Zheng, Yahong v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2402
YAHONG ZHENG,
Petitioner,
v.
ALBERTO R. GONZALES,1
Attorney General of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A79-287-264
____________
ARGUED MARCH 29, 2005—DECIDED MAY 24, 2005
____________
Before CUDAHY, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Yahong Zheng petitions for review
of an order of the Board of Immigration Appeals (“BIA”) af-
firming the denial of her claim for withholding of removal
under 8 U.S.C. § 1231(b)(3). Zheng, a native of China, argues
that she established eligibility for relief because she was per-
secuted under a “coercive family planning program” within
1
Pursuant to FED. R. APP. P. 43(c), we have substituted Alberto
R. Gonzales for John D. Ashcroft as the named respondent.
2 No. 04-2402
the meaning of the expanded definition of “refugee” in 8
U.S.C. § 1101(a)(42)(B). Zheng testified that she was
repeatedly subjected to the involuntary insertion of
intrauterine devices (“IUDs”) after she and her husband had
a child without obtaining a “birth permit” from the Chinese
government. The BIA assumed that Zheng’s testimony was
credible and also assumed that the involuntary insertion of
IUDs constitutes persecution pursuant to a “coercive
population control program” for purposes of § 1101(a)(42)(B).
Nonetheless, the BIA denied Zheng’s claim for relief because
it found her evidence “lack[ed] sufficient detail to meet her
burden of proof.” Because the BIA’s decision is not sup-
ported by substantial evidence, we grant the petition for
review.
I. Background
A. Facts
Zheng is a 36-year-old native of Guangtao Village in
Fujian Province in the People’s Republic of China. She mar-
ried Xing Dong in 1990. The couple registered the marriage
in February 1991 and were fined for filing the registration
late. Zheng gave birth to a son in November 1991 without
having received a “birth permit” from the Chinese govern-
ment. She testified that during her pregnancy her husband’s
employer threatened to fire him if she did not have an
abortion and that her husband was in fact fired from his
factory job after their son’s birth. Zheng submitted a copy
of her husband’s notice of termination, dated February 6,
1992, which corroborates her testimony. The notice states
that Xing Dong resisted the “education and persuasion” of
his supervisors and “argued with the Birth Control officer
several times.” The notice further provides that pursuant to
China’s “Population and Family Planning Law” and Fujian
Province’s “Family Planning Stipulations,” the factory’s
Communist Party Committee terminated Xing Dong’s em-
No. 04-2402 3
ployment in order to “maintain our factory’s honor on Birth
Control matters and to educate other workers in this fac-
tory.” Xing Dong left China in March 1992 and has since
been living in the United States, except for a brief return to
China in 1996 to attend to his ailing mother.
Zheng testified that after her son was born, she and her
husband were identified as “Birth Planning Targets” and she
was repeatedly required to submit to involuntary insertion
of IUDs in order to prevent further pregnancies. Zheng tes-
tified that Chinese birth control officers forced her to have
an IUD inserted on three specific occasions. The first time,
in May 1992, birth control officials came to Zheng’s home
and took her to a hospital where doctors implanted an IUD.
Zheng testified that she contracted an infection from the
procedure and also suffered from bleeding, headaches, and
fatigue, which she attributed to the IUD. Zheng had the
IUD removed by a private physician in January 1994. The
removal was discovered at a quarterly checkup in
May 1994, and a second IUD was inserted against her will.
Zheng again had the IUD removed, and it was replaced
with a third in December 1994.
Zheng provided copies of two written notices of
“Implementation of Birth Control Measures,” which corrob-
orate that she and her husband were identified as “Birth
Planning Targets” by the Villagers Committee of Guangtao
because they had one child. The notices, dated 1998 and 1999,
reiterate China’s “Birth Planning” policy and urge that she
“enthusiastically respond to the calling of the government”
and report for a “Female Examination” by a certain date or
face “necessary corresponding administrative measures.”
Zheng had the third IUD removed in 1999 and left China
for the United States in 2000.
