12‐2258‐ag Meng v. Holder

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT ________________

August Term, 2014

(Argued: August 26, 2014 Decided: November 3, 2014)

Docket No. 12‐2258‐ag ________________

SUZHEN MENG,

Petitioner,

—v.—

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

Respondent. ________________ Before: WINTER, RAGGI, CARNEY, Circuit Judges. ________________

Petition for review of a Board of Immigration Appeals decision upholding

an order of removal and the denial of (1) asylum and withholding of removal on

the ground that the statutory “persecutor bar” precluded such relief given

petitioner’s two‐decade history of reporting women pregnant in violation of

1 China’s family planning policy to local authorities, knowing that many such

women would then be subject to forcible abortions or involuntary sterilizations;

and (2) relief pursuant to the Convention Against Torture because petitioner

failed to establish that it was more likely than not that she would be tortured if

returned to China.

Petition for review DENIED. ________________

GARY J. YERMAN, The Yerman Group, LLC, New York, New York, for Petitioner.

ALISON MARIE IGOE, Senior Counsel (Stuart F. Delery, Principal Deputy Assistant Attorney General; Lyle Jentzer, Senior Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. ________________

REENA RAGGI, Circuit Judge:

Petitioner Suzhen Meng is a native and citizen of the People’s Republic of

China who seeks asylum, withholding of removal, and relief pursuant to the

Convention Against Torture (“CAT”) based on past political persecution in

China, which she claims to have experienced because, as a local public security

officer, she refused to collect security fees and reported police corruption. Meng

now petitions this court for review of the May 9, 2012 decision of the Board of

2 Immigration Appeals (“BIA”) upholding the April 22, 2010 decision of

Immigration Judge (“IJ”) Javier E. Balasquide, which denied Meng such relief

and ordered her removal from the United States. See In re Suzhen Meng, No.

A089 224 906 (B.I.A. May 9, 2012), aff’g No. A089 224 906 (Immig. Ct. N.Y.C. Apr.

22, 2010).

Meng contends that the agency erred in concluding that the statutory

“persecutor bar” rendered her ineligible for asylum and withholding of removal.

See

(b)(2)(A)(i), 1231(b)(3)(B)(i). She maintains that her actions as

a public security officer, specifically, her reporting women pregnant in violation

of China’s family planning limitations to local authorities, were insufficient as a

matter of law to constitute “assistance” in persecution. Meng also challenges the

agency’s finding that she failed to carry her burden for CAT relief.

For the reasons explained in this opinion, we identify no error in the

agency’s rulings and, accordingly, we deny the petition for review.

I. Background

A. Meng’s Application for Relief

On February 25, 2008, Meng was admitted to the United States as a non‐

immigrant visitor with authorization to remain for six months. Five months

later, on July 24, 2008, Meng filed for asylum, withholding of removal, and CAT 3 relief, stating that she had suffered past political persecution when, as a public

security officer in her local community, she refused to collect a security fee from

residents and wrote a letter to the local public security bureau alleging that the

police chief was corrupt. Meng asserted that, as a result of these actions, her

passport was confiscated and she was arrested and held in custody for 14 days,

during which time a guard slapped her in the face several times and fellow

prisoners beat her on instruction of the guards. Ten months later, Meng’s

passport was returned when she promised not to engage in any further anti‐

government activities, whereupon she left China.

B. Meng’s Immigration Hearing

On September 16, 2008, Meng was charged as subject to removal for

having overstayed her visa. See

(a)(7)(A)(i)(I). At an October 1,

2009 hearing before the IJ, Meng pursued her claim for relief from removal by

testifying to the persecution alleged in her application. She also testified to her

job responsibilities as a public security officer, a position she had held for 22

years. Meng stated that, in that capacity, she oversaw approximately 1,100

households, and that her duties included reporting all pregnant women to

China’s family planning office, including women pregnant in violation of state

4 limitations. Meng understood that when she reported a policy‐violating woman

to authorities, that woman would be punished, typically by being forced to

undergo an abortion or sterilization. Indeed, she testified to having seen such

women dragged away forcibly by the police. Nevertheless, Meng voluntarily

continued to serve as a security officer and to make her reports, although she

sometimes advised women whom she would report as being pregnant in

violation of family planning policy to go into hiding or to flee.

