06-2959-ag Xia v. Mukasey 1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term, 2006 7 8 9 (Argued: April 24, 2007 Decided: December 7, 2007) 10 11 Docket No. 06-2959-ag 12 13 - - - - - - - - - - - - - - - - - - - -x 14 15 XIU FEN XIA, 16 17 Petitioner, 18 19 -v.- 20 21 MICHAEL MUKASEY, Attorney General,* 22 23 Respondent. 24 25 - - - - - - - - - - - - - - - - - - - -x 26

27 Before: JACOBS, Chief Judge, KEARSE and POOLER, 28 Circuit Judges. 29 30 Petition for review of a final decision and order of

31 removal of the Board of Immigration Appeals affirming in

32 part an immigration judge’s denial of an application for

33 asylum, withholding of removal, and relief under the

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael Mukasey is automatically substituted for former Attorney General Alberto Gonzales as a respondent in this case. 1 Convention Against Torture.

2 Petition denied.

3 JOSHUA BARDAVID, Law Office of 4 Joshua Bardavid, New York, New 5 York (Peter D. Lobel, New York, 6 New York, on the brief), for 7 Petitioner. 8 9 NICOLE N. MURLEY, United States 10 Department of Justice, Office of 11 Immigration Litigation, 12 Washington, D.C. (Judy K. Hunt 13 and David P. Rhodes, Assistant 14 United States Attorneys, for 15 Paul I. Perez, United States 16 Attorney for the Middle District 17 of Florida, Tampa, Florida, on 18 the brief), for Respondent. 19 20 DENNIS JACOBS, Chief Judge: 21 22 Petitioner Xiu Fen Xia, a native and citizen of China,

23 seeks review of a May 25, 2006 order of the Board of

24 Immigration Appeals (“BIA”) affirming in part the December

25 7, 2004 decision of the Immigration Judge denying Xia’s

26 applications for asylum, withholding of removal pursuant to

27

(b)(3), and withholding of removal pursuant

28 to the Convention Against Torture (“CAT”). In re Xia, No.

29 A98 228 356 (B.I.A. May 25, 2006), aff’g No. A98 228 356

30 (Immig. Ct. N.Y. City Dec. 7, 2004). Xia claims that she

31 arranged to have an abortion in order to avoid adverse

32 consequences, possibly including the harsh treatment and

2 1 substandard medical conditions attributed to an abortion or

2 sterilization at the hands of Chinese government cadres;

3 that she was thus subjected to a forced abortion under

4 China’s family-planning policy; and that she is therefore a

5 “refugee” as that term is defined in

(a)(42).

6 The BIA concluded that her abortion was not “forced”

7 within the meaning of § 1101(a)(42) because “the Chinese

8 government was completely unaware of her pregnancy and did

9 not know that she had an abortion.” In re Xia, No. A98 228

10 356, at 2 (B.I.A. May 25, 2006). We agree; and therefore we

11 deny the petition. “An abortion is not ‘forced’ within the

12 meaning of the refugee definition . . . unless the

13 threatened harm for refusal would, if carried out, be

14 sufficiently severe that it amounts to persecution.” In re

15 T-Z-,

(B.I.A. 2007). Because no

16 government official was aware of Xia’s pregnancy, she has

17 not sufficiently established a threatened harm, let alone a

18 threatened harm so severe as to rise to the level of

19 persecution.

20

21 I

22 Xia is a 32-year-old woman from Wenzhou City, Zhejiang

3 1 Province, China. In 2003 Xia arrived in the United States;

2 and in 2004 she applied for asylum, withholding of removal,

3 and relief under the CAT. One month later the government

4 instituted removal proceedings against her.

5 At a hearing on December 7, 2004, Xia testified as

6 follows: she and her husband were married in 1995; she gave

7 birth to a child in 1997 and was fined 5,000 RMB because the

8 marriage had not been registered at the time she gave birth;

9 the Chinese government forced her to use an IUD in 1998; she

10 was required to receive “checkups” three times a year to

11 ensure that the IUD was in place and that she was not

12 pregnant; she became pregnant before her October 2000

13 checkup; her resulting dilemma was that if she skipped the

14 October checkup, she would have been arrested, but if she

15 attended the checkup, officials would have discovered the

16 pregnancy.

17 Xia testified that if officials discovered her

18 pregnancy she could be subject to the following punishments:

19 “I would get sterilized right away”; “I would pay a really

20 heavy fine”; “they will take me forcibly for an abortion”;

21 “they are going to arrest my famil[y] members”; and the

22 “Government will come to arrest me.” Therefore (she says)

4 1 she decided to obtain an abortion, even though she “really

2 [didn’t] want to have [it].” Xia also testified, however,

3 that she obtained the abortion because: “If we have this

4 child[,] when it grows up where is the baby going to

5 stay[?]”

