10-1544-ag

Chen v. Holder

BIA

Weisel, IJ

A079 630 182

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING

A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Daniel Patrick Moynihan United

States Courthouse, 500 Pearl Street, in the City of New York, on

the 17th day of June, two thousand eleven.

PRESENT:

JOHN M. WALKER, JR.,

PIERRE N. LEVAL,

ROSEMARY S. POOLER,

Circuit Judges. 

_____________________________________

GUO YING CHEN,

Petitioner, 

 v. 10-1544-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Theodore N. Cox, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Anthony C. Payne, Senior Litigation

Counsel; Jesse M. Bless, Trial Attorney,

Office of Immigration Litigation, United

States Department of Justice, Washington,

D.C.
-2-

UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED, that the petition for review is GRANTED.

Guo Ying Chen, a native and citizen of the People’s Republic

of China, seeks review of an April 13, 2010, decision of the BIA,

affirming the January 7, 2009, decision of Immigration Judge

(“IJ”) Robert D. Weisel, which denied her application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”). In re Guo Ying Chen, No. A079 630 182 (B.I.A.

Apr. 13, 2010), aff’g No. A079 630 182 (Immig. Ct. N.Y. City Jan.

7, 2009). We assume the parties’ familiarity with the underlying

facts and procedural history in this case. 

Under the circumstances of this case, we review the decision

of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales,

417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of

review are well-established. See Salimatou Bah v. Mukasey, 529

F.3d 99, 110 (2d Cir. 2008); Manzur v. U.S. Dep’t of Homeland

Sec., 494 F.3d 281, 289 (2d Cir. 2007). 

In denying Chen’s asylum application on the basis that she

had not proven that she suffered past persecution, the BIA relied

on three alternative rationales, finding that Chen failed to:

(1) establish that her symptoms were caused by the intra-uterine
-3-

device (“IUD”) she was required to use; (2) demonstrate

aggravating circumstances sufficient to establish persecution; and

(3) establish a nexus between any aggravating circumstances she

suffered and a protected ground. Because each of these decisions

was tainted by error, remand is required for the BIA to reconsider

whether Chen is entitled to relief. 

First, the BIA erred by stating that the IJ had found “that

[Chen] did not establish that her dizziness and other symptoms

were caused by the IUD[.]” As Chen correctly points out, the IJ

actually found that “[Chen] did establish that the [IUD] may have

caused these symptoms” (emphasis added). Because the BIA misread

the IJ’s factual findings, remand is required for it to reassess

Chen’s asylum claim if there is no independent basis for affirming

the IJ’s decision. Xiao Kui Lin v. Mukasey, 553 F.3d 217, 223-24

(2d Cir. 2009). 

The BIA further found that Chen was not entitled to asylum

because: (1) the harm she suffered could not be considered

aggravating circumstances to establish persecution; and (2) she

failed to establish a nexus between any aggravating circumstances

she suffered and a protected ground. In light of Mei Fun Wong v.

Holder, --- F.3d ----, No. 08-5328-ag, 2011 WL 293762 (2d Cir.

Feb. 1, 2011), these findings are insufficient and remand is

required. 
-4-

As an initial matter, Chen argues that she is entitled to

asylum because the required insertion of an IUD is, per se, the

equivalent of forced sterilization. We have previously rejected

this argument. See Mei Fun Wong, 2011 WL 293762, at *6 (“[T]he

BIA’s conclusion that involuntary IUD insertion did not constitute

involuntary sterilization was reasonable. . . .”); Xia Fan Huang

v. Holder, 591 F.3d 124, 128-30 (2d Cir. 2010). 

Chen’s next argument, however, that the BIA erred in finding

that she did not establish aggravating circumstances or a nexus

to a protected ground, warrants remand to the BIA in light of Mei

Fun Wong. Chen argues that she suffered from aggravating

circumstances in that family planning officials destroyed property

in her home, detained her mother for three days, and did not use

anesthesia during the IUD insertion. Because Chen, like the

petitioner in Mei Fun Wong, alleged that a cumulative series of

harms constituted aggravating circumstances, “we cannot review the

Board’s decision that [her mistreatment did not constitute

aggravating circumstances] without a clearer understanding of how

[the BIA] weighed the [IUD insertion] itself consistent with its

obligation to consider all alleged harms cumulatively.” Mei Fun

Wong, 2011 WL 293762, at *11.

Likewise, remand is required for the BIA to determine whether

Chen can establish a nexus between the harm she suffered and a
-5-

protected ground. Although the BIA found that Chen “d[id] not

contend that the IUD was inserted in response to any resistance

to China’s family planning policy,” Chen argued before the BIA

that family planning officials destroyed property in her home and

detained her mother. As we have now directed the BIA to “clarify

whether aggravating circumstances designed to compel submission

– e.g., detention, threats, fines, use of force, etc., – can not

only elevate a routine practice to the level of persecution, but

can also demonstrate the requisite nexus between that persecution

and an applicant’s opposition to the state’s population control

policy[,]” Mei Fun Wong, 2011 WL 293762, at *14, remand is

required for the BIA to re-evaluate its adverse nexus

determination in this case as well.

For the foregoing reasons, the petition for review is

GRANTED, the order of removal is VACATED, and the case is REMANDED

to the BIA for proceedings consistent with this decision. Any

pending request for oral argument in this petition is DENIED in

accordance with Federal Rule of Appellate Procedure 34(a)(2), and

Second Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk