Chen v. INS

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

YONG HAO CHEN,

Petitioner,

v.

No. 98-2005

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals.

(A72-379-186)

Argued: September 24, 1999

Decided: October 20, 1999

Before WIDENER and MOTZ, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in

which Judge Widener and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Lawrence H. Rudnick, STEEL, RUDNICK & RUBEN,

Philadelphia, Pennsylvania, for Petitioner. Norah Ascoli Schwarz,

Senior Litigation Counsel, Office of Immigration Litigation, Civil

Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-

ington, D.C., for Respondent. ON BRIEF: Beverly Yeskolski,

HYDER, LOWE & GALSTON, Norfolk, Virginia, for Petitioner.

Frank W. Hunger, Assistant Attorney General, Francesco Isgro,

Senior Litigation Counsel, Office of Immigration Litigation, Civil

Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-

ington, D.C., for Respondent.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Yong Hao Chen, a citizen of the People's Republic of China

(China), petitions for review of a final order of the Board of Immigra-

tion Appeals denying his application for asylum and withholding of

deportation. Chen maintains that he is entitled to refugee status

because he has a well-founded fear, based on China's"one child"

population control program, of being subjected to an involuntary ster-

ilization procedure, or of being persecuted for a refusal to undergo

such a procedure. The Board held that Chen's fears are not well-

founded. Because substantial evidence supports the Board's decision,

we affirm.

I.

Yong Hao Chen came to the United States on a student visa in Sep-

tember 1990 to study at Old Dominion University. After Chen was

seriously injured in a work-related accident, Chen's wife, Wei Kai Li,

joined him in Virginia in 1991. Chen's student visa expired in 1994.

On July 2, 1996, the Immigration and Naturalization Service (INS)

issued orders requiring Chen and Wei Kai Li to show cause for their

failure to comply with the terms under which they were admitted to

the country. Deportation proceedings before an immigration judge

followed, at which both Chen and Wei Kai Li testified.

According to their testimony, Chen and Wei Kai Li have two chil-

dren, and Chen also has an older child from his first marriage. Chen

and Wei Kai Li's first child, who now lives with Wei Kai Li's mother

in China, was born in Shanghai in May 1990. The couple maintained

that they faced severe pressure, both at work and in study groups, to

abort this pregnancy because the child would be Chen's second. They

2

secured a permit to have the child only after making payments (char-

acterized by them variously as "fines," "gifts," and "bribes") to gov-

ernment family planning officials. They were also forced to sign

agreements with both of their employers and with the local family

planning office promising that they would not have any more children

and that they would undergo sterilization. The couple was unable to

produce copies of these agreements but did assert that in each case the

agreements were kept on file by the person exacting the promise. Wei

Kai Li testified that, after giving birth, she was able to avoid immedi-

ate sterilization because the difficulty of the birth precluded attempt-

ing the procedure, and because the "doctor kn[e]w" her. The couple

did not explain how they were able to avoid sterilization during the

remainder of their time in China.

Chen and Wei Kai Li's second child (Chen's third) was born in the

United States in July 1993. The couple testified that there would be

severe repercussions for them if they returned to China with another

child. They speculated that they would be forced to undergo steriliza-

tion, imprisoned, professionally restricted, and severely fined. They

also expressed generalized fears about what their American-born

son's status would be if they were forced to return, claiming that his

access to educational opportunities and housing would be limited. The

couple pointed to the fact that they had already sent money back to

China to pay fines associated with their older child, although Chen's

testimony suggested that these were merely fees for the cost of the

child's housing and education. Chen also submitted a 1995 report by

Human Rights in China, which describes severe repercussions for

some families in violation of China's "one child" policy, including

beatings and forced surgeries.

The INS, in arguing that Chen has no objective basis for his fears

of persecution, submitted a 1995 State Department report on condi-

tions in China. The report indicates that although forced abortions and

sterilizations still occur, these practices have been on the decline since

the mid-1980's, and they are increasingly limited to rural areas.

Instead, according to the report, the "one child" policy "relies on edu-

cation, propaganda and economic incentives as well as more coercive

measures, including psychological pressure and economic penalties."

Furthermore, the report cites interviews with family planning officials

from Shanghai--Chen and Wei Kai Li's home city--in which the

3

officials explained that couples returning from university study

abroad with an additional child have been "excused" from paying any

penalty or have paid only fees commensurate with the cost of housing

and educating the child.

II.

The Immigration and Nationality Act provides the Attorney Gen-

eral with discretion to grant asylum to any alien who is a "refugee."