C. Denial of Relief

On April 22, 2010, the IJ denied Meng’s application for relief and ordered

her removed. Although the IJ found Meng credible, he ruled that her active

assistance in the persecution of women pregnant in violation of China’s family

planning policy barred her from receiving asylum or withholding of removal.

The IJ further denied Meng CAT relief, concluding that she had failed to show

that it was more likely than not that she would be tortured if returned to China.

The BIA essentially agreed with the IJ and dismissed Meng’s appeal,

prompting this petition for review.

5 II. Discussion

A. Standard of Review

On a petition for review of a BIA decision, we apply the deferential

substantial‐evidence standard to the agency’s findings of fact, treating them as

“conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary.”

(b)(4)(B); see Shunfu Li v. Mukasey,

(2d Cir. 2008). We apply de novo review, however, to questions of law,

including whether an alien’s conduct could render her a “persecutor” as that

term is statutorily defined. See

(b)(2)(A)(i), 1231(b)(3)(B)(i);

Yanqin Weng v. Holder,

(2d Cir. 2009).

Where, as here, the BIA upholds the IJ’s decision and “closely tracks the

IJ’s reasoning, this Court may consider both the IJ’s and the BIA’s opinions for

the sake of completeness.” Maldonado v. Holder,

, 158–59 (2d Cir.

2014).

B. Asylum and Withholding of Removal: The “Persecutor Bar”

Asylum is a form of discretionary relief that allows an otherwise

removable alien to remain and work in the United States if she demonstrates that

she is a “refugee,” i.e., an alien who “is unable or unwilling to return to, and is

6 unable or unwilling to avail . . . herself of the protection of, [her native] country

because of [past] persecution or a well founded fear of [future] persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion.” See

(a), 1158(b)(1)(A), (b)(3), (c)(1);

(b), 1208.21; Mei Fun Wong v. Holder,

(2d Cir. 2011).

Withholding of removal, meanwhile, is a form of mandatory relief that prevents

the removal of an alien to a country where “the alien’s life or freedom would be

threatened . . . because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.”

(b)(3).

Both forms of relief are subject to a statutory “persecutor bar,” which

renders an alien ineligible for either asylum or withholding if she has “ordered,

incited, assisted, or otherwise participated in the persecution of any person on

account of race, religion, nationality, membership in a particular social group, or

political opinion.”

§§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see Xu Sheng Gao v.

U.S. Att’y Gen.,

, 97–98 (2d Cir. 2007). This court has identified four

factors relevant to determining when this persecutor bar applies: (1) “the alien

must have been involved in acts of persecution”; (2) a “nexus must be shown

between the persecution and the victim’s race, religion, nationality, membership

7 in a particular social group, or political opinion”; (3) if the alien “did not [herself]

incite, order, or actively carry out” the persecution, her conduct “must have

assisted the persecution”; and (4) the alien must have had “sufficient knowledge

that . . . her actions may assist in persecution to make those actions culpable.”

Balachova v. Mukasey,

, 384–85 (2d Cir. 2008) (internal quotation

marks omitted). Where evidence indicates that an alien assisted in persecution,

the alien seeking relief from removal bears “the burden of proving by a

preponderance of the evidence” that she “did not so act.”

(c); see

Zhang Jian Xie v. INS,

(2d Cir. 2006).

Here, the IJ and BIA concluded that Meng had assisted in the persecution

of women who became pregnant in violation of China’s family planning policy

because, in her role as a public security officer, she had reported such women to

Chinese authorities for more than two decades knowing that, as a result, any

number of these women would be subjected to forced abortions or sterilizations.

