Pursuant to Federal Rule of Appellate Procedure * 43(c)(2), Attorney General Eric H. Holder, Jr. is automatically substituted for Michael B. Mukasey. 07-5791-ag Lin v. Holder

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 August Term, 2008 7 8 (Argued: May 21, 2009 Decided: October 14, 2009) 9 10 11 Docket No. 07-5791-ag 12 13 14 - - - - - - - - - - - - - - - - - - - -X 15 16 17 YAN YAN LIN, 18 Petitioner, 19 20 -v.- 07-5791-ag 21 22 ERIC H. HOLDER, JR., DEPARTMENT OF 23 HOMELAND SECURITY, 24 Respondents. * 25 26 - - - - - - - - - - - - - - - - - - - -X 27 28 Before: JACOBS, Chief Judge, KEARSE, and STRAUB, 29 30 Circuit Judges

. 31 32 33 Yan Yan Lin, a native and citizen of China, petitions2 1 for review of a

### fi nalor derofth e B oar d o f I mmi gra tio n 2 

### App eal s a ffi rmi ng thede cis ionofanImmig rat ionJu dgewh ich 3 

### den iedhe r appl ica tio n f or asy lum , w ithhol din g o f r emoval , 4 

### andwi thh old ingun derth e C onvent ionAgain st Tor tur e. Th e 5 

### pet iti on wasde nie d p rimari ly on thegr oun d t hatLi n 6 

### “as sis tedorpa rti cip ate d” in thepe rse cut ionofot her s b y 7 

### servin g a s anu rseinth e mate rni ty war d o f aho spi talwh ich 8 

### per formedfo rce d abor tio ns andth at shewa s t her efo re 9 

### sub jec t t o t he sta tut ory“p ers ecu torba r” of theImmig rat ion 10 

### andNa tio nal ityAc t, 8 U.S.C. §§ 1101(a)(42), 11 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) 

### . Thepe tit ionisgr ant ed 12 

### in par t, den iedinpa rt, an d r ema nde d. 13 STUART ALTMAN, Law Offices of 14 Stuart Altman, New York, New 15 York, for Petitioner. 16 17 STACY STIFFEL PADDACK, (Anthony 18 Norwood, Sherrie Waldrup, on the 19 brief), Office of Immigration 20 Litigation, for Gregory G. 21 Katsas, Assistant Attorney 22 General, United States 23 Department of Justice, Civil 24 Division, Washington, D.C., for 25 Respondent. 26 27 DENNIS JACOBS, Chief Judge: 28 29 Petitioner Yan Yan Lin (“Lin” or “Petitioner”), a3 1 native and citizen of the People’s Republic of China, seeks 2 review of the December 17, 2007 order of the Board of 3 Immigration Appeals (“BIA”) affirming the January 24, 2006 4 decision of Immigration Judge (“IJ”) 

### Viv ien ne E. Gor don

5 

### Uru akp a denying her application for asylum, withholding of 6 removal, and relief under the Convention Against Torture 7 (“CAT”). In re Yan Yan Lin, No. A95 709 889 (B.I.A. Dec. 8 17, 2007), aff’g No. A95 709 889 (Immig. Ct. N.Y. City, Jan. 9 24, 2006). Lin was a maternity nurse employed by a state 10 general hospital that (sometimes) performed forced abortions 11 pursuant to China’s family planning policy. The IJ denied 12 relief (in part) on the ground that Lin was therefore a 13 “persecutor” and statutorily ineligible for asylum or 14 withholding of removal under the Immigration and Nationality 15 Act (“INA”). See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 16 1231(b)(3)(B)(i). The IJ also denied Lin’s request for CAT 17 protection because Lin failed to demonstrate that it was 18 “more likely than not” that she would be tortured if removed 19 to China. See 8 C.F.R. § 208.16(c)(2). The BIA affirmed 20 the IJ’s decision and dismissed the appeal. This petition4 1 for review followed. 2 The main issue on appeal is whether Lin’s activity as a 3 nurse in China amounted to “assistance or participation” in 4 persecution which would render her ineligible for asylum or 5 withholding of removal under the INA’s “persecutor bar.” We 6 conclude that it did not. 7 I 8 The facts bearing on this appeal are based on Lin’s 9 testimony, which was found to be credible. 10 From 2002 to 2005, Lin was employed in the obstetrics 11 and gynecology department of the state-run “People’s Number 12 One Hospital” in China. Her duties included, among other 13 things, tending to pregnant women, assisting in the 14 performance of ultrasound and other prenatal examinations, 15 participating in live-birth deliveries, caring for newborns, 16 and providing recovery care to women who had undergone 17 forced abortions. Lin did not participate in the abortion 18 procedure itself, but the examinations in which Lin assisted 19 were sometimes used to determine a fetus’s position so that 20 a forced abortion could be performed without threatening the5 1 life of the mother. 2 In July 2004, a woman Lin knew arrived at the hospital 3 escorted by family planning authorities. The woman was five 4 months pregnant and was scheduled to undergo a forced 5 abortion in accordance with China’s family planning policy. 6 A pre-abortion examination at which Lin assisted revealed a 7 complication that would delay the procedure for two days. 8 During the delay, Lin found the woman crying in her room; 9 the woman stated that she wished to bear the child, and 10 wanted Lin’s help avoiding the abortion. At around one 11 o’clock in the morning, after Lin’s shift ended and the 12 person guarding the woman’s room had fallen asleep, Lin 13 opened a side door of the hospital and the woman escaped by 14 motorcycle with her husband, whom Lin had alerted to come to 15 the hospital. Questioned the next day, Lin denied any 16 knowledge of the escape. 17 Seven months later, in February 2005, a doctor and 18 several family planning officials came to Lin’s house to 19 question her again about the incident. (They apparently 20 learned of her involvement after interrogating the woman who6 1 had escaped.) Lin was not home at the time, but was warned 2 of the visit and fled to her aunt’s house, where she learned 3 that she had been dismissed from the hospital and that 4 officials continued to search for her. So she decided to 5 leave China. 6 Lin arrived in Los Angeles on March 27, 2005 without 7 valid entry documents, and applied for admission. Lin was 8 taken into custody and served with a notice to appear, 9 charging her with being subject to removal for her failure 10 to possess valid travel documents under section 11 212(a)(7)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I). 12 Thereafter, Lin was released from custody, paroled into the 13 United States, and notified of the date for her removal 14 hearings. 15 On June 23, 2005, Lin appeared with counsel before the 16 IJ and admitted that she lacked proper documentation, but 17 filed an application for asylum, withholding of removal, and 18 withholding under the Convention Against Torture. Lin 19 admitted that she had never been arrested, detained, or 20 physically mistreated in China, but alleged fear of7 1 persecution for her resistance to China’s family planning 2 policy. 