2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-1-2004 

# F a n g v . Att y Ge n U S A
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ock e t N o . 03-2486

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w . v i l l a no v a . e du/thir dc ir c uit_2004/158* Honorable Joseph E. Irenas, Senior United States Dis trict Judge for the Distric t

of New Jers ey , sitt

ing by designat ion. NOT PRECED ENTIAL

UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT

No. 03-2486

MENG RONG F

ANG , Appellant

v. JOHN ASHCROFT , ATTORNEY GENERAL OF THE UNITED STATES; BUREAU OF I

MMIGRAT ION AND C USTOM ENFO RCEMENT

On Petition for Review from the Board of Immigration Appeals Agency No. A77-775-268

Submitted Un der Third C ircuit LAR 3 4.1(a): October 1, 2004 Before: ROTH and CHERTOFF , Circuit Judg es, and IRENAS , * Senior District Judge. (Filed Nove

mber 1, 2004)

OPINI ONCHERTOFF , Circuit Judge

. Appellant Meng Rong Fang (“Meng Rong”) challenges t he order of t

he Board of Immigr atio n Ap peal s aff irmin g wi tho ut o pin ion the d enia l of his a ppl icati on f or as ylum, withhold ing of remov al, and relief u nder the Co nvention Against To rture. We will remand to the Bo ard with direc tions to con sider the appe al on the merits. Meng Rong was appr

ehended by

the Unite d StatesCoast Guar d while being smuggled to Guam. He demonstr ated a credible fear of perse cution during his interview in Honolulu, Hawaii. He was later ser ved with a Notice to Appear charging that he was subject to remov al as an alien witho ut a valid entry document. Meng Rong applie d for asy lum, withholding of re

moval, and reli ef under the Convention Against Tortur e on the ground t

hat he had be en subject

to past pe

rsecut ion and feared future persecution on account of his opposition to, and violation of, China’s coercive population control laws. At his as ylum hearing, Meng Rong testified as follows: After he and his wife had their first child, hiswife was required to obtain an intrauterine de vice (IUD) to prevent fu rther pregn ancies. Later, she h ad a private phys ician r

emove t he IUD, and Meng Rong’s wife be came pregnant with their

second child. When the “illegal ” pregnancy wasdiscovered by a uthorities, they

demanded an exorbita nt fine to a

vert a for ced abort ion and ste

riliz ation. Me

ng Rong paid the fine, but a few day s late

r, addit ional offic ials a

rrived a nd demande d a second pa ym ent. During1 The Imm igrati on Judge als o reject ed the cl aim t

hat res pondent could invoke asy lum on the ground t hat he mig ht be p ers ecut

ed bec ause

of his cousin’s m

urder of a government o fficial. Becau se of our d isposition o f this appeal, w e do not ad dress this issue. the course of

an argument be tween Meng Rong an d the off icials, Meng Ro ng’s cousin assaul ted and fatally

wounded one of the offi cials . Membe rs of the fa

mily then fled. The Imm igrati on Judge (“I

J”) found Meng Rong’ s test imony credibl e, but determined that it did not suff ice as a matter of law to satisfy the requirements of asylum. The IJ correctly noted th at under the c urrent definition, past p ersecution is establish ed if someone has been compell ed to undergo an abortion or sterilization, or has been persecuted for refusing to under go those proc edures, “or for othe r resi stance

to a coer cive population c ontrol progr

am.”8 U.S.C. §1101(a

)(42). He re, the re was no a

bortion or sterilizat ion. What

rema ined was t

he questi on whether a

n excess ive and punit

ive fine levied as punishment for an unauthorized pregnancy constituted persecution for “other resistance t

o a coercive population control program”, under the so-c alled “elast ic clause” of the asy lum st atute. Acknowledging t

hat thisquestion wa s one of firs t impr ession for the BIA, the IJ co ncluded th at monetary punishment for a n unauth orized preg nancy did not rise to the lev el of persecu tion required by the elastic clause. The IJ also implicitly rejected the f orced implantation of the IUD as a sufficien t basis to establish p ast persecution under the elasti c clause. 1 Under itssummary

“stre amlining” proce dure, the BIA affirm

ed the IJ decisi on by order of a single appellate j udge.On this appeal, Meng Rong challenges the decision of the imm igration authorities on the me rits, but also ur

ges that the Board vi olated its own regul ations by employ ing a

summary affirmance proc edure in t he face of t

he novel le gal iss ues posed by this as yl um applica tion. The gove

rnment argues t hat thiscourt hasno jurisdic tion to review the strea mlining decisi on of the BIA, s ince tha t is a pur e mat ter of exe cutive di scret

ion, and, in any event, that the discreti on was reasonably exercised here. We

disagree. The validity

of the str eaml ining proce dure was upheld by this cour t in Dia v. Ashcr oft , 353 F.3d 228 (3d Cir . 2003)(en ba nc). More

recent ly , we addre ssed the government’s co ntention th at the decision to streamline is a matter of unrev iewable agency discre tion in Smriko v. Ashcr oft , __ F.3d _ _, 2004 W L 238 1946, at *1 2 (3d C ir. Oct. 26, 2004) . We

reje cte d the n otion

that the s tre aml

iningdeci sion i s bey

ond re view, observing that the regulatio ns set forth d iscernable stand ards for making that decision. 8 C.F.R. § 3.1(e)(4)(i)(A)-(B) ( now § 1003.1(e)(4)(i)(A)-(B)). That bring s us to the go vernment’s secon d claim: That streamlining is ap propriate under the r

egulati ons becaus e “‘the

issueson appeal a

re squar ely controll ed by

existing Board or federal court precedent’ . . . or the ‘factual and legal questi ons raised on appeal are not s o substant

ial tha t the ca se warr

ants the issuanc e of a writ

ten opinion in the

case. ’” (Appellee Br. 29). We ha ve difficul

ty accept ing this c ontention unde

r eithe r of the two the ories t

hat Meng Rong hasadvanced. As to the t heory that punit

ive finesfor an unlawful birth cou ld constitute p ersecution un der the elastic clause, th e IJ himself state d: “That i ssue would be one of first

impre ssion for t

he Board of Im

migra tionAppeals, since t he Board hasnot issue d a prece dent [sic ] decisi on in terms of any allegation that a f ine alone wo uld be suf ficient to con stitute persectuion in a family planning cont

ext.” (App. 77) As to t

he forced implant

ation of the

IUD, the gove

rnment concedes b efore this cou rt that the “Board and the Circu it Courts hav e not specifica lly addressed whether a woman who unwillingly acquiesced to obtaining an IUD ‘has been pers ecut ed. . .’” under

the elas ticcla

use. (Gove

rnment Br . 17). In li ght of t hese two admis sions, we

are fra nkly baffled at

how the governm

ent can s eriousl

y ur ge that t he issues on appeal before the BIA were “squarel y controll ed by exist

ing Board or federal court precedent” or are insubsta ntial. 8 C.F.R. § 3.1(e)(4)(i)(A)-(B). Occasi ons on which we r emand t o the BIA for a

n abuse of it s stre amlining decision ought to be few and far between. But if there is ever a cas e in which that streamlining decision was an abuse of discretion , this is it. We will rema nd the cas e to the BI

A to addres s it on the

merits. We

intimate no view as to wh at the correct resolu tion of th ese legal issues shou ld be, but w ill address them in the futu re, if necessary, with the ben efit of the B oard’s consid ered views.