8 U.S.C.A. § 1158(b) (West 1999). The Act defines "refugee" as a

person unable or unwilling to return to his home country "because of

persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or polit-

ical opinion . . . ." 8 U.S.C.A. § 1101(a)(42)(A) (West 1999).

Prior to 1997, the Board of Immigration Appeals consistently held

that persecution under China's "one child" family planning policy

was not persecution "on account of political opinion," and that vic-

tims of these policies were therefore not entitled to asylum, see In re

Chang, Interim Decision 3107 (B.I.A. 1989); that holding was

affirmed on review by the courts. See Chen v. INS, 95 F.3d 801 (9th

Cir. 1996); Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995), cert.

denied, 516 U.S. 1176 (1996); Chen Zhou Chai v. Carroll, 48 F.3d

1331 (4th Cir. 1995). Apparently in response to this interpretation,

Congress amended the definition of "refugee" in the Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

effective April 1, 1997, to include those who had been persecuted

under a coercive family planning program, or who legitimately feared

such persecution:

For purposes of determinations under this chapter, 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

4

deemed to have a well founded fear of persecution on

account of political opinion.

Pub. L. No. 104-208, § 601(a)(1), 110 Stat. 3009-689 (1996) (current

version at 8 U.S.C.A. § 1101(a)(42)). Chen maintains that this amend-

ment entitles him to refugee status because he has a well-founded fear

that he will be forced to undergo an involuntary sterilization proce-

dure or that he will be subject to persecution for his refusals to

undergo such a procedure.

The "well founded fear of persecution" standard contains a subjec-

tive and an objective component. See INS v. Cardoza-Fonseca, 480

U.S. 421, 430-31 (1987). An applicant may satisfy the subjective ele-

ment by presenting "`candid, credible, and sincere testimony' demon-

strating a genuine fear of persecution." Berroteran-Melendez v. INS,

955 F.2d 1251, 1256 (9th Cir. 1992) (quoting Blanco-Comarribas v.

INS, 830 F.2d 1039, 1042 (9th Cir. 1987)). The objective element

requires the asylum petitioner to show, with specific, concrete facts,

that a reasonable person in like circumstances would fear persecution.

See Huaman-Cornelio v. Board of Immigration Appeals , 979 F.2d

995, 999 (4th Cir. 1992); MA v. INS, 899 F.2d 304, 311 (4th Cir.

1990). The applicant bears the burden of demonstrating eligibility for

asylum. See 8 C.F.R. § 208.13(a)(1999); Gonahasa v. INS, 181 F.3d

538, 541 (4th Cir. 1999).

The immigration judge made no specific finding as to the subjec-

tive component. However, the judge found that Chen did not qualify

for asylum under even the amended definition of"refugee" because

he was unable to establish that his fears of persecution and involun-

tary sterilization are objectively reasonable. Dismissing Chen's

appeal, the Board held that the immigration judge had properly relied

on the State Department report that couples returning to Shanghai

from university study abroad had been excused from any penalties.

The Board found that Chen had failed to rebut this evidence.

We accord deference to the decisions of the Board and must uphold

the Board's determination "if supported by reasonable, substantial,

and probative evidence on the record considered as a whole." 8

U.S.C.A. § 1105a(a)(4) (West 1994). Under this standard, a court can

reverse only if the evidence presented was "so compelling that no rea-

5

sonable factfinder could fail to find the requisite fear of persecution."

INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). (Although

IIRIRA repealed § 1105a, that standard applies here under IIRIRA's

transitional rules because Chen was in deportation proceedings prior

to April 1, 1997. See Pub. L. No. 104-208,§§ 306(b), 309(c), 110

Stat. 3009-612, 3009-625. We note that under the permanent rules a

court must similarly give great deference to the Board's evidentiary

findings. See 8 U.S.C.A. § 1252(b)(4)(B) (West Supp. 1999) ("the

administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary")).

III.

In amending the Immigration and Nationality Act, Congress

included three additional classes of individuals in the definition of

"refugee": 1) persons who had been forced to undergo an involuntary

sterilization or abortion; 2) persons who had been persecuted for

refusing to undergo such a procedure or for other resistance to a coer-

cive population control program; and 3) persons who have a well-

founded fear of being subjected to a coercive population control pro-

gram. See 8 U.S.C.A. § 1101(a)(42). By including applicants with a

"well founded fear" of persecution as a distinct category, Congress

directed that an individual in fear of a population control program

would be able to qualify for refugee status even in the absence of a

showing of past persecution.