3 Following a January 24, 2006 hearing on the merits, the 4 IJ found that Lin had “for the most part been a credible 5 witness.” Relying on Lin’s testimony, the IJ found that she 6 had “participated in the persecution of other individuals on 7 account of their political opinion” and concluded that she 8 was therefore “statutorily barred from the relief of asylum 9 and [w]ithholding of [r]emoval” under the INA provisions 10 barring relief for individuals who themselves engaged in the 11 persecution of others. See 8 U.S.C. §§ 1101(a)(42), 12 1158(b)(2)(A)(i), 1231(b)(3)(B)(i). The finding was based 13 on the grounds that: (i) Lin knew that several of the women 14 she assisted in examining were scheduled to undergo forced 15 abortions (because they were escorted to the hospital by 16 uniformed cadre and guarded during their stay), (ii) Lin’s 17 assistance to doctors in the examinations provided a 18 “necessary step for the involuntary abortion,” and (iii) 19 Lin’s actions “further[ed] the persecution of these women.” 20 The IJ also determined that Lin “failed to demonstrate that8 1 it [was] more likely than not that she would be tortured 2 . . . [if] removed to China.” Accordingly, the IJ denied 3 her applications for asylum and withholding of removal, and 4 her request for CAT protection, and ordered her removed from 5 the United States to China. 6 The BIA dismissed Lin’s appeal on December 17, 2007, 7 concluding that Lin failed to show by a preponderance of the 8 evidence “that she did not assist doctors in carrying out 9 forced abortions,” and could not demonstrate that her 10 actions were only “tangential” to the procedure. Instead, 11 the BIA concluded that Lin’s conduct “as a whole” was 12 “active and contributed directly to the persecution of 13 others.” The BIA acknowledged that Lin helped one woman 14 escape a forced abortion, but decided that this “redemptive 15 behavior . . . [did] not serve as a basis for relieving the 16 respondent of the consequences of having previously assisted 17 in persecution.” As to the CAT claim, the BIA agreed with 18 the IJ that Lin failed to demonstrate eligibility for CAT 19 protection because she conceded that she had never been 20 arrested, detained, or physically mistreated in China, and9 1 she presented no other evidence to indicate that if she were 2 returned to China, she would be tortured. Accordingly, the 3 BIA dismissed Lin’s appeal in its entirety. 4 II 5 We review the BIA’s factual findings under the 6 “substantial evidence” standard, and uphold them “if they 7 are supported by ‘reasonable, substantial and probative 8 evidence in the record.’” Weng v. Holder, 562 F.3d 510, 513 9 (2d Cir. 2009) (“Weng”) (quoting Lin Zhong v. U.S. Dep’t of 10 Justice, 480 F.3d 104, 116 (2d Cir. 2007)). The BIA’s 11 application of law to fact is reviewed de novo. Id. 12 Where “the BIA did not expressly ‘adopt’ the IJ's 13 decision, but its brief opinion closely tracks the IJ’s 14 reasoning,” we consider in the interest of completeness both 15 the IJ and BIA opinions, especially where doing so does not 16 affect the outcome. Wangchuck v. Dep’t of Homeland Sec., 17 448 F.3d 524, 528 (2d Cir. 2006). 18 III 19 The Secretary of Homeland Security or the Attorney 20 General may grant asylum to an alien determined to be a10 1 “refugee” within the meaning of the INA. 8 U.S.C. 2 § 1158(b)(1)(A). The INA defines a “refugee” as a person 3 “who is unable or unwilling to return to . . . [a] country 4 because of persecution or a well-founded fear of persecution 5 on account of race, religion, nationality, membership in a 6 particular social group, or political opinion.” 8 U.S.C. 7 § 1101(a)(42). Excluded from that definition is “any person 8 who ordered, incited, assisted, or otherwise participated in 9 the persecution of any person on account of race, religion, 10 nationality, membership in a particular social group, or 11 political opinion.” Id.; see also 8 U.S.C. 12 § 1158(b)(2)(A)(i). This exclusion, the so-called 13 “persecutor bar,” prevents those who have persecuted others 14 (or assisted or participated in the persecution of others) 15 from gaining refugee status and seeking asylum in the United 16 States. See 8 U.S.C. § 1231(b)(3)(B)(i); Negusie v. Holder, 17 129 S. Ct. 1159, 1162 (2009); Weng, 562 F.3d at 513-14. The 18 bar also applies to those seeking withholding of removal, 19 see 8 U.S.C. § 1231(b)(3)(B)(i), but “[i]t does not 20 disqualify an alien from receiving a temporary deferral of11 1 removal under the Convention Against Torture.” Negusie, 129 2 S. Ct. at 1162; see also 8 C.F.R. § 208.17(a). 