In her testimony and affidavit in support of her asylum
application, Zheng stated that she entered the United States
through Mexico in August 2000, after a four-day journey on
4 No. 04-2402
foot. However, the government asserts, without citing rec-
ord evidence, that Zheng told an INS agent during her
asylum interview that she flew to Los Angeles and passed
through the airport without being stopped by immigration
officials. Zheng’s written asylum application contains no de-
tails about how she entered the United States, but at her
hearing she denied ever having told an immigration official
that she arrived in the country at a Los Angeles airport.
Zheng rejoined her husband, who was living in New Lenox,
Illinois, and in July 2001 she gave birth to a second child,
a daughter. She testified that as the mother of two children,
and because of her past violations of China’s population
control policies, she would likely be subjected to involuntary
sterilization and other punishment, including jail, if
removed to China.
B. Case History
Zheng filed her asylum application in May 2001, just be-
fore the birth of her daughter, and also sought withholding
of removal and relief under the Convention Against Torture
(CAT). After an interview with an INS officer, her petition
was rejected and the INS filed a Notice to Appear charging
her with removability under 8 U.S.C. § 1227(a)(1)(A). Zheng
conceded removability and a hearing was held in February
2003 before an Immigration Judge (“IJ”). The IJ denied all
forms of relief and ordered Zheng removed to China.
Regarding Zheng’s asylum claim, the IJ first determined
that Zheng had not established the time, date, and manner
of entry to show that she filed for asylum within one year of
arrival in the United States, as required by 8 U.S.C.
§ 1158(a)(2)(B). However, the IJ also addressed the merits
of Zheng’s asylum application, concluding that she was not
credible and thus had not established that she suffered past
persecution “by the alleged IUDs.” The IJ also denied
Zheng’s claim for withholding of removal under § 1231(b)(3),
No. 04-2402 5
which is not subject to the one-year deadline applicable to
asylum claims. The IJ determined that Zheng had not dem-
onstrated the clear probability of persecution required for
such relief because she was not a credible witness. The IJ
also relied on this adverse credibility finding to deny Zheng’s
claim for relief under the CAT.
Zheng appealed the IJ’s order of removal to the BIA.
Zheng argued that she was eligible for asylum because she
was a “refugee” within the meaning of the Immigration and
Nationality Act (“INA”) as a person who resisted a “coercive
population control program.” The INA defines a “refugee” as
a person who is unable or unwilling to return to the country
of his nationality because of “persecution or a well-founded
fear of future persecution on account of race, religion, nation-
ality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). The Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”)
amended the definition of “refugee” to cover certain appli-
cants seeking relief from China’s one-child policy who before
the amendment could not establish persecution on one of
the five enumerated grounds. See Lin v. Ashcroft, 385 F.3d
748, 752 (7th Cir. 2004).
Under the amended statute, an applicant may establish
past persecution on account of political opinion if she: (1)
has been forced to abort a pregnancy, (2) has undergone in-
voluntary sterilization, (3) has been persecuted for failing
or refusing to undergo either such procedure, or (4) has
been persecuted for “other resistance to a coercive popula-
tion control program.” 8 U.S.C. § 1101(a)(42)(B); Lin, 385
F.3d at 752. Zheng argued that she met the statutory
definition because she credibly testified that she suffered
past persecution by the involuntary implantation of IUDs
and resisted China’s population control policy by having the
IUDs removed illegally.
Zheng also argued that she established a likelihood of
future persecution that was credible “in light of the family
planning policy and practice in China” because as the mother
6 No. 04-2402
of two children, she would face involuntary sterilization
if returned to China. Zheng asserted that the IJ unfairly
relied upon State Department Country Reports in his deci-
sion; in particular, she challenged the IJ’s reliance on the
Country Reports to support his conclusion that “in urban
areas . . . the one child policy is not strictly enforced”2 and
that Chinese tend to immigrate for economic rather that
political reasons. Zheng argued that the State Department
reports were outdated, internally inconsistent, inaccurate,
and too generalized to permit an individualized assessment
of her claim. Zheng also took issue with the IJ’s conclusion
that her husband was unlikely to have been fired for the
couple’s violation of China’s family planning policies.