For applicants seeking refuge from China's "one child" policy, the

statute thus requires the Board, and ultimately the courts, to make

judgments about the state of enforcement of a policy with contours

that have been only partially disclosed, in a vast and diverse society

on another continent. Tellingly, the State Department report on China,

offered by the INS here, records conflicting insights from informants,

breaks down its analysis by province and region, and offers only ten-

tative conclusions. The asylum applicant who has suffered no past

persecution will often be at great remove from what we would ordi-

narily consider "concrete" evidence. Yet that applicant may nonethe-

less have an objectively well-founded fear of future persecution under

the "one child" policy.

It does not appear that any other court has yet been asked to evalu-

ate a claim of a well-founded fear of a coercive population control

6

program under the amended statute. However, courts have considered

the quantum of evidence necessary to establish a well-founded fear of

persecution on account of political opinion. In Cardoza-Fonseca, the

Supreme Court rejected the INS's contention that the applicant must

prove a "clear probability of persecution" if returned to his home

country. 480 U.S. at 430. Rather, the Court explained, "[o]ne can cer-

tainly have a well-founded fear of an event happening when there is

less than a 50% chance of the occurrence taking place." Id. at 431.

We have never quantified precisely what is necessary to demonstrate

a well-founded fear of persecution, cf. Montecino v. INS, 915 F.2d

518, 520 (9th Cir. 1990) (showing of 10% chance would be suffi-

cient), but we have recognized that an individual can demonstrate

such a fear by showing that a reasonable person in like circumstances

would fear persecution. See Huaman-Cornelio, 979 F.2d at 999; MA,

899 F.2d at 311.

Asylum petitioners who have not suffered past persecution have

been able to establish a well-founded fear of future persecution when

they have offered some evidence that they would be individually tar-

geted, because of their particular status or role in their home country,

for persecution on one of the statutorily defined grounds. See

Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999) (applicant had well-

founded fear of being subjected to female genital mutilation if

returned to Ghana because of her designated role in a tribal practice);

Mgoian v. INS, 184 F.3d 1029 (9th Cir. 1999) (member of prominent

Armenian Kurdish-Muslim family had well-founded fear based on

persecution of family members and escalation of anti-Muslim senti-

ment in post-Soviet Armenia); Velarde v. INS, 140 F.3d 1305, 1312

(9th Cir. 1998) (former bodyguard to Peruvian president's daughters

had well-founded fear of persecution by Shining Path); Sotelo-Aquije

v. Slattery, 17 F.3d 33, 37 (2d Cir. 1994) (vocal opponent of Shining

Path had well-founded fear of being targeted for retribution). Simi-

larly, an applicant can succeed in proving a well-founded fear of

future persecution by producing documents indicating that a govern-

ment agency or other organization has identified him as a particular

target for persecution. See Ubau-Marenco v. INS , 67 F.3d 750, 758-

59 (9th Cir. 1995) (judicial summons and decree issued for applicant

under a Nicaraguan law commonly employed to suppress political

dissent could establish that applicant had well-founded fear),

7

overruled on other grounds, Fisher v. INS , 79 F.3d 955 (9th Cir.

1996).

The "well founded fear" standard, however, does not require an

asylum petitioner to show that he will be individually targeted, or

"singled out," for persecution. See C.F.R. § 208.13(b)(2) (INS "shall

not require the applicant to provide evidence that he or she would be

singled out individually for persecution if . . . there is a pattern or

practice . . . of persecution of a group of persons similarly situated"

and the applicant establishes inclusion in such group). Thus, asylum

petitioners have also been able to demonstrate a well-founded fear by

showing that they belong to a broader class of individuals that has

been subjected to systematic persecution. See Kotasz v. INS, 31 F.3d

847, 852 (9th Cir. 1994) ("Certainly, it would not have been neces-

sary for each individual Jew to await a personal visit to his door by

Nazi storm troopers in order to show a well-founded fear of persecu-

tion."); see also Najafi v. INS, 104 F.3d 943 (7th Cir. 1997) (applicant

who became a Christian while on a student visa in the United States

should be given opportunity to prove that, if returned to Iran, he

would be subject to religious persecution as an apostate). The key for

the applicant is to show the thorough or systematic nature of the per-

secution he fears.

