Jiang v. BCIS (2d Cir. 3/14/08)

SOTOMAYOR Sack Pooler

The 2d Cir remanded to the Board for the Board to enunciate a consistent position on IUD insertion.  In this case, the Petitioner was found ineligible due to the persecutor bar, because she had worked as a family planning nurse. But in other cases, the Board found that forcible IUD insertion is not persecution. 

Read decision here:

This case arose in the context of someone employed as a family planning nurse, who was set to guard women scheduled to have forced abortions, etc.  The Board found her ineligible for asylum based on the persecutor ground.  But the Board denied asylum in other cases, not finding IUD insertion to be persecution. 

1.  Remanded the case to the BIA to permit it to make a principled, consistent determination.

   This Court recently remanded a case in which the BIA denied an application for asylum and withholding of removal based on its conclusion that forcible IUD insertion does not constitute persecution. Ying Zheng v. Gonzales, 497 F.3d 201, 202 (2d Cir. 2007). The panel in Ying Zheng determined that remand was appropriate for two principal reasons. First, the BIA has “not yet opined on this issue in a published, precedential opinion, thus depriving the bench, the bar and potential asylum applicants of guidance concerning whether and how they might approach the issue.” Id. at 203. Second, the BIA “has taken contrary positions on this issue” by holding in Ying Zheng that involuntary insertion of an IUD does not constitute persecution but assuming in at least one other case that it does. See id. (citing Yahong Zheng v. Gonzales, 409 F.3d 804 (7th Cir. 2005) (stating that the BIA “assumed that the involuntary insertion of IUDs constitutes persecution pursuant to a ‘coercive population control program’”)). Ying Zheng remanded the case to the BIA “so that it might articulate its position concerning whether and under what conditions the forced insertion of an IUD constitutes persecution.” Id. at 203-04.

   We now confront a case in which the BIA has affirmed the IJ’s holding that forcible IUD insertion constitutes persecution, at least when accompanied by some period of detention. Because the factual background provided in unpublished BIA opinions is sparse, we are unable to determine whether previous BIA decisions rejected claims of persecution based on forcible IUD insertion because they did not involve allegations of detention.3 To further the goals of uniformity and fairness that prompted our remand on the same issue in Ying Zheng, we remand this case to the BIA for it to articulate a consistent position on “whether and under what conditions forced insertion of an IUD constitutes persecution.”4 Id. In doing so, we urge the BIA to apply consistently the standard for what conduct constitutes “persecution” for purposes of establishing refugee status, see 8 U.S.C. § 1101(a)(42), and for purposes of determining whether an individual who “ordered, incited, assisted, or otherwise participated in” that conduct would be subject to the persecutor bar, see 8 U.S.C. §§ 1158(b)(2)(A)(i) & 1231(b)(3)(B)(i), or to explain adequately its reasons for not doing so.5 We find it troubling that, in the context of an application for asylum, the BIA concluded that forcible IUD insertion does not constitute persecution, but then applied the persecutor bar to an applicant based on a conclusion that forcible IUD insertion does constitute persecution because a period of detention preceded it. 

2.  Notes that whether someone is a persecutor and whether they qualify asylum involves the same definition, which should be interpreted consistently.

   FN5 Indeed, to establish status as a “refugee” under 8 U.S.C. § 1101(a)(42), an alien must demonstrate “persecution or a well-founded fear of persecution on account of” a protected ground. The same definition of “refugee” excludes “any person who ordered, incited, assisted or otherwise participate in the persecution of any person on account of” a protected ground. Id. We see no reason why use of the term “persecution” within the same definition of the statute would have two different meanings. Cf. U. S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., 508 U.S. 439, 460 (1993) (requiring party to rebut the presumption that “identical words used in different parts of the same act are intended to have the same meaning” (emphasis added) (internal citation omitted)).

Atty: Ted Cox

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.