3 In this Circuit, four relevant factors determine 4 whether the persecutor bar applies to a particular alien: 5 (1) whether the alien was “involved in” acts of persecution 6 by ordering, inciting, or actively carrying out the acts; 7 (2) whether there is a nexus between the persecution and the 8 victim’s race, religion, nationality, membership in a 9 particular social group, or political opinion; (3) whether 10 the alien’s actions, if not outright “involvement” under the 11 first factor, amount to assistance or participation in 12 persecution; and (4) whether the alien had sufficient 13 knowledge that her actions might assist in persecution to 14 make those actions culpable. See Weng, 562 F.3d at 514; 15 Balachova v. Mukasey, 547 F.3d 374, 384-85 (2d Cir. 2008). 16 For the persecutor bar to apply, an alien’s conduct must be 17 persecution under either the first or third factors, and 18 must also satisfy the second and fourth factors. In short, 19 Lin is a persecutor if she knowingly did or assisted acts 20 that would be persecution on account of the victim’s“[A] person who has been forced to abort a pregnancy 1 or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure . . . shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42); see also Weng, 562 F.3d at 514. 12 1 victim’s race, religion, nationality, membership in a 2 particular social group, or political opinion. 3 It is settled law that forced abortion is persecution 4 on account of political opinion. See 8 U.S.C. § 1101(a)(42) 5 (see text in the margin ). And knowledge is not an issue in 1 6 this case. The critical question, then, is whether Lin did 7 or assisted acts of persecution. It is undisputed that Lin 8 did not order, incite, or actively carry out the forced 9 abortions; so Lin’s conduct does not amount to “involvement” 10 under the first factor. See Balachova, 547 F.3d at 384. 11 Our focus therefore is on whether Lin “assisted or 12 participated” in persecution under the third factor. 13 “In determining whether . . . conduct amounts to 14 ‘assistance’ in persecution, we look to [the alien’s]13 1 behavior as a whole.” Weng, 562 F.3d at 514. “Where the 2 [alien’s] conduct [is] active and [has] direct consequences 3 for the victims . . . it [is] ‘assistance in persecution.’ 4 Where the conduct [is] tangential to the acts of oppression 5 and passive in nature, however, we decline[] to hold that it 6 amount[s] to such assistance.” Zhang Jian Xie v. INS, 434 7 F.3d 136, 143 (2d Cir. 2006) (“Xie”). 8 Two cases, Xie and Weng, discuss forced abortion 9 practices in this context and illustrate conduct that 10 amounts to persecution and conduct that does not. Weng, 562 11 F.3d at 514-15; Xie, 434 F.3d at 143. Lin’s case falls in a 12 zone between the events and behaviors described in those 13 decisions. 14 In Xie, the petitioner worked as a driver for the 15 county health department in China. Among other duties, he 16 occasionally “transported pregnant women to hospitals in the 17 locked back of a van, against their will, so that county 18 officials could perform forced abortions on them pursuant to 19 China’s mandatory family planning policies.” 434 F.3d at 20 138. We agreed with the BIA’s conclusion that the14 1 petitioner was subject to the persecutor bar because his 2 actions “contributed directly” to the persecution: “[b]y 3 driving the van in which the women were locked, Xie ensured 4 that they were delivered to the place of their persecution. 5 . . . [He] played an active and direct, if arguably minor, 6 role.” Id. at 143. We rejected Xie’s argument that his 7 actions were involuntary, and therefore excusable, in the 8 sense that they were required by his job because “nothing in 9 the record indicate[d] that Xie did not have the ability to 10 quit his job as a driver at any time in order to avoid the 11 persecution of women.” Id. We also rejected Xie’s argument 12 that his petition should have been saved by a redemptive act 13 (he once allowed an unguarded pregnant woman he was 14 transporting to go free after she pleaded with him). We 15 explained that “redemptive behavior is [not] necessarily 16 irrelevant to the inquiry as to whether an applicant has 17 assisted in persecution,” but “the BIA was not in error” 18 when it determined that Xie was ineligible for asylum. 19 Id. at 144. 20 In Weng, the petitioner worked as a nurse’s assistant15 1 at a public hospital in China. 