Biru Chen v. U.S. Attorney General

181 F. App'x 951
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 26, 2006
Docket05-16003; BIA A97-669-506
StatusUnpublished

This text of 181 F. App'x 951 (Biru Chen v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Biru Chen v. U.S. Attorney General, 181 F. App'x 951 (11th Cir. 2006).

Opinion

PER CURIAM:

Biru Chen, a Chinese National, petitions for review of the Board of Immigration Appeals’s (BIA) decision affirming without opinion an Immigration Judge’s (IJ) order of removal and denial of his asylum and withholding of removal claims under the Immigration and Naturalization Act (INA) and the United Nations Convention Against Torture (CAT). On appeal, he argues that the IJ’s adverse credibility determination was not supported by substantial evidence and his asylum and withholding of removal claims should have been granted. For the reasons set forth more fully below, we deny the petition.

According to a notice to appear issued on January 5, 2004, Chen entered the United States on or about December 29, 2003, and was charged under INA *953 § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), with removability for being an immigrant who was not in possession of a valid visa, reentry permit, border crossing identification card, or other valid document as required by the Attorney General. In March 2004, Chen signed an application for asylum, withholding of removal, and relief under CAT, alleging persecution on account of his political opinion.

In his application, Chen admitted that he spoke both Fuzhou and Mandarin and indicated that he sought asylum because his wife, after giving birth to a second child, was taken away and sterilized, and, several years later, when the government began enforcing the family planning policies more strictly, he was fined 1200 yuan that he paid in installments. Chen further admitted that, when he was first interviewed, he said he fled to avoid the fine, but that was incorrect and he begged the forgiveness of the U.S. government. If returned to China, he feared that he would be arrested and tortured because the government would know that he opposed the family planning policy and applied for asylum in the United States. Chen’s application indicated that he stopped in Hong Kong and two unknown countries en route to the United States.

Also included in the administrative record was the State Department’s China Country Report on Human Rights Practices, issued March 31, 2003. Relevant to Chen’s claim, the Chinese government implemented a new “Population and Family Planning” law, intending to standardize the implementation of the “birth limitation” policies in the local provinces. The new law required counties to use quotas or other measures to limit the total number of births in each county, as well as requiring married couples to apply for permission to have a second child if they met the stipulated requirements of the local provinces, which sometimes require as many as four years between pregnancies. The law requires couples who have an unapproved child to pay a “social compensation fee.” In some poorer, rural areas, couples were permitted to have two children. According to local regulations in at least one province, women who did not qualify for a certificate permitting them to have a child were required to use an intrauterine device (IUD), and were required to undergo quarterly examinations to ensure that it remained properly in place. As for sterilization, central government policy formally prohibits the use of physical coercion to compel persons into abortion or sterilization, although some local officials were reported to have used physical coercion, and under the “state compensation law,” citizens may sue officials who exceed their authority in implementing birth planning policy.

The record also included a 2004 State Department Profile of Asylum Claims for China. It indicates that roughly half of Chinese citizens seeking asylum in the United States cite China’s family planning policy as their reason. The report notes that enforcement and implementation is difficult to track and varies from locale to locale. Couples who have an unauthorized second child are often required to pay a “social compensation fee.” The report also notes that central government policy prohibits the use of physical coercion to compel sterilization, and, while there are reports of coercion in rural areas, most observers believe that the frequency of such cases is declining. Persons returned to China after deportation are rarely fined or abused and generally have been repatriated. Several other documents included in the record generally confirm that China *954 has a family planning policy, that there are occasional reports of forced sterilization, and that fines or “social compensation fees” are often required when a couple has an unauthorized child. Notably, there is a de-classified state department document, which states that there is “no evidence of persecution in Fujian of those with more than one child. The established policy is for the offender to pay a fine for the extra child ... after which the family continues without any hassles from the government.”

Chen also submitted several additional documents, one of which was a letter, purportedly written by his wife, stating that she and Chen were officially registered as married in 1990, and that she and Chen had a son born in 1986 and a daughter born in 1990. Also included were two illegible photocopies of something that may have been an x-ray. Two medical opinions state that the x-rays show blocked fallopian tubes. There is also a photograph of an unidentified stomach. Chen also submitted what appear to be receipts showing payments made toward a “[f]ine for overbirth.”

Finally, the record contains a transcript of an interview conducted by an immigration officer conducted on December 29, 2003, the day Chen arrived in the United States. Chen swore to tell the truth and indicated that he understood the questions being asked of him. He then told the immigration officer that his wife arranged his travel to the United States, that he went through Hong Kong and two unknown countries prior to arriving in the United States, and he had not filed for political asylum in any of the countries through which he traveled. Chen then stated that he left China because he violated China’s birth control policy, was unable to pay the fine, and had his house torn down by the local government. On January 2, 2004, Chen was interviewed again for a “credible fear” determination, and the notes of that interview indicate that Chen, consistent with his initial interview, said that he had exceeded China’s birth limits in 1996, was ordered to pay a fine, and did not have the money to do so. Unable to pay the fine, Chen ran away and went to live in another province, and when the government found out that he had run away, it tore his house down.

At a preliminary hearing, Chen admitted the allegations in the notice to appear and conceded removability. Later, Chen testified that he was married in 1984, but did not register his marriage with the Chinese government until 1990. Chen’s first child was born in 1986, and he later had another child in 1990. Chen testified that he left China because his wife was forced to undergo sterilization in 1991 under China’s family planning policy. Chen then said that, after the birth of their first child, Chen’s wife had an IUD inserted, but at some point the IUD dropped out and was lost, permitting her to have a second child.

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181 F. App'x 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biru-chen-v-us-attorney-general-ca11-2006.