The BIA affirmed in a two-page opinion. The BIA agreed
with the IJ that Zheng’s asylum claim was statutorily time-
barred and thus only reached the merits of her applications
for withholding and relief under the CAT. The BIA did not
accept the IJ’s adverse credibility finding, but instead held
that “even if we were to fully credit her testimony and as-
sume that the insertion of IUD’s [sic] constitutes a cognizable
claim under section 101(a)(42) of the Act, her testimony
lacks sufficient detail to meet her burden of proof.”
The BIA noted that although Zheng claimed she had
received medical attention in the United States for health
problems resulting from the IUDs, she did not produce any
documents to corroborate that treatment. The BIA also
found it “particularly critical” that Zheng’s husband was
present in the United States but did not testify in corrobo-
ration of her story. The BIA also attached significance to
the fact that Zheng had not been forcibly sterilized after she
had the IUDs removed illegally. Finally, the BIA noted the
2
The IJ presumably meant to state that the Country Report
suggests that the one-child policy is not rigidly enforced in rural
areas, like the area where Zheng lived.
No. 04-2402 7
fact that Zheng’s siblings and her husband’s siblings had
more than one child, which was “consistent with” the State
Department’s report that the one-child policy is not strictly
enforced in the part of China where Zheng lived. For these
reasons, the BIA concluded that Zheng had not established
that it was “more likely than not that she will face either
persecution or torture if returned to China.”
II. Analysis
On this review Zheng has abandoned her argument that
she is eligible for relief under the CAT because she has not
discussed that claim in her opening brief. Lin, 385 F.3d at
750. Acknowledging our lack of jurisdiction to review asy-
lum decisions based on the timeliness of the application, see
Zaidi v. Ashcroft, 377 F.3d 678, 681 (7th Cir. 2004), Zheng
also does not seek review of the denial of her asylum claim.
The only issue before us is the denial of Zheng’s claim for
withholding of removal.
A preliminary question is whether to limit our review to
the BIA’s opinion or consider the IJ’s decision as well. Typi-
cally when the BIA issues an opinion, that opinion becomes
the basis of review. Niam v. Ashcroft, 354 F.3d 652, 655
(7th Cir. 2004). But if the BIA merely supplements the IJ’s
decision, we review the decision of the IJ as supplemented
by the BIA. Id. at 655-66. Our reading of the BIA’s opinion
is that it is not merely supplemental. Indeed, the BIA did
not accept the IJ’s credibility determination, but, rather,
evaluated the case on the assumption that Zheng’s testi-
mony was fully credible. Accordingly, we will limit our
review to the BIA’s opinion.
A denial of an application for withholding of removal will
be affirmed if supported by substantial evidence. Nigussie
v. Ashcroft, 383 F.3d 531, 534 (7th Cir. 2004). We will not
reverse a decision of the BIA unless the evidence compels
the contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478,
8 No. 04-2402
481 (1992); Nigussie, 383 F.3d at 534. To establish eligibility
for withholding of removal under 8 U.S.C. § 1231(b)(3),
Zheng has the burden of demonstrating a clear probability
of persecution if removed to China. See Prela v. Ashcroft,
394 F.3d 515, 519 (7th Cir. 2005). A “clear probability”
exists where the applicant demonstrates that it is “more
likely than not” that she would be persecuted if returned to
her native country. Id. If an applicant establishes that she
has been subjected to past persecution, a presumption
arises that the persecution will continue upon her return.
Zaidi, 377 F.3d at 681. “Even if an applicant cannot create
a presumption of a well-founded fear of future persecution
by affirmatively demonstrating past persecution, she can
demonstrate a well-founded fear of persecution if the fear
is subjectively genuine and objectively reasonable.” Diallo
v. Ashcroft, 381 F.3d 687, 699 (7th Cir. 2004). The standard
for establishing eligibility for withholding of removal is more
stringent and harder to meet than that for asylum. Balogun
v. Ashcroft, 374 F.3d 492, 508 (7th Cir. 2004); Dobrican v.
