Jiang v. Gonzales

* Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Alberto Gonzales is substituted
for his predecessor, Attorney General John Ashcroft, as
respondent.
** The Honorable David N. Hurd, United States District
Judge for the Northern District of New York, sitting by
designation.
03-40487-ag
Jiang v. Gonzales
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2004 4
5
6
(Submitted: July 12, 2005 Decided: August 31, 2007) 7
8
Docket No. 03-40487-ag 9
10
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12
TAO JIANG, 13
14
Petitioner, 15
16
-v.- 17
18
ALBERTO GONZALES, Attorney General of 19
the United States,*
20
21
Respondent. 22
23
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25
Before: JACOBS, Chief Judge, PARKER, Circuit 26
Judge, and HURD, District Judge.**
27
28
Petition for review of a final decision and order of 29
the Board of Immigration Appeals reversing, on an appeal by 30
the Department of Homeland Security, the IJ’s grant of 31

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2
humanitarian asylum. 1
The petition is denied. 2
Alexander K. Yu, New York, NY, 3
for Petitioner. 4
5
Gary L. Hayward, Assistant 6
United States Attorney, for 7
Matthew G. Whitaker, United 8
States Attorney for the District 9
of Iowa, Des Moines, IA, for 10
Respondent. 11
12
DENNIS JACOBS, Chief Judge: 13
14
Tao Jiang, a native and citizen of China, petitions for 15
review of an August 7, 2003 order of the Board of 16
Immigration Appeals (“BIA”), which sustained the Department 17
of Homeland Security’s (“DHS”) appeal from Immigration Judge 18
(“IJ”) Anthony J. Randall’s November 9, 2001 grant of 19
humanitarian asylum. Jiang cites the forced sterilization 20
of his mother, occasioned by Jiang’s own birth, and economic 21
hardship suffered by Jiang and his family when his mother 22
failed to fully recover from the procedure. Because Jiang 23
relies only on his mother’s past persecution by reason of 24
political opinion, and has shown no valid nexus between the 25
economic hardship he suffered and any protected ground of 26
his own, we agree with the BIA that he suffered no past 27
persecution. The petition is denied. 28

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3
1
BACKGROUND 2
Petitioner Tao Jiang, whom the IJ found credible, has 3
given the following account. 4
Jiang was the second child born to a family in Fujian 5
Province, China. His birth, on February 28, 1980, violated 6
population control laws. Three months later, government 7
officials forced Jiang’s mother to undergo sterilization. 8
The sterilization procedure had lingering health effects. 9
Although his mother continued to work, she was less 10
productive in her farm work and housework, and often sick 11
with symptoms that included high blood pressure and stomach 12
pain. Jiang’s father therefore often stayed away from work 13
to care for the children. These conditions caused economic 14
hardship for the family. Jiang was forced to work during 15
his school years, was often absent, lagged behind, and was 16
unable to attend middle school after completing elementary 17
school. After his father died in 1996, leaving the family 18
unable to support itself, Jiang left China to escape 19
privation. He testified that his mother also wished to 20
leave China, but was unable to do so. 21
Jiang’s original application sought asylum on 22

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1 While asylum must be sought within one year of
arrival, see 8 U.S.C. § 1158(a)(2)(B), Jiang did not apply
until several years had passed. The IJ concluded that
Jiang’s reaching 21 years of age in 2001 constituted a
change in circumstances under 8 U.S.C. § 1158(a)(2)(D), and
that Jiang’s application could therefore be considered
notwithstanding its untimeliness. The DHS did not appeal
this determination before the BIA, and we do not address it.
4
religious grounds, without mention of his mother’s 1
sterilization; but the application was amended to assert a 2
claim that he was seeking to escape persecution on the 3
account of his parents’ violation of population control 4
laws. 5
After an evidentiary hearing, the IJ found Jiang’s 6
testimony credible and granted humanitarian asylum in an 7
oral opinion on November 9, 2001.1 Although Jiang had 8
entered the United States for purely economic reasons, the 9
IJ decided that (whether or not there was a likelihood of 10
future persecution) the economic hardship suffered by Jiang 11
and his family in the wake of his mother’s sterilization was 12
sufficiently harsh past persecution to entitle Jiang to 13
humanitarian asylum under In re Chen, 20 I. & N. Dec. 16 14
(B.I.A. 1989). The IJ concluded that Jiang had not himself 15
been persecuted on account of any political opinion of his 16
mother’s that was imputed to him; rather, because Jiang’s 17

