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Jianli Chen v. Eric H. Holder

December 21, 2012



The opinion of the court was delivered by: Selya, Circuit Judge.

Before Lynch, Chief Judge, Selya and Stahl, Circuit Judges.

The petitioners, Jianli Chen and her husband, Min Fen Hu, are Chinese nationals. They seek judicial review of the final orders of the Board of Immigration Appeals (BIA) (i) affirming the denial of their applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT); and (ii) denying their motion for reconsideration. Chen appears both as an applicant for relief in her own right and as a derivative beneficiary of her husband's application. After careful consideration, we leave the BIA's orders intact.


Hu entered the United States without inspection on December 1, 2005. Chen followed suit on March 8, 2006. Federal authorities subsequently placed them in removal proceedings. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1229a(a)(2). Both petitioners conceded removability and cross-applied for asylum, withholding of removal, and CAT relief. Their cases were consolidated for hearing before an immigration judge (IJ).

We rehearse the facts in line with the petitioners' direct testimony. Chen and Hu were married in China on November 14, 2001. On January 13, 2003, Chen gave birth to their first child (a daughter). Approximately two months later, government functionaries directed the implantation of an intrauterine device (IUD) in Chen, pursuant to China's coercive population control policy.

Chen and Hu went through a sham divorce in order to avoid the annual pregnancy checks required for all married women. Chen then asked a private physician to remove the IUD so that she could bear a second child. She became pregnant and, to conceal her condition from the authorities, she hid at her uncle's home. Despite this professed need for secrecy, the petitioners traveled openly to Thailand for a vacation, securing visas and passing through customs.

During this pregnancy, Chen skipped the mandatory gynecological examinations routinely scheduled by the municipal family planning office. Nevertheless, she voluntarily underwent two ultrasound examinations, including one at a provincial hospital run by the Chinese government.

When family planning officials concluded that Chen was trying to dodge the population control policy, they took her mother into custody and Chen was informed that her mother would be held indefinitely unless Chen allowed a pregnancy check to be performed. Chen capitulated: on August 23, 2005 (shortly after returning from the Thailand vacation), she was examined, found to be pregnant, and subjected to a forced abortion.

In mid-October, Hu left China. He flew from Beijing to Paris and then traveled to Venezuela, where he remained for three days. Thereafter, he spent two months traveling to the United States by boat, vehicle, and on foot. Almost immediately after his arrival, the Department of Homeland Security commenced removal proceedings against him in the New York immigration court.

Chen left China three days after Hu. She remained in Venezuela for five months before traveling to the United States through Mexico. She arrived in March of 2006 and, in short order, removal proceedings were instituted against her.

On May 17, 2006, the petitioners remarried in the United States. Roughly two-and-one-half years later, Chen gave birth to a second child (a son) in New York.

In the removal proceedings, the petitioners conceded the foundational factual allegations but insisted that, if repatriated, they would be subjected to involuntary sterilization. When they moved to Springfield, Massachusetts, the cases were transferred to Boston.

Following an evidentiary hearing, the IJ determined that the petitioners' testimony was not believable and that, therefore, their factual account could not be credited. With these determinations in mind, the IJ concluded that the petitioners had failed to establish either past persecution or a well-founded fear of future persecution. Consequently, she rejected the petitioners' cross-applications for relief and ordered them removed to China.

The petitioners appealed to the BIA, which upheld the IJ's adverse credibility determinations and affirmed the IJ's rulings save for a perceived need to remand Hu's asylum application for findings as to whether he suffered past persecution. The petitioners moved for reconsideration, arguing that the BIA had improvidently fashioned its own factual findings in order to uphold the adverse credibility determinations. The BIA rebuffed this argument, stating that its prior decision did not "incorporate[] or rel[y] . . . on any improper factfinding."

In the same motion, the petitioners sought reconsideration of the remand order. The BIA reconsidered this issue and withdrew the remand order, accepting Hu's representation that he did not wish to pursue the issue of past persecution.

The petitioners have now sought judicial review.*fn1 We have jurisdiction under 8 U.S.C. § 1252(a)(1).


Our analysis necessarily begins with the standard of review, which is complicated here because the petitioners have challenged both the BIA's original decision and its partial denial of their motion for reconsideration. Withal, the issues are essentially the same and, for ease in exposition, we assume, without deciding, that the more petitioner-friendly substantial evidence standard applies to those issues.*fn2

The substantial evidence standard pertains to the review of factual findings, including credibility determinations. Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007). Viewing the evidence through this deferential lens, we will reverse only if the record is such as to compel a reasonable factfinder to reach a contrary determination. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir. 2007). In other words, findings of fact will stand as long as they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks omitted).

Rulings of law are a different matter. Such rulings engender de novo review, but with some deference to the agency's reasonable interpretation of statutes and regulations that fall within its sphere of authority. See Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009); see also Chevron ...

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