6 Before the scheduled October checkup, Xia went to a

7 private hospital and aborted her pregnancy; the government

8 did not know of her pregnancy or the abortion.

9

10 II

11 The IJ denied Xia’s applications on the alternate

12 grounds that Xia was not credible and that (even if she were

13 credible) her testimony established that the termination of

14 her pregnancy was voluntary rather than forced. In re Xia,

15 No. A98 228 356, at 12-13 (Immig. Ct. N.Y. City Dec. 7,

16 2004). The BIA did not affirm the IJ’s adverse credibility

17 finding, In re Xia, No. A98 228 356, at 1 (B.I.A. May 25,

18 2006), but agreed with the IJ that Xia “did not establish

19 her eligibility for asylum, withholding of removal and

20 protection under the [CAT] . . . [because] she chose to

21 undergo an abortion by a private doctor . . . [and] the

22 Chinese government was completely unaware of her pregnancy

5 1 and did not know that she had an abortion,” id. at 1-2.

2 Xia’s petition for review argues that she is eligible for

3 asylum because the circumstances of her abortion “meet the

4 definition of ‘forced’ within the meaning of

1101(a)(42)(B) . . . [and] fit[] perfectly within the

6 ordinary meaning of the word ‘force.’”1 She does not

7 meaningfully challenge the BIA’s decision with respect to

8 her applications for withholding of removal or relief under

9 the CAT.

10 We review the BIA’s factual findings under the

11 substantial evidence standard and treat them as “conclusive

12 unless any reasonable adjudicator would be compelled to

13 conclude to the contrary.”

(b)(4)(B). The

14 BIA’s application of law to fact is reviewed de novo. See

15 Yi Long Yang v. Gonzales,

(2d Cir. 2007);

16 see also Jin Shui Qiu v. Ashcroft,

(2d

17 Cir. 2003).

18

1 Xia also argues that she “suffered past persecution and has a well founded fear of future persecution when she had an IUD forcibly inserted.” But this point was not raised before the BIA, so we do not address it here. See Lin Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2007). 6 1 III

2 Under the Immigration and Nationality Act (“INA”), a

3 petitioner is eligible for asylum if she suffered past

4 persecution or has a well-founded fear of future persecution

5 on account of a statutorily-defined protected ground. See 8

(a)(42); see also Jin Shui Qiu,

148. The INA was amended in 1996 to provide that “a person

8 who has been forced to abort a pregnancy . . . or who has

9 been persecuted for failure or refusal to undergo such a

10 procedure or for other resistence to a coercive population

11 control program shall be deemed to have been persecuted on

12 account of political opinion.”

(a)(42).

13 The INA does not define “forced,” and the term affords

14 latitude for interpretation. In such circumstances, “[w]e

15 defer to the BIA’s reasonable constructions of the

16 immigration laws.” Kyaw Zwar Tun v. INS,

, 562

17 (2d Cir. 2006); see also Jian Hui Shao v. BIA,

,

18 502 (2d Cir. 2006) (“[T]he BIA is entitled to deference when

19 it interprets the [INA].”). When this appeal was heard, the

20 BIA had yet to issue a construction (reasonable or

21 otherwise) of the term “forced.” However, two weeks after

22 oral argument the BIA decided In re T-Z-, which undertook to

7 1 “derive the meaning of a ‘forced’ abortion.” 24 I. & N.

2 Dec. at 167. Both parties contend that In re T-Z- supports

3 their positions; neither argues that In re T-Z- is

4 unreasonable and therefore undeserving of Chevron deference.

5 Accordingly, we have no occasion to decide whether such

6 deference is due.

7 In re T-Z- concluded that:

8 the question whether an abortion is “forced” 9 within the meaning of [§ 1101(a)(42)] should be 10 evaluated in terms of whether the applicant would 11 have otherwise been subjected to harm of 12 sufficient severity that it amounts to 13 persecution. Therefore, an abortion is “forced” . 14 . . when a reasonable person would objectively 15 view the threats for refusing the abortion to be 16 genuine, and the threatened harm, if carried out, 17 would rise to the level of persecution. 18 19 . . . . 20 21 . . . Persecutory force . . . is force which, 22 if carried out, would meet or exceed the level of 23 harm require to demonstrate persecution. The term 24 “persecution” is not limited to physical harm or 25 threats of physical harm and may include threats 26 of economic harm, so long as the threats, if 27 carried out, would be of sufficient severity that 28 they amount to past persecution. Not all threats 29 of fines, wage reduction, or loss of employment, 30 however, will suffice to indicate that submission 31 to an abortion was “forced” . . . . 32 33 . . . . 34 35 36 . . . The statute requires that the abortion 37 be “forced,” not merely that a person choose an

8 1 unpreferred course of action as the result of some 2 pressure that sways the choice. The mere fact of 3 submission to pressure only tells us that the 4 particular person’s preference was altered. It is 5 insufficient, by itself, to tell us the level of 6 that pressure or whether it reasonably can be 7 equated to “force.” 8 9

.

