Ai Chen v. Eric Holder, Jr.

742 F.3d 171, 2014 WL 448444, 2014 U.S. App. LEXIS 2202
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 5, 2014
Docket12-2279
StatusPublished
Cited by55 cases

This text of 742 F.3d 171 (Ai Chen v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ai Chen v. Eric Holder, Jr., 742 F.3d 171, 2014 WL 448444, 2014 U.S. App. LEXIS 2202 (4th Cir. 2014).

Opinion

Petition for review granted in part and denied in part by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge MOTZ and Judge KEENAN concurred.

TRAXLER, Chief Judge:

Petitioners Ai Hua Chen and Jin Xiu Li, both natives of China’s Fujian Province, met and married in the United States and are the parents of two children born to them here. Chen and Li admit they are subject to removal, but seek asylum and withholding of removal on the basis that one or both of them will be persecuted for having violated China’s one-child policy. The couple also seeks asylum and withholding of removal on the grounds that they will face persecution for their Christian faith upon returning to China. Despite finding both Chen and Li to be credible witnesses, the immigration judge (“IJ”) and the Board of Immigration Appeals (“BIA”), relying on an often-cited 2007 State Department report, China: Profile of Asylum Claims and Country Conditions (“2007 China Report”), concluded that neither petitioner established a well-founded fear of persecution.

For the reasons that follow, we grant the petition for review to the extent Chen and Li seek relief based on China’s one-child policy and remand that claim for further consideration by the agency. We deny the petition for review to the extent it is grounded on the religious faith of the petitioners.

I.

A.

Li arrived in the United States in June 2001 without valid entry documents and was placed in removal proceedings by the Department of Homeland Security (“DHS”). Li sought political and religious asylum, but an immigration judge denied his application in 2003 and the Board affirmed in 2005. In 2010, however, the Board granted Li’s motion to reopen.

Chen entered the United States in January 2003 on a nonimmigrant K-l visa. A K-l nonimmigrant visa, known colloquially as a “flaneé visa,” permits the foreign-citizen flaneé of an American citizen to travel to the United States to marry his or her citizen sponsor within ninety days of arrival. See 8 U.S.C. § 1101(a)(15)(K)(i). Chen’s flaneé sponsor, as it turned out, decided not to marry her. Chen, however, remained in the United States after the expiration of the ninety-day period. Chen and Li eventually met in 2005 and married in 2007.

Also in 2007, Chen gave birth to petitioners’ two children — the first in January and the second in December. Chen did not have legal status in the United States, however, and she worried that if she were ever forced to return to China, she and Li would be considered violators of China’s infamous one-child policy. Thus, in August 2007, while pregnant with petitioners’ second child, Chen applied for political asylum, which led to the DHS initiating removal proceedings against her for overstaying her visa. In 2011, the proceedings *175 against Chen were consolidated with Li’s reopened proceedings.

Chen and Li seek asylum on two identical grounds. First, Chen and Li claim that even though their children were born abroad, Chinese family planning officials would still consider the pregnancies to have been “out-of-plan” pregnancies and in violation of China’s family-planning regulations. Chen and Li believe that they would face fines, imprisonment and involuntary sterilization upon their return to China. On this basis, they seek political asylum, which is potentially available for any person who establishes “a well founded fear that he or she will be forced to undergo [involuntary sterilization]” or will be “subject to persecution” for “other resistance to a coercive population control program.” 8 U.S.C. § 1101(a)(42).

Li and Chen also seek religious asylum. As practicing Christians, Li and Chen claim that, if removed, they would be compelled by their beliefs to attend a “house church,” which is illegal in China. They fear that participation in such a church would result in their arrest and detention and that they would be coerced by the government to renounce association with the church.

B.

1.

Although the IJ found both Li and Chen to be credible witnesses, he concluded that they failed to prove that their genuine fear of future persecution under the family-planning policy was objectively reasonable. The IJ’s reasoning was twofold. First, he determined that Li and Chen failed to prove they are in violation of China’s family-planning policies. According to the 2007 China Report, upon which the IJ heavily relied, each married couple in the Fujian Province “is allowed to have one child without a birth permit.” J.A. 419. A second child, therefore, is not allowed unless the government grants permission ahead of time by issuing a birth permit. But the IJ found that children born abroad are. not counted against the number of children allowed unless the returning parents choose to register them as part of the household registration. The 2007 China Report states that

U.S. officials in China are not aware of the alleged official policy, at the national or provincial levels, mandating the sterilization of one partner of couples that have given birth to .two children, at least one of whom was born abroad.
... [T]he Population and Family Planning Commission of Fujian Province stated in an October 2006 letter that children born abroad, if not registered as permanent residents of China (i.e., not entered into the parents’ household registration), are not considered as permanent residents of China, and therefore are not counted against the number of children allowed under China’s family planning law____

J.A. 421-22.

Second, the IJ found that even if petitioners’ children “counted” for purposes of China’s family-planning law, Li and Chen would merely face fines or other economic penalties that do not rise to the level of persecution. Again, the IJ rested his factual determination on the 2007 China Report, which states that “[according to the Fujian Provincial Birth Planning Committee (FPBPC), there have been no cases of forced ... sterilization in Fujian in the last 10 years.” The Report, however, also acknowledges that “[i]t is impossible to confirm this claim” and cited reports of forced sterilizations in 2006. J.A. 418. The 2007 China Report notes that the FPBPC claims provincial officials impose only eco *176 nomic penalties — “social compensation fees” — upon violators, not physically coercive sanctions. J.A. 419. According to the 2007 China Report, however, for returning Chinese nationals who are the parents of U.S.-born children, even such economic penalties would be triggered only if the parents decided “to register their children as Chinese permanent residents in order to gain free ... educational and other social benefits.” J.A. 422.

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742 F.3d 171, 2014 WL 448444, 2014 U.S. App. LEXIS 2202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ai-chen-v-eric-holder-jr-ca4-2014.