Guo Ying Chen v. Gonzales

dissenting.

I would deny the petition because the BIA’s determination that insertion of an IUD does not constitute political persecution is not an unreasonable construction of 8 U.S.C. § 1101 (a)(42)(B). That section on its face applies only to forced abortions and involuntary sterilizations. An IUD is neither. Nor was the mild pressure that Chen testified her mother was subjected to of the sort that persecution is made of. Li v. Ashcroft, 356 F.3d 1153 (9th Cir.2004), does not compel a contrary conclusion because there the petitioner actively opposed China’s family policy while in China— which Chen did not — and was forced to undergo an offensive examination in retaliation for her political opinion — which did not happen to Chen. She voluntarily went to the hospital and chose her IUD.

I disagree with the majority that the BIA improperly ignored Chen’s “new medical symptoms” and evidence of physical pain caused when the IUD shifted position *36 years after insertion. While her discomfort was unfortunate, the issue before the BIA on reopening was not merely whether Chen experienced or feared pain, but whether she feared persecution on account of a protected ground. Chen’s medical…

MEMORANDUM **

Petitioner Guo Ying Chen, a native and citizen of China, petitions for review of two decisions of the Board of Immigration Appeals (BIA) denying her application for asylum and her subsequent motion to reopen that application. We review the BIA’s denial of an applicant’s motion to reopen for an abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). We have held that the BIA abuses its discretion if it fails to consider new, material evidence offered by an applicant in support of a motion to reopen. See, e.g., Mejia v. Ashcroft, 298 F.3d 873, 879-80 . (9th Cir.2002).

*35 Chen’s asylum claim alleged that she was persecuted by the Chinese government because she was required to have an IUD implanted after giving birth to a child out of wedlock, in violation of China’s family planning policies. After her asylum application was denied by the IJ and the BIA, Chen moved to reopen. Chen presented evidence that, after the denial of her initial application, she began to experience worsening medical symptoms, including dizziness, severe abdominal pain, and loss of consciousness, that were linked to her IUD. She provided a doctor’s note stating that her…