562 F.3d at 512. She 2 performed administrative tasks such as registration of 3 patients and maintenance of files, but she also provided 4 post-surgical care, including the taking of temperature and 5 the recording of vital signs. Id. at 512, 515. On one 6 occasion, Weng “guarded” women scheduled for forced 7 abortions by sitting outside the locked door of her regular 8 shift room while the women waited inside. Id. at 515. On 9 that evening, Weng helped one of the women to escape the 10 hospital before the procedure. Id. at 512-13, 515. 11 In deciding whether Weng had provided “assistance” in 12 persecution, we observed that the Supreme Court, deciding 13 the same question, had “easily distinguished between the 14 conduct of a concentration camp barber who did not assist 15 persecution and that of armed guards who did.” Id. at 515 16 (citing Fedorenko v. United States, 449 U.S. 490, 512 n.34 17 (1981)). Nevertheless, the case law “offered scant guidance 18 on how to classify less overtly culpable conduct.” Id. 19 We decided in Weng that the “post-surgical care did not 20 contribute to, or facilitate, the victims’ forced abortions16 1 in any ‘direct’ or ‘active’ way [because] [Weng’s] conduct 2 neither caused the abortions, nor made it easier or more 3 likely that they would occur[;] [the] actions were, at most, 4 ‘tangential,’ ‘passive accommodation’ of the conduct of 5 others” and did not trigger the persecutor bar. Id. As to 6 the single incident where Weng “guarded” forced abortion 7 patients, the Court observed that “guarding patients 8 awaiting forced abortions comes closer to active assistance 9 than does post-operative monitoring of vital signs,” but 10 that Weng “was unarmed, . . . performed actual guard duties 11 for only approximately ten minutes before accompanying one 12 of the patients to the restroom, . . . helped one of the 13 patients to escape, and . . . lost her job as a result.” 14 Id. Under those circumstances, the Court concluded that 15 “Weng’s conduct, considered in its entirety, was tangential, 16 and not sufficiently direct, active, or integral to the 17 administering of forced abortions as to amount to assistance 18 in persecution.” Id. 19 Lin’s case is closer to Weng than to Xie. Lin did not 20 participate directly in forced abortions, and the following17 1 circumstances are decisive: 2 1. Lin assisted examinations in the maternity ward 3 that were used to detect the position and health of the 4 fetus. The kinds of examinations in which Lin assisted 5 (e.g., ultrasounds) are given to all pregnant women, whether 6 the pregnancy is scheduled to result in a live birth, a 7 voluntary abortion, or a forced abortion. The exams are 8 more akin to routine patient care than a protocol specific 9 to forced abortions. 10 2. As in Weng, the examinations in which Lin assisted 11 “did not contribute to, or facilitate, the victims’ forced 12 abortions in any ‘direct’ or ‘active’ way” because they did 13 not “cause[] the abortions, nor [did they make] it . . . 14 more likely that they would occur.” Id. Lin’s actions were 15 therefore “tangential, and not sufficiently direct, active, 16 or integral to the administering of forced abortions as to 17 amount to assistance in persecution.” Id. 18 Our conclusion is further bolstered by Lin’s redemptive 19 act. Although the act itself is not dispositive, we must 20 view Lin’s conduct “as a whole,” id., and the act suggests18 1 that she did not actively “assist” or participate in 2 persecution. We conclude as a matter of law that Lin’s 3 conduct does not subject her to the persecutor bar. We 4 grant Lin’s petition with respect to the BIA’s denial of her 5 applications for asylum and withholding of removal, and 6 remand for the BIA to determine, in the first instance, if 7 Lin is eligible for such relief. 8 (A) The CAT Determination 9 In order to establish eligibility for CAT withholding, 10 the petitioner must demonstrate that she will “more likely 11 than not” be tortured if removed to her home country. See 8 12 C.F.R. § 208.16(c)(2). Here, the IJ and the BIA concluded 13 that Lin failed to sustain her burden of demonstrating that 14 it was “more likely than not” that she would be tortured in 15 China because she affirmatively testified that she had never 16 been arrested, detained, or physically mistreated in her 17 home country. We see no error in this conclusion and deny 18 Lin’s petition for review on this ground. 19 CONCLUSION 20 For the foregoing reasons, Lin’s petition for review is19 1 granted as to her applications for asylum and withholding of 2 removal, and denied as to withholding of removal under CAT; 3 the petition is remanded to the BIA for further proceedings 4 consistent with this opinion.