particular social group, or political opinion.”     8 U.S.C.

7    § 1101(a)(42).     Excluded from that definition is “any person

8    who ordered, incited, assisted, or otherwise participated in

9    the persecution of any person on account of race, religion,

10   nationality, membership in a particular social group, or

11   political opinion.”     Id.; see also 8 U.S.C.

12   § 1158(b)(2)(A)(i).     This exclusion, the so-called

13   “persecutor bar,” prevents those who have persecuted others

14   (or assisted or participated in the persecution of others)

15   from gaining refugee status and seeking asylum in the United

16   States.   See 8 U.S.C. § 1231(b)(3)(B)(i); Negusie v. Holder,

17   129 S. Ct. 1159, 1162 (2009); Weng, 562 F.3d at 513-14.        The

18   bar also applies to those seeking withholding of removal,

19   see 8 U.S.C. § 1231(b)(3)(B)(i), but “[i]t does not

20   disqualify an alien from receiving a temporary deferral of


                                     10
1    removal under the Convention Against Torture.”     Negusie, 129

2    S. Ct. at 1162; see also 8 C.F.R. § 208.17(a).

3        In this Circuit, four relevant factors determine

4    whether the persecutor bar applies to a particular alien:

5    (1) whether the alien was “involved in” acts of persecution

6    by ordering, inciting, or actively carrying out the acts;

7    (2) whether there is a nexus between the persecution and the

8    victim’s race, religion, nationality, membership in a

9    particular social group, or political opinion; (3) whether

10   the alien’s actions, if not outright “involvement” under the

11   first factor, amount to assistance or participation in

12   persecution; and (4) whether the alien had sufficient

13   knowledge that her actions might assist in persecution to

14   make those actions culpable.    See Weng, 562 F.3d at 514;

15   Balachova v. Mukasey, 547 F.3d 374, 384-85 (2d Cir. 2008).

16   For the persecutor bar to apply, an alien’s conduct must be

17   persecution under either the first or third factors, and

18   must also satisfy the second and fourth factors.     In short,

19   Lin is a persecutor if she knowingly did or assisted acts

20   that would be persecution on account of the victim’s


                                    11
1    victim’s race, religion, nationality, membership in a

2    particular social group, or political opinion.

3         It is settled law that forced abortion is persecution

4    on account of political opinion.     See 8 U.S.C. § 1101(a)(42)

5    (see text in the margin 1 ).   And knowledge is not an issue in

6    this case.   The critical question, then, is whether Lin did

7    or assisted acts of persecution.     It is undisputed that Lin

8    did not order, incite, or actively carry out the forced

9    abortions; so Lin’s conduct does not amount to “involvement”

10   under the first factor.    See Balachova, 547 F.3d at 384.

11   Our focus therefore is on whether Lin “assisted or

12   participated” in persecution under the third factor.

13        “In determining whether . . . conduct amounts to

14   ‘assistance’ in persecution, we look to [the alien’s]

          1
           “[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 . . . 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); see also Weng, 562 F.3d
     at 514.

                                     12
1    behavior as a whole.”    Weng, 562 F.3d at 514.    “Where the

2    [alien’s] conduct [is] active and [has] direct consequences

3    for the victims . . . it [is] ‘assistance in persecution.’

4    Where the conduct [is] tangential to the acts of oppression

5    and passive in nature, however, we decline[] to hold that it

6    amount[s] to such assistance.”      Zhang Jian Xie v. INS, 434

7    F.3d 136, 143 (2d Cir. 2006) (“Xie”).

8           Two cases, Xie and Weng, discuss forced abortion

9    practices in this context and illustrate conduct that

10   amounts to persecution and conduct that does not.      Weng, 562

11   F.3d at 514-15; Xie, 434 F.3d at 143.      Lin’s case falls in a

12   zone between the events and behaviors described in those

13   decisions.

14          In Xie, the petitioner worked as a driver for the

15   county health department in China.      Among other duties, he

16   occasionally “transported pregnant women to hospitals in the

17   locked back of a van, against their will, so that county

18   officials could perform forced abortions on them pursuant to

19   China’s mandatory family planning policies.”      434 F.3d at

20   138.    We agreed with the BIA’s conclusion that the


                                    13
1    petitioner was subject to the persecutor bar because his

2    actions “contributed directly” to the persecution: “[b]y

3    driving the van in which the women were locked, Xie ensured

4    that they were delivered to the place of their persecution.

5    . . .    [He] played an active and direct, if arguably minor,

6    role.”    Id. at 143.   We rejected Xie’s argument that his

7    actions were involuntary, and therefore excusable, in the

8    sense that they were required by his job because “nothing in

9    the record indicate[d] that Xie did not have the ability to

10   quit his job as a driver at any time in order to avoid the

11   persecution of women.”     Id.   We also rejected Xie’s argument

12   that his petition should have been saved by a redemptive act

13   (he once allowed an unguarded pregnant woman he was

14   transporting to go free after she pleaded with him).      We

15   explained that “redemptive behavior is [not] necessarily

16   irrelevant to the inquiry as to whether an applicant has

17   assisted in persecution,” but “the BIA was not in error”

18   when it determined that Xie was ineligible for asylum.