Individual targeting and systematic persecution do not necessarily

constitute distinct theories. Rather, an applicant will typically demon-

strate some combination of the two to establish a well-founded fear

of persecution. See, e.g., Angoucheva v. INS, 106 F.3d 781, 789 (7th

Cir. 1997) (Macedonian citizen of Bulgaria could establish well-

founded fear by showing persecution of Macedonian community and

her own visible role in Macedonian political advocacy group). "[T]he

more egregious the showing of group persecution . . . the less evi-

dence of individualized persecution must be adduced." Kotasz, 31

F.3d at 853. Conversely, a stronger showing of individual targeting

will be necessary where the underlying basis for the applicant's fear

is membership in a diffuse class against whom actual persecution is

haphazard and rare.

Congress's amended definition of "refugee" instructs the INS to

consider, as the underlying basis for the asylum claim at issue here,

membership in an extraordinarily large and diffuse class of

8

individuals--persons subject to the coercive enforcement of China's

"one child" population control policy. The Chinese government and

its local agents, according to the State Department, impose these mea-

sures in a far from systematic way, and with decreasing frequency. As

a result, an applicant must proffer some additional evidence that his

fears of this policy are objectively reasonable. Unless the individual

can offer persuasive evidence that, contrary to the State Department

report, coerced abortions and sterilizations continue to systematically

occur, he must come forward with some additional evidence of the

risk posed by a return to China. For example, he must show that he

has been individually targeted for coercive enforcement of the "one

child" program or that he belongs to some subgroup, such as those

residing in a particular province or region, against whom coercive

enforcement of the "one child" program remains systematic.

In this case, viewing the administrative record as a whole, we must

conclude that substantial evidence supports the Board's decision.

Chen offered no evidence that seriously contested the findings of the

State Department regarding the current enforcement status of the "one

child" policy. Although the Human Rights in China report offered by

Chen details horrific practices that continue to take place, the report

does not contradict the State Department's conclusion that the prac-

tice of forced sterilization is uncommon and increasingly limited to

rural areas. The Human Rights in China report does not present a pic-

ture of systematic persecution under the "one child" policy.

Chen has offered only limited evidence that he and Wei Kai Li

would be specific targets for forced sterilization or other persecution.

Chen and Wei Kai Li indicated that, during Wei Kai Li's first preg-

nancy, they faced significant pressure from employers and local offi-

cials to terminate the pregnancy. They were not, however, forced to

undergo sterilization or subjected to other persecution at that time.

Furthermore, they were both given permission to spend extended time

abroad soon after the birth. If Chen had been able to offer evidence

of the specific terms of the agreements that he and his wife allegedly

signed during her first pregnancy, and if these terms had suggested

that he would be individually targeted for involuntary sterilization or

other persecution upon his return to China with an additional child,

such evidence might well have been sufficient to support an applica-

9

tion for asylum. The bare testimony that they signed certain agree-

ments (with undocumented provisions), however, is not sufficient.

The testimony of Chen and Wei Kai Li as well as the State Depart-

ment report all suggest that Chen faces the possibility of monetary

penalties upon his return to China. Although economic deprivation

can constitute "persecution" under the Act, the deprivation must at

least rise to the level of a "deliberate imposition of substantial eco-

nomic disadvantage." Borca v. INS, 77 F.3d 210, 215-16 (7th Cir.

1996) (radiologist allegedly barred from assuming any government

employment, except possibly as a farm laborer, could establish eco-

nomic persecution) (citing Kovac v. INS, 407 F.2d 102, 105-07 (9th

Cir. 1969)). Taken as a whole, the record does not compel the conclu-

sion that Chen reasonably fears such disadvantage because of his

decision to have a third child. At most, a reasonable factfinder would

be compelled to conclude that Chen faces the objective possibility of

incurring fees associated with the cost of housing and educating his

son.

Moreover, while Chen has been unable to show that he would be

at particular risk upon return to China, the INS has produced evidence

suggesting that Chen belongs to a subgroup that has been treated with

particular leniency under the "one child" policy--persons returning

with an additional child from university study abroad. Chen has not

persuasively rebutted this evidence. The decision of the Board deny-

ing refugee status must therefore be upheld.

The standard for withholding of deportation is more stringent than

that for asylum eligibility. See Cardoza-Fonseca , 480 U.S. at 431-32.

To qualify for withholding of deportation, an applicant must demon-

strate a "clear probability of persecution." Id. at 430. As Chen has not

established refugee status, he cannot meet the higher standard for

withholding of deportation.

IV.

For the foregoing reasons, the judgment of the Board of Immigra-

tion Appeals is

AFFIRMED.

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