10

11 IV

12 We agree with the BIA’s conclusion that Xia’s abortion

13 was not forced. Xia concedes that the Chinese government

14 was unaware of her pregnancy. Therefore, Xia’s list of

15 potential punishments (sterilization, fine, arrest, forced

16 abortion, or arrest of family members) is not a list of

17 harms that were threatened; rather, it is a list of worries

18 about what punishment Xia might have faced had government

19 officials eventually learned of her pregnancy. But based on

20 Xia’s decision to terminate her pregnancy, these

21 contingencies never developed in fact or as threat.2

22 The distinction drawn by In re T-Z- between “submission

23 to pressure” and “force,”

,

2 Nor has Xia established the existence of a universal law or custom or practice having the force of law ensuring that she would have suffered a forced abortion or sterilization.

9 1 requires evidence as to the pressure actually exerted on a

2 particular petitioner. Xia cannot establish that she faced

3 a threat that amounted to persecution without the threshold

4 showing that a palpable threat existed. For example, Xia

5 claims that she or members of her family might have been

6 arrested had she not undergone the abortion; but because

7 this risk of arrest was hypothetical, Xia cannot establish

8 that the circumstances surrounding the arrest would have

9 risen to the level of persecution. See, e.g., Beskovic v.

10 Gonzales,

, 226 & n.3 (2d Cir. 2006) (stating

11 that detention without physical abuse does not always

12 constitute persecution and requiring a “case-by-case”

13 inquiry). Similarly, she cannot establish that she risked

14 “anything more than modest fees or fines,” which also would

15 not rise to the level of persecution. Jian Xing Huang v.

16 INS,

(2d Cir. 2005) (per curiam).

17 Xia contends that the threatened harms are not

18 speculative, because government officials would have

19 certainly discovered her pregnancy at the October checkup.

20 This argument fails. However, even if it were certain that

21 Xia would face some punishment following the October

22 checkup, speculation as to what that punishment might have

10 1 been cannot establish that the threatened harm would have

2 risen to the level of persecution. Not all punishment is

3 persecution. See, e.g., Beskovic,

. Because

4 Xia provided no evidence regarding the risks associated with

5 an arrest of uncertain duration, let alone the risk of

6 sterilization or forced abortion, she did not establish a

7 threat of persecution. See

8 We recognized before In re T-Z- that an “essential”

9 element of force is “that the agents of coercion were

10 government birth control officials.” Jin Shui Qiu,

at 151; see also

(“A forced sterilization . . . can be

12 effected by one arresting official or ten; with an arrest in

13 the morning or the evening, in the rain or in the sunshine;

14 with a detention for no longer than the time it takes to

15 perform the surgery, or a detention for a term of years . .

16 . .”); cf. Lau May Sui v. Ashcroft,

(8th

17 Cir. 2005) (reading “force” to require “that Chinese

18 officials used some sort of physical force or undue pressure

19 with the intent to cause, and which did cause, the

20 particular abortion in question,” and concluding that the

21 petitioner did not establish force where “it is undisputed

22 that no Chinese official knew at the time that [the

11 1 petitioner] was pregnant”). Here, the record is clear that

2 no government official was aware of Xia’s pregnancy or her

3 abortion; therefore no government official forced Xia to

4 terminate her pregnancy.

5 Xia relies on two Ninth Circuit cases: Ding v.

6 Ashcroft,

(9th Cir. 2004), and Wang v.

7 Ashcroft,

(9th Cir. 2003). However, the

8 BIA has expressly “disagree[d] with . . . the decisions in

9 Ding and Wang to the extent that they suggest that threats

10 of economic harm that do not rise to the level of

11 persecution, if carried out, would suffice to demonstrate

12 that an abortion was ‘forced’ within the meaning of the

13 statute.” In re T-Z-,

. And even in

14 Ding and Wang, government officials were actually aware of

15 the petitioner’s pregnancy and took direct measures targeted

16 against the petitioner to compel her to undergo an abortion.