19   Id. at 144.

20       In Weng, the petitioner worked as a nurse’s assistant


                                      14
1    at a public hospital in China.        562 F.3d at 512.     She

2    performed administrative tasks such as registration of

3    patients and maintenance of files, but she also provided

4    post-surgical care, including the taking of temperature and

5    the recording of vital signs.        Id. at 512, 515.     On one

6    occasion, Weng “guarded” women scheduled for forced

7    abortions by sitting outside the locked door of her regular

8    shift room while the women waited inside.        Id. at 515.       On

9    that evening, Weng helped one of the women to escape the

10   hospital before the procedure.        Id. at 512-13, 515.

11       In deciding whether Weng had provided “assistance” in

12   persecution, we observed that the Supreme Court, deciding

13   the same question, had “easily distinguished between the

14   conduct of a concentration camp barber who did not assist

15   persecution and that of armed guards who did.”           Id. at 515

16   (citing Fedorenko v. United States, 449 U.S. 490, 512 n.34

17   (1981)).   Nevertheless, the case law “offered scant guidance

18   on how to classify less overtly culpable conduct.”           Id.

19       We decided in Weng that the “post-surgical care did not

20   contribute to, or facilitate, the victims’ forced abortions


                                     15
1    in any ‘direct’ or ‘active’ way [because] [Weng’s] conduct

2    neither caused the abortions, nor made it easier or more

3    likely that they would occur[;] [the] actions were, at most,

4    ‘tangential,’ ‘passive accommodation’ of the conduct of

5    others” and did not trigger the persecutor bar.    Id.   As to

6    the single incident where Weng “guarded” forced abortion

7    patients, the Court observed that “guarding patients

8    awaiting forced abortions comes closer to active assistance

9    than does post-operative monitoring of vital signs,” but

10   that Weng “was unarmed, . . . performed actual guard duties

11   for only approximately ten minutes before accompanying one

12   of the patients to the restroom, . . . helped one of the

13   patients to escape, and . . . lost her job as a result.”

14   Id.   Under those circumstances, the Court concluded that

15   “Weng’s conduct, considered in its entirety, was tangential,

16   and not sufficiently direct, active, or integral to the

17   administering of forced abortions as to amount to assistance

18   in persecution.”   Id.

19         Lin’s case is closer to Weng than to Xie.   Lin did not

20   participate directly in forced abortions, and the following


                                   16
1    circumstances are decisive:

2           1.   Lin assisted examinations in the maternity ward

3    that were used to detect the position and health of the

4    fetus.      The kinds of examinations in which Lin assisted

5    (e.g., ultrasounds) are given to all pregnant women, whether

6    the pregnancy is scheduled to result in a live birth, a

7    voluntary abortion, or a forced abortion.         The exams are

8    more akin to routine patient care than a protocol specific

9    to forced abortions.

10          2.   As in Weng, the examinations in which Lin assisted

11   “did not contribute to, or facilitate, the victims’ forced

12   abortions in any ‘direct’ or ‘active’ way” because they did

13   not “cause[] the abortions, nor [did they make] it . . .

14   more likely that they would occur.”      Id.     Lin’s actions were

15   therefore “tangential, and not sufficiently direct, active,

16   or integral to the administering of forced abortions as to

17   amount to assistance in persecution.”      Id.

18          Our conclusion is further bolstered by Lin’s redemptive

19   act.     Although the act itself is not dispositive, we must

20   view Lin’s conduct “as a whole,” id., and the act suggests


                                      17
1    that she did not actively “assist” or participate in

2    persecution.    We conclude as a matter of law that Lin’s

3    conduct does not subject her to the persecutor bar.     We

4    grant Lin’s petition with respect to the BIA’s denial of her

5    applications for asylum and withholding of removal, and

6    remand for the BIA to determine, in the first instance, if

7    Lin is eligible for such relief.

8    (A) The CAT Determination

9        In order to establish eligibility for CAT withholding,

10   the petitioner must demonstrate that she will “more likely

11   than not” be tortured if removed to her home country.        See 8

12   C.F.R. § 208.16(c)(2).    Here, the IJ and the BIA concluded

13   that Lin failed to sustain her burden of demonstrating that

14   it was “more likely than not” that she would be tortured in

15   China because she affirmatively testified that she had never

16   been arrested, detained, or physically mistreated in her

17   home country.    We see no error in this conclusion and deny

18   Lin’s petition for review on this ground.

19                               CONCLUSION

20       For the foregoing reasons, Lin’s petition for review is


                                     18
1   granted as to her applications for asylum and withholding of

2   removal, and denied as to withholding of removal under CAT;

3   the petition is remanded to the BIA for further proceedings

4   consistent with this opinion.




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