Meng does not—and cannot—dispute that forced abortions and involuntarily

sterilizations constitute persecution on a protected ground; they are statutorily

defined as such. See

(a)(42); Yan Yan Lin v. Holder,

(2d Cir. 2009) (“It is settled law that forced abortion is persecution on account

8 of political opinion.”). Nor does she dispute that women in her community who

became pregnant in violation of family planning policy were subjected to such

persecution. Instead, Meng contends that the record evidence was insufficient as

a matter of law to admit a finding that she “assisted” in such persecution. She

maintains that her actions in registering and reporting unauthorized pregnancies

were merely tangential, passive accommodations of the persecutory conduct of

Chinese family planning authorities, which Zhang Jian Xie v. INS,

, holds is not enough to constitute assistance in persecution. See also Xu

Sheng Gao v. U.S. Att’y Gen., 500 F.3d at 99–100 (holding mere association with

persecutory enterprise insufficient to trigger persecutor bar). Indeed, Meng

argues that Xu Sheng Gao requires evidence that one of her reports led to a

specific forced abortion or involuntary sterilization to admit a finding of

assistance. See

In fact, the cited precedents do not support Meng’s

arguments.

In Zhang Jian Xie, at the same time that this court observed that conduct

“passive in nature” and “tangential” to third‐party acts of oppression is

insufficient to manifest “assistance,” we stated that “active” conduct, having

“direct consequences for the victims,” can constitute “assistance in persecution.”

9

. Here, Meng’s conduct was clearly active and not passive. She

affirmatively identified pregnant women in her community, including those

pregnant in violation of China’s family planning policy, and she deliberately

reported these women to authorities. Nor was she merely associated with a

persecutory enterprise. She was integral to the effectuation of persecution.

Meng’s reporting of policy‐violating women was no “minor” action, but the

critical step that set in motion the entire persecutory scheme of enforcement. Cf.

(upholding agency’s imposition of persecutor bar even though petitioner’s

assistance was “arguably minor”). Indeed, without Meng’s reports, authorities

would not have known which women had violated family planning policy.

Moreover, Meng’s actions had direct consequences for the victims insofar as her

reports were the basis for women being subjected to forced abortions and

sterilizations. Meng not only admitted knowing that her conduct had this effect;

she testified that it was the reason she sometimes urged the women whom she

reported to hide or flee. Nevertheless, with knowledge that her conduct

triggered persecution, Meng voluntarily continued to serve for more than two

decades as a public security officer and to report women for unauthorized

pregnancies. This record was sufficient to admit the agency finding that Meng

10 assisted in persecution. See In re Suzhen Meng, No. 089 224 906, at 2 (finding

that “as a result of [Meng’s] actions, the Family Planning officials went to

women’s homes who had illegal pregnancies, seized them, and subjected them to

forced abortions and sterilizations”).

Xu Sheng Gao v. U.S. Attorney General compels no different conclusion.

In that case, the alien who reported offending booksellers to Chinese authorities

knew only that there was a possibility that the booksellers “could” be arrested

and imprisoned, but nothing indicated that any bookseller had, in fact, been

subjected to such treatment.

(emphasis in original). Rather, the

most serious sanction that petitioner knew ever to have been imposed on a

reported bookseller was revocation of a business license. See

It was in these

circumstances—with no evidence of persecution ever resulting from the alien’s

conduct—that we were “unable to conclude” that the alien had “the requisite

level of knowledge that his acts assisted in persecution to sustain a finding that

he was a ‘persecutor’ under the statute.”

. By contrast, here, Meng

admitted knowing that forced abortions and sterilizations were the typical

punishment meted out to women she reported for unauthorized pregnancies.

Where, as in this case, the occurrence of the persecution is undisputed, and there

11 is such evidence of “culpable knowledge that the consequences of one’s actions

would assist in acts of persecution,” Xu Sheng Gao specifically states that “the

evidence need not [further] show that the alleged persecutor had specific actual

knowledge that his actions assisted in a particular act of persecution.”

.1

Yanqin Weng v. Holder also affords Meng no support in challenging the

application of the persecutor bar to this case.

