12-2124
         Li v. Lynch
                                                                                         BIA
                                                                            Gordon-Uruakpa, IJ
                                                                                 A087 441 727
                         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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 21st day of April, two thousand sixteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       SHUYI LI,
14                     Petitioner,
15
16                     v.                                       12-2124
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               June Zhou, Deerfield Beach, Florida.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Christopher C. Fuller,
27                                     Deputy Chief; Alison Marie Igoe,
28                                     Senior Counsel, National Security
29                                     Unit, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Shuyi Li, a native and citizen of the People’s Republic

 6   of China, seeks review of an April 17, 2012, decision of the

 7   BIA affirming the October 9, 2009, decision of Immigration

 8   Judge (“IJ”) Vivienne Gordon-Uruakpa, denying him asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Shuyi Li, No. A087 441 727

11   (B.I.A. Apr. 17, 2012), aff’g No. A087 441 727 (Immig. Ct.

12   N.Y. City Oct. 9, 2009).   We assume the parties’ familiarity

13   with the underlying facts and procedural history in this

14   case.

15       We have reviewed both the IJ’s and the BIA’s opinions

16   “for the sake of completeness.”   Zaman v. Mukasey, 514 F.3d
17   233, 237 (2d Cir. 2008).   The applicable standards of review

18   are well-established.   See Xu Sheng Gao v. U.S. Att’y Gen.,

19   500 F.3d 93, 98 (2d Cir. 2007).   The agency did not err in

20   concluding that Li was statutorily barred from asylum and

21   withholding of removal as a persecutor.

22



                                   2
 1       Under Immigration and Nationality Act (“INA”)

 2   §§ 208(b)(2)(A)(i) and 241(b)(3)(B)(i), 8 U.S.C.

 3   §§ 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i), an alien who has

 4   “ordered, incited, assisted, or otherwise participated in

 5   the persecution of any person on account of race, religion,

 6   nationality, membership in a particular social group, or

 7   political opinion” is ineligible for asylum and withholding

 8   of removal.   These provisions are known collectively as the

 9   “persecutor bar.”     Xu Sheng Gao, 500 F.3d at 98.

10       Four elements must exist before the persecutor bar

11   applies.   See Balachova v. Mukasey, 547 F.3d 374, 384 (2d

12   Cir. 2008).   “First, the alien must have been involved in

13   acts of persecution.”     Id.     Second, a “nexus must be shown

14   between the persecution and the victim’s race, religion,

15   nationality, membership in a particular social group, or

16   political opinion.”     Id.     Third, if the alien “did not

17   incite, order, or actively carry out the persecutory acts,

18   [he] must have assisted the persecution.”        Id. (internal

19   quotation marks omitted).       Finally, the applicant must have

20   had “sufficient knowledge that his . . . actions [would]

21   assist in persecution.”       Id. at 385.

22



                                        3
 1       At issue here is whether substantial evidence supports

 2   the conclusion that Li knowingly committed acts that

 3   assisted in forced abortions.       See id. at 384-85; see also

 4   Yan Yan Lin v. Holder, 584 F.3d 75, 80 (2d Cir. 2009) (“It

 5   is settled law that forced abortion is persecution on

 6   account of political opinion.”).      This Court has found that

 7   when an individual’s “conduct was active and had direct

 8   consequences for the victims, . . . it was ‘assistance in

 9   persecution,’[but] [w]here the conduct was tangential to the

10   acts of oppression and passive in nature, . . . it [did not]

11   amount[] to such assistance.”       Zhang Jian Xie v. INS, 434

12 F.3d 136, 143 (2d Cir. 2006).

13       Li’s testimony reveals that, as a family planning

14   clerk, he knew that reporting women who were in violation of

15   the family planning policy to the director of his office

16   would result in those women suffering forced abortions.

17   Furthermore, Li testified that he alone reported at least

18   one family planning violation that directly led to a forced

19   abortion.   He also testified that he conducted two other

20   investigations, in which other family planning clerks were

21   involved, that led to women being reported for violations

22   and forced to undergo abortions.      Thus, Li’s testimony


                                     4
 1   supports the agency’s conclusion that he knowingly played a

 2   direct and consequential role in persecution.    See id.; see

 3   also Yan Yan Lin, 584 F.3d at 81 (describing as tangential

 4   those acts that “did not contribute to, or facilitate, the

 5   victims’ forced abortions in any direct or active way

 6   because they did not cause the abortions, nor did they make

 7   it more likely that they would occur.” (internal quotation

 8   marks and alterations omitted)).

 9       Moreover, even if voluntariness were relevant to the

10   applicability of the persecutor bar, which it is not, there

11   is no support for Li’s contention that he had to work as a

12   family planning clerk to support his family.    In fact, Li

13   testified that he remained in that position for the salary

14   and government insurance although he could have found work

15   in a private company and bought private insurance.    See

16   Balachova, 547 F.3d at 385; see also Zhang Jian Xie, 434
17 F.3d at 143.

18       We have suggested that redemptive acts might mitigate

19   assistance in persecution in the persecutor bar context.

20   See Zhang Jian Xie, 434 F.3d at 143-44.   However, the agency

21   did not err in concluding that the persecutor bar applied to

22   Li regardless of the fact that he declined to report many

23   family planning violators, particularly given his knowledge
                                  5
 1   of the consequences of the reports he had made and the fact

 2   that he did so as part of his voluntary employment.    See id.

 3              Accordingly, the evidence supports the agency’s

 4   conclusion that Li’s conduct constituted assistance in

 5   persecution rendering him statutorily ineligible for asylum

 6   and withholding of removal pursuant to the persecutor bar.

 7   See 8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see also

 8   Balachova, 457 F.3d at 384-85; Zhang Jian Xie, 434 F.3d at

 9   143.    Li does not challenge the IJ’s denial of CAT relief.

10          For the foregoing reasons, the petition for review is

11   DENIED.

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




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