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5
mother had been persecuted for political opinion when she 1
was forced to undergo sterilization, Jiang was “affected by 2
the mother’s political activities” and was therefore 3
persecuted himself when the procedure rendered her unable to 4
adequately support Jiang. 5
DHS appealed to the BIA. On August 7, 2003, the BIA 6
sustained the appeal, deferring to the IJ’s favorable 7
credibility finding but holding as a matter of law that 8
Jiang was not entitled to humanitarian asylum because he had 9
suffered no past persecution. The BIA reasoned that Jiang 10
was not entitled to rely on his mother’s sterilization 11
operation itself because he “has not been subjected to 12
forced sterilization nor has he been threatened with such 13
action” and he “personally . . . suffered no harm by the 14
government.” The BIA rejected the idea that the post- 15
sterilization economic hardship constituted persecution, 16
because “there is no evidence that the government 17
deliberately imposed substantial economic disadvantage upon 18
the applicant and his family, especially on account of a 19
protected ground.” 20
This petition for review followed. 21
22

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6
DISCUSSION 1
I 2
Jiang argues that his experiences in China constituted 3
past persecution because he and his family suffered economic 4
hardship as the direct result of his mother’s forced 5
sterilization, an act which itself is clearly deemed 6
persecution of his mother by reason of political opinion 7
under 8 U.S.C. § 1101(a)(42). 8
When the BIA issues an opinion rejecting the IJ’s 9
decision, the BIA’s opinion “becomes the basis for judicial 10
review of the decision of which the alien is complaining.” 11
Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005) 12
(citation omitted). We review questions of law de novo, 13
including the application of law to undisputed facts. Uwais 14
v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir. 2007). 15
We do not owe Chevron deference to statutory interpretations 16
set forth in a non-precedential BIA decision by a single 17
board member, such as the BIA decision here. Rotimi v. 18
Gonzales, 473 F.3d 55, 57 (2d Cir. 2007) (citing Chevron 19
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 20
837 (1984)). 21
The agency’s factual findings “are conclusive unless 22

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7
any reasonable adjudicator would be compelled to conclude to 1
the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review such 2
findings under the substantial evidence standard, which 3
requires that they be supported by “reasonable, substantial 4
and probative evidence in the record when considered as a 5
whole.” Iouri v. Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007) 6
(quoting Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 7
2003)) (internal quotation marks omitted). 8
To be eligible for asylum, a petitioner must show that 9
he meets the definition of “refugee” in 8 U.S.C. § 10
1101(a)(42), either because he has suffered past persecution 11
on account of “race, religion, nationality, membership in a 12
particular social group, or political opinion,” or that he 13
has a well-founded fear that, if deported, he will suffer 14
persecution on account of one of those protected grounds. 15
See Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir. 2006) 16
(citing Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir. 17
2003)). In the analysis of past persecution, 18
a person who has been forced to abort a pregnancy 19
or to undergo involuntary sterilization, or who 20
has been persecuted for failure or refusal to 21
undergo such a procedure or for other resistance 22
to a coercive population control program, shall be 23
deemed to have been persecuted on account of 24
political opinion. 25
26

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8
8 U.S.C. § 1101(a)(42). A showing of past persecution 1
raises a rebuttable presumption of a well-founded fear of 2
future persecution. Karaj, 462 F.3d at 116. But even if 3
there is no probability of future persecution, an applicant 4
may be granted asylum on humanitarian grounds if “[t]he 5
applicant has demonstrated compelling reasons for being 6
unwilling or unable to return to the country arising out of 7
the severity of the past persecution.” 8 C.F.R. § 8
208.13(b)(1)(iii), (A). See Li Yong Cao v. U.S. Dep’t of 9
Justice, 421 F.3d 149, 156 (2d Cir. 2005). 10
11
12
II 13
The BIA held as a matter of law that because Jiang only 14
alleged that he suffered economic hardship as a result of 15
his mother’s forced sterilization, he failed to show past 16
persecution on a protected ground. 17
In Shi Liang Lin v. United States Department of 18
Homeland Security, we held that under the plain language of 19
8 U.S.C. § 1101(a)(42), a claim of persecution based solely 20
on a forced abortion or sterilization procedure without 21
evidence of any further harm can only be brought by the 22

