Guo Ying Chen v. Holder , 424 F. App'x 69 ( 2011 )

10-1544-ag
Chen v. Holder
BIA
Weisel, IJ
A079 630 182
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 17th day of June, two thousand eleven.
PRESENT:
JOHN M. WALKER, JR.,
PIERRE N. LEVAL,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________
GUO YING CHEN,
Petitioner,
v. 10-1544-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Theodore N. Cox, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Anthony C. Payne, Senior Litigation
Counsel; Jesse M. Bless, Trial Attorney,
Office of Immigration Litigation, United
States Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED, that the petition for review is GRANTED.
Guo Ying Chen, a native and citizen of the People’s Republic
of China, seeks review of an April 13, 2010, decision of the BIA,
affirming the January 7, 2009, decision of Immigration Judge
(“IJ”) Robert D. Weisel, which denied her application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Guo Ying Chen, No. A079 630 182 (B.I.A.
Apr. 13, 2010), aff’g No. A079 630 182 (Immig. Ct. N.Y. City Jan.
7, 2009). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we review the decision
of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
review are well-established. See Salimatou Bah v. Mukasey, 529
F.3d 99, 110 (2d Cir. 2008); Manzur v. U.S. Dep’t of Homeland
Sec., 494 F.3d 281, 289 (2d Cir. 2007).
In denying Chen’s asylum application on the basis that she
had not proven that she suffered past persecution, the BIA relied
on three alternative rationales, finding that Chen failed to:
(1) establish that her symptoms were caused by the intra-uterine
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device (“IUD”) she was required to use; (2) demonstrate
aggravating circumstances sufficient to establish persecution; and
(3) establish a nexus between any aggravating circumstances she
suffered and a protected ground. Because each of these decisions
was tainted by error, remand is required for the BIA to reconsider
whether Chen is entitled to relief.
First, the BIA erred by stating that the IJ had found “that
[Chen] did not establish that her dizziness and other symptoms
were caused by the IUD[.]” As Chen correctly points out, the IJ
actually found that “[Chen] did establish that the [IUD] may have
caused these symptoms” (emphasis added). Because the BIA misread
the IJ’s factual findings, remand is required for it to reassess
Chen’s asylum claim if there is no independent basis for affirming
the IJ’s decision. Xiao Kui Lin v. Mukasey, 553 F.3d 217, 223-24
(2d Cir. 2009).
The BIA further found that Chen was not entitled to asylum
because: (1) the harm she suffered could not be considered
aggravating circumstances to establish persecution; and (2) she
failed to establish a nexus between any aggravating circumstances
she suffered and a protected ground. In light of Mei Fun Wong v.
Holder, --- F.3d ----, No. 08-5328-ag, 2011 WL 293762 (2d Cir.
Feb. 1, 2011), these findings are insufficient and remand is
required.
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As an initial matter, Chen argues that she is entitled to
asylum because the required insertion of an IUD is, per se, the
equivalent of forced sterilization. We have previously rejected
this argument. See Mei Fun Wong, 2011 WL 293762, at *6 (“[T]he
BIA’s conclusion that involuntary IUD insertion did not constitute
involuntary sterilization was reasonable. . . .”); Xia Fan Huang
v. Holder, 591 F.3d 124, 128-30 (2d Cir. 2010).
Chen’s next argument, however, that the BIA erred in finding
that she did not establish aggravating circumstances or a nexus
to a protected ground, warrants remand to the BIA in light of Mei
Fun Wong. Chen argues that she suffered from aggravating
circumstances in that family planning officials destroyed property
in her home, detained her mother for three days, and did not use
anesthesia during the IUD insertion. Because Chen, like the
petitioner in Mei Fun Wong, alleged that a cumulative series of
harms constituted aggravating circumstances, “we cannot review the
Board’s decision that [her mistreatment did not constitute
aggravating circumstances] without a clearer understanding of how
[the BIA] weighed the [IUD insertion] itself consistent with its
obligation to consider all alleged harms cumulatively.” Mei Fun
Wong, 2011 WL 293762, at *11.
Likewise, remand is required for the BIA to determine whether
Chen can establish a nexus between the harm she suffered and a
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protected ground. Although the BIA found that Chen “d[id] not
contend that the IUD was inserted in response to any resistance
to China’s family planning policy,” Chen argued before the BIA
that family planning officials destroyed property in her home and
detained her mother. As we have now directed the BIA to “clarify
whether aggravating circumstances designed to compel submission
– e.g., detention, threats, fines, use of force, etc., – can not
only elevate a routine practice to the level of persecution, but
can also demonstrate the requisite nexus between that persecution
and an applicant’s opposition to the state’s population control
policy[,]” Mei Fun Wong, 2011 WL 293762, at *14, remand is
required for the BIA to re-evaluate its adverse nexus
determination in this case as well.
For the foregoing reasons, the petition for review is
GRANTED, the order of removal is VACATED, and the case is REMANDED
to the BIA for proceedings consistent with this decision. Any
pending request for oral argument in this petition is DENIED in
accordance with Federal Rule of Appellate Procedure 34(a)(2), and
Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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