. In Yanqin Weng,

the petitioning alien, a nurse’s assistant, provided post‐surgical medical care to

women in China who had undergone forced abortions and, on one occasion, sat

outside the locked door of a room where women awaiting forced abortions were

being held until delayed doctors arrived to perform the procedures. See

. In concluding that the persecutor bar did not apply to these

circumstances, this court observed that the petitioner’s provision of post‐surgical

care did not contribute to the abortions. See

. As for petitioner’s

guarding women facing forced abortions, that one‐time occurrence was deemed

to have “deviated markedly from her routine duties” and lasted only ten minutes

1 Xu Sheng Gao also concluded that the reporting petitioner did not assist in persecution that reflected the discretionary decision of others at the end of an attenuated chain of authority. See 500 F.3d at 101–02. But where, as here, Meng’s reports regularly resulted in persecution, she knew that, and she nevertheless continued to report, we conclude that the agency has a substantial basis for finding assistance and applying the persecutor bar. 12 before petitioner, in fact, helped one of the women escape, which resulted in

petitioner losing her job.

Here, as already noted, Meng’s reporting of women

pregnant in violation of China’s family planning policy did contribute directly to

the forced abortion and sterilization of these women. Further, Meng engaged in

such reporting over a period of two decades. In short, her assistance in

persecution was not a single, marked departure from her duties, but a regular,

and important, aspect of her duties. While Meng may have encouraged some

women to hide or flee to avoid the persecution that she knew would follow from

her conduct, the record indicates that Meng nevertheless persisted in reporting

women with unauthorized pregnancies as long as she served as a public security

official.

Accordingly, because the record evidence was sufficient to support a

finding that Meng assisted in persecution, we identify no legal error in the

agency’s determination that the persecutor bar rendered Meng ineligible for

asylum or withholding of removal.

D. CAT Relief

A petitioner seeking CAT relief must demonstrate that it is “more likely

than not” that she will be tortured if removed to her home country. See 8 C.F.R.

13 § 208.16(c)(2); Yan Yan Lin v. Holder,

. Here, we identify no error

in the agency’s denial of CAT relief for failure to satisfy this requirement.

Meng essentially relies on evidence of her past 14‐day detention and

beatings to argue likely future persecution. We need not here decide if this

experience rose to the level of “torture,” but see

(a)(2) (defining

torture as “extreme form of cruel and inhuman treatmentʺ); Kyaw Zwar Tun v.

INS,

(2d Cir. 2006) (“[T]orture requires proof of something

more severe than the kind of treatment that would suffice to prove

persecution.”), because even assuming that the issue were resolved in Meng’s

favor, she would not have demonstrated agency error.

Past torture does not give rise to a presumption of future torture. Rather,

it serves as evidence of the possibility of future torture. See

(c)(3). Here, the following facts demonstrate why such a possibility

cannot be converted into the requisite likelihood: (1) after Meng’s release from

detention, she remained in China for more than 10 months without experiencing

any further harm; (2) Chinese authorities returned her passport, thereby allowing

her to travel outside China; and (3) Meng’s husband and children remain in

China unharmed. See Melgar de Torres v. Reno,

(2d Cir. 1999)

14 (holding that where family members remain unharmed in petitioner’s native

country, objective fear of future harm is undermined); see also Mu Xiang Lin v.

U.S. Dep’t of Justice,

(2d Cir. 2005) (upholding denial of CAT

relief where petitioner offered no “particularized evidence” that she would be

tortured in her country of removal). We therefore conclude that substantial

evidence supports the agency’s determination that Meng has not demonstrated

that it is “more likely than not” that she will be tortured if returned to China.

III. Conclusion

To summarize, we conclude:

1. The statutory persecutor bar rendered Meng ineligible for asylum and

withholding of removal because, for over 20 years, she reported the identities of

women with unauthorized pregnancies, knowing that, as a result, many of these

women would be subjected to forced abortions and sterilizations. This showing

was legally sufficient to demonstrate her assistance in persecution.

2. Meng is not entitled to CAT relief because she has not established that it

is more likely than not that she will be tortured if removed to China.

Accordingly, the petition for review is DENIED.

15