Xiu Ling Chen v. Alberto R. Gonzales, Attorney General of the United States

489 F.3d 861, 2007 U.S. App. LEXIS 13635, 2007 WL 1661584
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 11, 2007
Docket06-3980
StatusPublished
Cited by22 cases

This text of 489 F.3d 861 (Xiu Ling Chen v. Alberto R. Gonzales, Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Xiu Ling Chen v. Alberto R. Gonzales, Attorney General of the United States, 489 F.3d 861, 2007 U.S. App. LEXIS 13635, 2007 WL 1661584 (7th Cir. 2007).

Opinions

EASTERBROOK, Chief Judge.

Xiu Ling Chen has borne two children since entering the United States illegally in 2001. When caught, she requested asylum on the ground that China had compelled her to have an abortion in 1993. Involuntary abortion qualifies an immigrant as a “refugee” under 8 U.S.C. § 1101(a)(42)(B). At the hearing before an immigration judge, however, Chen conceded that her application and accompanying affidavit had been false — that she had never undergone an abortion but had committed perjury because she had been told that the claim would help her remain in this country. Chen now acknowledges that China did not mistreat her in any way. Nonetheless, Chen asserts, she is entitled to asylum because, having had two children, she will be sterilized should she return to China. She says that she wants to have additional children but that China will prevent this forcibly.

The immigration judge rejected that contention, following the State Department’s conclusion that China has switched from physical coercion to economic incentives as means of reducing the birth rate. That is indeed the declared policy of China’s central government, though Chen insists that many provincial officials do not follow the national government’s rules. The Board of Immigration Appeals affirmed, largely relying on Matter of C-C-23 I & N Dec. 899 (BIA 2006). In that [862]*862decision the Board canvassed the evidence about population policy in China — and in particular in Fujian, the province from which Chen hails — and concluded that women who have had children in the United States do not face a substantial risk of either compulsory abortions or sterilization on returning to China.

Chen maintains that the IJ and Board failed to evaluate the credibility of persons who provided affidavits stating that they had heard of involuntary abortions or sterilizations in Fujian. The Board is entitled, however, to respond to the normal conditions in a nation or region, and it need not change course every time an alien offers a slightly different mix of evidence. Hearsay — and for that matter accounts of personal experience, which may or may not be truthful (Chen’s initial account of her own experience concededly was not honest)— has limited bearing when the question is how a foreign nation as a whole treats its citizens. Domestic experience illustrates the point. American newspapers and television broadcasts are full of stories about automobile crashes and murders, but the mortality risk to any given person is tiny. Affidavits describing some auto accidents or shootings in Illinois would not demonstrate that the risk from these events in Illinois is substantial. Likewise affidavits relating personal experiences or tales about sterilizations in Fujian would not establish that a person in Chen’s position faces a material risk that this would happen to her.

To determine whether an alien faces persecution in a foreign land, the agency must separate normal from exceptional events. In Matter of C-C-the Board tried to do this with respect to Fujian’s family-planning policy. That’s a sensible way to proceed. Indeed, we have strongly urged the agency to do this, e.g., Banks v. Gonzales, 453 F.3d 449 (7th Cir.2006); Sahi v. Gonzales, 416 F.3d 587 (7th Cir.2005), and are gratified to see that the process of making risk assessments for particular groups and regions as a whole is under way. Cf. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (holding that a similar approach for the Social Security disability program is within the agency’s discretion, and that having adopted rules based on the normal effects of a condition the agency need not receive evidence that a particular situation is exceptional).

Unfortunately, however, the decisions in Matter of C-C — and Chen’s case got only part way. China may have switched from physical to financial instruments, but how substantial are the penalties for having what China sees as too many children? We know from decisions such as Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), and Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), that incentives differ from compulsion. Maher held that states may favor childbirth over abortion by subsidizing the former but not the latter, and that doing this does not offend the rule that states may not place substantial burdens on women who seek abortions. But these are modest incentives; China’s may be more substantial. The State Department’s latest country report says that “social compensation payments” as high as 10 years’ wages (of an average worker) may be assessed against families that have a third child. Is the threat of such a high payment equivalent to “force”? The Board did not address that subject in Matter of C-C—or Chen’s appeal.

Matter of T-Z-, 24 I & N Dec. 163 (BIA May 9, 2007), picks up where Matter of CC — leaves off. The Board concluded in Matter of T-Z—that financial incentives to have an abortion or undergo sterilization amount to “force” when “a reasonable per[863]*863son would objectively view the threats for refusing the abortion to be genuine, and the threatened harm, if carried out, would rise to the level of persecution.” 24 I & N Dec. at 168. Well, what’s “the level of persecution”? Adopting language in a committee report, the Board wrote that financial incentives become persecution when they amount to “the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.” Id. at 171. The Board wrapped up:

Government sanctions that reduce an applicant to an impoverished existence may amount to persecution even if the victim retains the ability to afford the bare essentials of life. A particularly onerous fine, a large-scale confiscation of property, or a sweeping limitation of opportunities to continue work in an established profession or business may amount to persecution even though the applicant could otherwise survive.

Id. at 174. A fine of 10 years’ income, imposed on someone who makes the normal wage in China, reasonably may be described as “particularly onerous.” The only practical alternative would be to avoid having more children, if necessary by abortion or sterilization.

That does not resolve matters in Chen’s favor, however, because it remains essential to know China’s actual policy. If the maximum lawful “social compensation payment” is collected only from people who can afford it (say, families that earn well above the average income or have substantial wealth), then it need not be onerous. Again consider the domestic situation. Some statutes authorize fines of $1 million or more, well above 20 years’ income for an average wage-earner, but these are rarely if ever levied on people who enjoy average or below-average earnings. They are imposed only on those who can afford to pay. The Board needs to decide (a) what financial exactions normally are used

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Bluebook (online)
489 F.3d 861, 2007 U.S. App. LEXIS 13635, 2007 WL 1661584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xiu-ling-chen-v-alberto-r-gonzales-attorney-general-of-the-united-states-ca7-2007.