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9
individual who has undergone the procedure. --- F.3d ---, 1
No. 02-4611-ag, 2007 WL 2032066, at *9-10 (2d Cir. July 16, 2
2007) (en banc). So to the extent Jiang’s claim is based on 3
his mother’s sterilization itself, we are bound by Shi Liang 4
Lin, and we affirm the BIA’s conclusion that he suffered no 5
past persecution on this basis. 6
But Jiang goes further. He asserts that, even if the 7
procedure itself may not have inflicted persecution on him, 8
his mother’s subsequent illness and its economic impact on 9
the family did. As a general principle, an asylum applicant 10
cannot claim past persecution based solely on harm that was 11
inflicted on a family member on account of that family 12
member’s political opinion or other protected 13
characteristic. See Melgar de Torres v. Reno, 191 F.3d 307, 14
313 n.2 (2d Cir. 1999). That is because an applicant must 15
rely upon harm the applicant has suffered individually. 16
“[T]he statutory scheme unambiguously dictates that 17
applicants can become candidates for asylum relief only 18
based on persecution that they themselves have suffered or 19
must suffer.” Shi Liang Lin, 2007 WL 2032066, at *8. At 20
the same time, if an applicant’s family member was harmed as 21
a means of targeting the applicant on some protected ground, 22

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10
that harm may constitute persecution of the applicant. See 1
Ahmadshah v. Ashcroft, 396 F.3d 917, 920 (8th Cir. 2005) 2
(“Acts of violence against family members may demonstrate 3
persecution if they show a pattern of persecution tied to 4
the petitioner.”). Moreover, BIA precedent in the context 5
of humanitarian asylum (the relief originally granted here) 6
reflects that harm to family members is an important factor 7
in evaluating the severity of the persecution of applicants 8
who have suffered direct harm themselves. See, e.g., In re 9
Chen, 20 I. & N. Dec. 16 (B.I.A. 1989). Also, we have held 10
the agency must consider the totality of the circumstances 11
in each case to determine whether harm suffered by family 12
members in combination with other factors may constitute 13
past persecution of the applicant, even if government 14
authorities neither directly harmed the applicant nor harmed 15
the family member in order to target the applicant. See 16
Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006). 17
This would presumably only be so where, as in Jorge-Tzoc, 18
the applicant not only shares (or is perceived to share) the 19
characteristic that motivated persecutors to harm the family 20
member, but was also within the zone of risk when the family 21
member was harmed, and suffered some continuing hardship 22

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2 While he was a small child, the petitioner in Jorge-
Tzoc (a Guatemalan of Mayan descent) survived a massacre
that was part of a “pervasive campaign carried out by the
[Guatemalan] army against Mayans in the area” around the
petitioner’s village. 435 F.3d at 150. His sister and her
family were killed by the army in a neighboring village, and
several other relatives and neighbors were killed in the
petitioner’s own village. Id. at 147-48. He did not
witness the killings, but saw the soldiers and saw his
cousin’s bullet-riddled corpse on the ground in the
massacre’s aftermath; his family lost land and property when
the massacre forced them to relocate, and they struggled to
survive. Id. at 150. This Court remanded after rejecting
the notion that in such circumstances, the lack of any
“direct” harm to the petitioner necessarily supported the
agency’s conclusion that he had suffered no past
persecution; the agency was required to evaluate the
cumulative impact of the petitioner’s experiences, taking
into account the petitioner’s sensitive age at the time.
Id.
11
after the incident.2 Under Jorge-Tzoc, the question whether 1
the applicant experienced harm “directly” is not in itself 2
dispositive; the question is whether the applicant’s 3
cumulative experiences were sufficiently severe as to rise 4
to the level of persecution. 5
Mindful of these principles, we conclude that the BIA 6
did not err. Jiang’s mother’s illness--caused by the 7
government--and Jiang’s resulting hardship did not 8
constitute past persecution of him on account of a protected 9
ground. Even assuming that the privations Jiang suffered 10
rose to the level of persecution as a matter of severity, 11

