         10-505-ag
         Chen v. Holder
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A099 662 056


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 14th day of April,two thousand eleven.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _______________________________________
12
13       GUI MEI CHEN,
14
15                        Petitioner,
16
17                        v.                                    10-505-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL
21                Respondent.
22       ______________________________________
23
24
25       FOR PETITIONERS:          Ramesh J. Shrestha, New York, New York.
26
27       FOR RESPONDENT:           Tony West, Assistant Attorney General;
28                                 Linda S. Wernery, Assistant Director;
29                                 Thankful T. Vanderstar, Trial Attorney,
30                                 Office of Immigration Litigation, Civil
31                                 Division, United States Department of
32                                 Justice, Washington, D.C.
 1        UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED, in part, and GRANTED, in part.

 5        Petitioner Gui Mei Chen, a native and citizen of China,

 6   seeks review of a January 15, 2010, order of the BIA

 7   affirming the March 4, 2008, decision of Immigration Judge

 8   (“IJ”) Elizabeth A. Lamb denying her application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).    In re Gui Mei Chen, No. A099 662

11   056 (B.I.A. Jan. 15, 2010), aff’g No. A099 662 056      (Immig.

12   Ct. N.Y. City Mar. 4, 2008).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15        Under the circumstances of this case, we review the

16   IJ’s decision as supplemented by the BIA decision.      See Yan

17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

18   applicable standards of review are well-established.      See 8

19   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

20   513 (2d Cir. 2009).

21   I.   Forced Sterilization

22        Chen’s argument that the BIA erred in finding that she


                                    2
 1   failed to establish a well-founded fear of future

 2   persecution based on the births of her two children is

 3   foreclosed by this Court’s decision in Jian Hui Shao v.

 4   Mukasey, 546 F.3d 138 (2d Cir. 2008).   Contrary to Chen’s

 5   argument, the record does not compellingly suggest that the

 6   agency ignored any material evidence that she submitted in

 7   support of her application.    See id. at 169; see also Xiao

 8   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d

 9   Cir. 2006).   Indeed, the BIA explicitly noted that it “ha[d]

10   considered the documentation [she] had submitted to prove

11   that the regulations of her locality are more coercive than

12   those of the national government.”

13       Because China’s family planning policy varies depending

14   on locality, the burden is on the applicant to establish

15   that she would personally suffer persecution on account of

16   her violation of the policy.    Jian Hui Shao, 546 F.3d at

17   159-62.   The BIA reasonably found that Chen did not

18   establish an objectively reasonable fear of persecution

19   because she did not meet this burden.   While Chen argues

20   that evidence of general conditions in China establishes

21   that she faces sterilization, the agency reasonably

22   determined that this evidence did not suffice to show that


                                    3
 1   she faces future persecution in her locality.        See id. at

 2   159-65 (noting great variation in the implementation of

 3   China’s family planning policy between localities).        The

 4   agency also reasonably found that the affidavits Chen

 5   submitted, were not probative because they did not detail

 6   the forced sterilizations of similarly situated individuals

 7   as none of the individuals had returned to China with United

 8   States born children or been forcibly sterilized after

 9   giving birth to only two children.        Id. at 160-61.

10       Although Chen testified that she was warned by family

11   planning officials that if she had another child she (or her

12   husband) would be sterilized, the warning did not

13   demonstrate that her fear of future persecution was

14   objectively reasonable because the family planning officials

15   did not indicate that the mandatory sterilization would be

16   performed by force if Chen refused to submit herself

17   voluntarily.   See id. at 172.       Thus, the agency’s

18   determination that Chen did not establish her eligibility

19   for asylum based on her fear of sterilization is supported

20   by substantial evidence.   Accordingly, the petition is

21   denied with respect to this claim.

22



                                      4
 1   II. Forcible IUD Insertion

 2       However, the agency’s determination that Chen did not

 3   establish that she suffered past persecution based on the

 4   forcible insertion of an intrauterine device (“IUD”), is

 5   remanded in light of our decision in Mei Fun Wong v. Holder,

 6   Dkt. No. 08-5328-ag (2d Cir Feb. 1, 2011).

 7       To establish past persecution based on the forcible

 8   insertion of an IUD, an asylum applicant must establish

 9   that: (1) the IUD was inserted because of her resistance to

10   a family planning policy, or another protected ground,

11   rather than as a routine part of the population control

12   program; and (2) there were “aggravating circumstances.”

13   Xia Fan Huang v. Holder, 591 F.3d 124, 128-30 (2d Cir. 2010)

14   (according Chevron deference to the BIA’s decision in Matter

15   of M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008)).

16       In Mei Fun Wong, we remanded for the agency to

17   articulate standards for determining whether an asylum

18   applicant has established aggravating circumstances and to

19   clarify how it determines whether the applicant was

20   subjected to the forcible insertion of an IUD on account of

21   their resistance to China’s family planning policy, or other

22   protected grounds.   Slip op. at 24-34.


                                   5
 1       For the reasons discussed in Mei Fun Wong, we cannot

 2   evaluate the BIA’s determination that Chen did not establish

 3   that she suffered past persecution when she was subjected to

 4   the forcible insertion of an IUD.   See id. at 24-34.    The

 5   BIA has yet to clarify whether it “categorically concludes

 6   that nexus cannot be established by evidence that a person

 7   who resisted a population control policy was compelled to

 8   submit to a practice, such as IUD insertion, routinely

 9   performed in furtherance of that policy.”   Id. at 32.    And

10   it has not yet addressed whether “aggravating circumstances

11   designed to compel submission . . . [can] demonstrate the

12   requisite nexus between that persecution and an applicant’s

13   opposition to the state’s population control policy.”     Id.

14   at 33.

15       Moreover, Chen asserts that she established aggravating

16   circumstances based on the cumulative harm she suffered.

17   While the agency found that this mistreatment did not

18   constitute aggravating circumstances, “we cannot review the

19   Board’s decision that [her mistreatment did not constitute

20   aggravating circumstances] without a clearer understanding

21   of how [the BIA] weighed the [IUD insertion] itself

22   consistent with its obligation to consider all alleged harms


                                  6
 1   cumulatively.”   Id. at 27.

 2       Thus, we remand this case to the BIA for further

 3   proceedings in light of Mei Fun Wong v. Holder, Dkt. No. 08-

 4   5328-ag.   Because we remand this case on other grounds, we

 5   do not now address the agency’s determination that Chen

 6   failed to establish a subjective fear of future persecution

 7   based on her daughter’s return visit to China.

 8       For the foregoing reasons, the petition for review is

 9   DENIED, in part, and GRANTED, in part, the order of removal

10   is VACATED, and the case is REMANDED to the BIA for

11   proceedings consistent with this decision.    Any pending

12   request for oral argument in this petition is DENIED in

13   accordance with Federal Rule of Appellate Procedure

14   34(a)(2), and Second Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
18
19




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