17 See Ding,

(holding that abortion was forced

18 when government officials forced the petitioner “into a van,

19 to a hospital, into a room, and onto a surgical table for

20 the abortion” before the petitioner submitted); Wang, 341

21 F.3d at 1020 (9th Cir. 2003) (holding that abortion was

22 forced when government officials “harassed [the petitioner]

12 1 by either deducting her wages, threatening her job

2 stability, or threatening to impose unreasonably high fines”

3 until the petitioner “submitted to the pressure”).

4

5 V

6 Xia’s supplemental brief concedes that [i] the record

7 “is . . . largely deficient” as to Xia’s financial situation

8 and her ability to pay a fine, and [ii] the record “is

9 significantly devoid of any discussion regarding what, if

10 any, economic deprivation Ms. Xia feared.” Accordingly, Xia

11 requests a “remand for further fact-finding” so that she can

12 adduce additional evidence of her fear.

13 Xia’s request must be denied. We cannot order the BIA

14 to reopen the record for the taking of additional evidence

15 where, as here, “the agency regulations set forth procedures

16 to reopen.” Xiao Xing Ni v. Gonzales,

(2d

17 Cir. 2007). The appropriate avenue for such relief would be

18 to file a motion to reopen in the agency. See

1003.2(c). In any event, Xia already has had a reasonable

20 opportunity to present the evidence she now seeks to add to

21 the record. Even before In re T-Z-, the seriousness of a

22 potential fine and the effect of such a fine were held to

13 1 have bearing on the question of persecution. See

2 Ivanishvili v. U.S. Dep’t of Justice,

(2d

3 Cir. 2006). She therefore had an incentive to present

4 evidence of the economic hardship she would face; and she

5 offers no explanation for why she did not, or why she should

6 be allowed to do so now when she did not do so then.

7 Xia’s request for a remand to supplement the record

8 raises a collateral issue that should be (briefly)

9 addressed. The BIA did not apply In re T-Z- in Xia’s case

10 because the decision had not yet issued. The Supreme Court

11 has instructed that “a court reviewing an agency decision

12 following an intervening change of policy by the agency

13 should remand to permit the agency to decide in the first

14 instance whether giving the change retrospective effect will

15 best effectuate the policies underlying the agency’s

16 governing act.” NLRB v. Food Store Employees Union, 417

, 10 n.10 (1974). But the Court’s instruction does

18 not compel a remand here.

19 First, neither party has requested a remand for the

20 purpose of determining whether In re T-Z- should be applied

21 to Xia retrospectively. Both Xia and the government agree

22 that In re T-Z- governs Xia’s petition; and even Xia’s

14 1 request for the taking of additional evidence presupposes

2 that the evidence would be relevant to meet the standard set

3 out in In re T-Z-. She does not argue that it would be

4 unfair to apply In re T-Z- or that In re T-Z- would result

5 in a different or unfavorable outcome.

6 Second, and more fundamentally, neither party contends

7 that In re T-Z- represents a “change of policy” by the BIA.

8 Rather, In re T-Z- amounts to a formal articulation of the

9 standard that was actually applied in the BIA’s resolution

10 of Xia’s case. If, as here, the BIA’s initial unpublished

11 decision was proper and supported by substantial evidence,

12 then a subsequent precedential BIA decision that validates

13 the agency’s initial reasoning does not constitute a “change

14 of policy”--and Food Store Employees therefore does not

15 justify a remand.

16 Our refusal to remand in this case does not leave

17 future petitioners defenseless against the application of

18 strict new standards set forth in intervening decisions, or

19 deprive them of the benefit of new more favorable decisions.

20 If such decisions are truly new, then petitioners can seek

21 remand under Food Store Employees so that the BIA can

22 determine in the first instance if the new rule should be

15 1 applied to the petitioner’s case. Or, if the rule

2 represents an irrational departure from prior decisions, it

3 is possible that the rule itself would be “overturned as

4 arbitrary, capricious, or an abuse of discretion.” INS v.

5 Yueh-Shaio Yang,

(1996) (internal quotation

6 marks and emendations omitted). But there is no need to

7 remand where, as here: [i] the BIA’s decision is supported

8 by substantial evidence; [ii] no valid challenge is raised

9 against Chevron deference; [iii] the intervening decision

10 supports and validates the reasoning of the decision under

11 review; and [iv] the intervening decision does not amount to

12 a pivot in agency policy.

13

14 * * *

15 For the reasons set forth above, the petition is hereby

16 denied. Having completed our review, this Court’s previous

17 order granting a motion for stay of removal is vacated, and

18 the motion for a stay of removal is dismissed as moot.

19

16