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3 Jiang at one point testified vaguely that he lived
with his grandparents because he was afraid that the village
cadre would target his parents; and he stated without
elaboration that at some undefined time in the past, “I saw
the village government come to our home to arrest people.”
12
the record evidence demonstrates no nexus to a protected 1
ground in Jiang’s individual case. Unlike in Jorge-Tzoc, 2
the persecution Jiang’s mother suffered was not inflicted on 3
account of some characteristic Jiang shared with his mother. 4
As we reasoned in Shi Liang Lin, § 1101(a)(42) provides that 5
those who have been subject to forced sterilization are 6
“deemed” to have suffered persecution by reason of political 7
opinion; but this constructive political opinion--whatever 8
its exact contours--cannot be presumed to have been imputed 9
to the family of the individual who undergoes the procedure; 10
there must be some evidence that it was so imputed. See 11
2007 WL 2032066, at *8. Evidence of imputed political 12
opinion may be direct or circumstantial, and need only show 13
that “those who harmed [Jiang] were in part motivated by an 14
assumption that his political views were antithetical to 15
those of the Government.” In re S-P-, 21 I. & N. Dec. 486, 16
492, 496 (B.I.A. 1996). The government appears to have 17
taken no further action against the family after persecuting 18
Jiang’s mother.3 And Jiang has adduced no evidence that 19

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The IJ immediately asked a clarifying question: “Did
anything bad happen to you when you were in China?” Jiang
responded: “No.” This equivocal mention of the village
cadre was not the basis for the IJ’s original grant of
humanitarian asylum which Jiang seeks reinstate; the IJ’s
view was that the family’s being placed in a “precarious
economic position that constitute[d] persecution” was “the
only winning theory” upon which the record evidence could
justify asylum.
4 There is certainly no evidence that Jiang--a three
month old baby when his mother was forcibly sterilized--
engaged in any “other resistance” against the government’s
coercive population control policy; such resistance supplies
a nexus to political opinion under 8 U.S.C. § 1101(a)(42).
See Shi Liang Lin, 2007 WL 2032066, at *10.
13
government actors imputed to him the political opinion his 1
mother is deemed to have had by virtue of the forced 2
sterilization.4 We therefore agree with the BIA that Jiang 3
cannot claim a valid nexus to a protected ground even if the 4
hardship he suffered was sufficiently severe to constitute 5
persecution. 6
Nothing in In re Chen is inconsistent with our 7
conclusion. In In re Chen, the petitioner’s father--a 8
Christian minister--was dragged through the streets dozens 9
of times while in captivity and on one occasion was burned 10
badly when he was thrown into a bonfire of burning bibles. 11
20 I. & N. Dec. at 19-20. The BIA concluded that these 12
traumatic events aggravated the emotional impact of the harm 13

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14
Chen himself suffered--repeated physical abuse because of 1
his family’s religion while he was in Chinese government 2
custody as a boy. The circumstances constituted past 3
persecution so severe as to justify a discretionary grant of 4
asylum for humanitarian reasons irrespective of the 5
likelihood of future persecution. Id. at 21 (“Given what 6
happened to his father, and given the manner in which he 7
spent much of his boyhood, his fear of repatriation is 8
understandable.”). Jiang’s case is not analogous: (1) Jiang 9
suffered no abuse at the hands of government officials and 10
(2) there is no indication that the government treated Jiang 11
as if he shared the characteristic that triggered his 12
parent’s persecution. 13
The persecution of an individual such as Jiang’s mother 14
may stir anguish among all of her friends, relatives, and 15
associates, and may bring economic loss for the family; but 16
nothing in our precedent or in the BIA’s suggests that these 17
consequences can constitute persecution giving rise to 18
refugee status for any of those people unless they share--or 19
are imputed to share--the characteristic that motivated the 20
persecution. 21
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* * * 1
2
For the foregoing reasons, we deny the petition for 3
review. 4

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