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Wen Feng Liu v. Eric H. Holder

April 22, 2013

WEN FENG LIU, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, RESPONDENT.



PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

The opinion of the court was delivered by: Lynch, Chief Judge.

Before

Lynch, Chief Judge, Lipez and Thompson, Circuit Judges.

On November 10, 2009, an Immigration Judge found petitioner Wen Feng Liu removable under the Immigration and Nationality Act and denied Liu's applications for asylum, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals dismissed Liu's appeal on March 26, 2012, and Liu filed a timely petition for review. Because the decision below was supported by substantial evidence, we deny the petition and affirm the BIA.

I.

On December 27, 2006, Liu, a native-born citizen of the People's Republic of China, entered the United States without admission or parole. His wife and child remained in China. Just over six months later, on July 6, 2007, Liu filed an affirmative application for asylum and withholding of removal.

Liu's application asserted that in 2003, he and his wife conceived a second child in violation of China's one-child policy and that as a result his wife was subjected to a forced abortion. A section of the Immigration and Nationality Act provides that those "forced to abort a pregnancy" are presumptively entitled to asylum. 8 U.S.C. § 1101(a)(42)(B) (2006). At the time of Liu's application, the Board of Immigration Appeals (BIA) had interpreted this section as extending the presumption to the husband of a woman subject to a forced abortion. See In Re S-L-L, 24 I. & N. Dec. 1, 7 (BIA 2006) ("[Forced abortion of a] prospective child . . . is explicitly directed against both husband and wife for violation of the Government-imposed family planning law and amounts to persecution of both parties to the marriage.").

On October 11, 2007, following an initial interview and referral from an asylum officer, Liu appeared before an Immigration Judge (IJ) and conceded removability but requested asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Various procedural matters, including a change of venue from New York to Boston, then delayed adjudication of Liu's petition on the merits for more than two years. On May 15, 2008, while the petition remained pending, the Attorney General issued an opinion overruling the BIA's interpretation of section 1101(a)(42)(B) as presumptively entitling a husband to asylum on the basis of his wife's forced abortion. See Matter of J-S-, 24 I. & N. Dec. 520, 536 (A.G. 2008); see also Xian Tong Dong v. Holder, 696 F.3d 121, 125 (1st Cir. 2012) (Attorney General's opinion in Matter of J-S- is a "reasonable interpretation" of statute).

The Attorney General acknowledged that section 1101(a)(42)(B) "does not explicitly exclude spouses from its purview." Matter of J-S-, 24 I. & N. Dec. at 530. However, he concluded that applicants whose spouses have been forced to undergo an abortion or involuntary sterilization procedure "must present proof, of which their spouse's treatment may be a part, of persecution for refusing to undergo forced abortion or sterilization procedures or for engaging in 'other resistance' to a coercive population control program." Id. at 535.

Following the Attorney General's decision, which petitioner does not challenge, Liu modified his asylum application. First, on October 21, 2009, he added an additional claim; he asserted that since his initial submission and meeting with the asylum officer, he and his wife had become adherents of Falun Gong, the spiritual discipline that is the target of a suppression campaign by the Chinese government. Liu claimed that his wife had been arrested in China for practicing Falun Gong and that he feared future persecution based on his own practice. Second, on November 9, 2009, Liu amended his original claim; he asserted for the first time that in 2003, when his wife was pregnant with their second child, Chinese officials came to his home and hit him, and that he was forced into hiding.

On November 10, 2009, Liu received a merits hearing before a Boston IJ and testified regarding the two grounds on which he sought asylum, withholding of removal, and CAT protection. In describing his claim based on his wife's abortion, he repeated the assertions in his original and amended application. Liu expounded somewhat on his assertion that he went into hiding; he claimed government officials abused him during this time, although he repeatedly failed to specify when or how, and he explained that although he was in hiding, he continued to work. In describing his claim based on his adherence to Falun Gong, Liu testified that he began practicing at his wife's suggestion in July 2008 and that his practice included weekly public exercises in Boston's Chinatown Park. He also testified that Chinese officials arrested his wife for practicing Falun Gong and held her from April to September 2009, during which time they deprived her of adequate food and physically abused her. In support of these claims, he submitted various letters and affidavits.

After considering Liu's testimony and supporting evidence, the IJ denied asylum, withholding of removal, and CAT protection. The IJ explained his reasoning in an oral decision, addressing first Liu's claim based on his wife's forced abortion. The IJ focused on the change of law announced in Matter of J-S- and noted that under the Attorney General's controlling interpretation of section 1101(a)(42)(B), Liu's claim as initially presented did not entitle him to asylum. Liu's later assertions that officials hit him and that he was forced into hiding lacked credibility, the IJ found. He concluded that Liu added these allegations only to establish that he had engaged in "other resistance" to the forced abortion program, as Matter of J-S- required. 24 I. & N. Dec. at 535. The IJ also found Liu's claim that he continued to work while in hiding "internally inconsistent." Finally, the IJ concluded that even if Liu were credible, his claimed abuse relating to his wife's forced abortion did not entitle him to asylum.

As for Liu's claimed practice of Falun Gong, the IJ expressed concern that Liu was trying "to end-run an asylum claim after there has been a change in the law having to do with his original claim." The IJ concluded that Liu's "non-credible testimony" regarding his "resistance to family coercive population control laws" was "convinc[ing]" evidence that he "is not a sincere believer in Falun Gong but, rather, has created that also in order to qualify for political asylum on a ground not contemplated by him when he fled China and came to the United States." The IJ concluded that although Liu did practice Falun Gong, his lack of sincere belief meant that he was not entitled to asylum.

Finally, because Liu failed to satisfy the requirements for asylum on the basis of either his wife's forced abortion or his own practice of Falun Gong, the IJ concluded that he also failed to satisfy the ...


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