INS, 77 F.3d 164, 168 (7th Cir. 1996).
As we have noted, the BIA assumed the credibility of
Zheng’s testimony and also assumed that the involuntary
insertion of IUDs constitutes “a cognizable claim” of pers-
ecution on account of political opinion under amended defi-
nition in 8 U.S.C. § 1101(a)(42)(B). Nonetheless, the BIA
concluded that Zheng’s testimony “lacks sufficient detail
to meet her burden of proof.” The record simply does not
support this conclusion. If Zheng’s testimony is accepted as
true (the BIA assumed this); and if repeated involuntary
insertion of IUDs constitutes persecution for resistance to
a coercive population control program under § 1101(a)(42)(B)
(the BIA assumed this as well); then Zheng necessarily has
met her burden of proving past persecution and “is auto-
matically entitled to the presumption of a well-founded fear
of future persecution.” Lin, 385 F.3d at 757; 8 C.F.R.
§ 1208.13(b)(1).
No. 04-2402 9
Zheng testified with specificity that she gave birth to a
child without a birth permit, was identified as a “Birth
Planning Target,” and thereafter on three occasions had an
IUD inserted against her will. She further testified that the
IUDs caused health problems that included bleeding and
headaches. She likewise provided specific testimony about
where and when she had the IUDs illegally removed.
Having assumed the full credibility of Zheng’s testimony,
the BIA’s rejection of her claim for lack of “sufficient detail”
is inexplicable.
The BIA apparently expected corroboration from Zheng’s
American doctor and also from her husband. In applying
the corroboration rule, an IJ (or the BIA) must provide: (1)
an explicit credibility finding, (2) an explanation of why it
is reasonable to expect additional corroboration, and (3) an
account of why the petitioner’s explanation for not produc-
ing that corroboration is inadequate. Gontcharova v.
Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004). But we have
repeatedly held that corroboration is not required when an
applicant testifies credibly. Lin, 385 F.3d at 751; Uwase v.
Ashcroft, 349 F.3d 1039, 1041 (7th Cir. 2003). Here, the BIA
assumed Zheng’s complete credibility. Given this assump-
tion, the BIA’s application of the corroboration rule was
misplaced.
Zheng’s testimony was sufficiently specific as to time,
place, and pertinent details regarding the IUD insertions
and removals. She also supplied documentary evidence of
the termination of her husband’s employment as a result of
the couple’s violation of China’s childbirth restrictions, as
well as copies of two notices identifying the couple as “Birth
Planning Targets” and requiring her to submit to “Female
Examinations.” Absent a sound reason to doubt her credibil-
ity, we cannot see how Zheng’s testimony and documentary
evidence lacked the specificity required to carry her burden
of proving past persecution.
10 No. 04-2402
The BIA also concluded that “the claimed threat of steril-
ization has not been demonstrated on this record” because
Zheng “was not sterilized when she was required to return
for IUD insertion on several occasions after having them
illegally removed.” The BIA opinion also refers to Zheng’s
“family history” as being “consistent with the State
Department’s assessment that the one-child policy is not
rigidly enforced in her area.” Zheng testified that her
husband’s siblings have two, three, and four children, re-
spectively, and her own siblings have one and two children,
respectively (the BIA opinion incorrectly states that Zheng’s
siblings had two and three children, respectively). However,
the record does not tell us whether Zheng’s nieces and
nephews were born with or without official permission, or
whether her relatives were identified as “Birth Planning
Targets” and subjected to involuntary IUD insertions as a
result of their own childbearing histories, or whether they
resisted China’s population control policy by having IUDs
illegally removed. Without this additional evidence, the
childbearing histories of Zheng’s siblings and in-laws have
only limited relevance to her claim.
In any event, these are precisely the circumstances that
make Zheng a target for persecution if she returns to China.
Zheng has repeatedly defied China’s population control pol-
icy—perhaps others in her family have as well. Although
State Department Country Reports are entitled to deference,
they cannot substitute for an individualized determination
of an asylum or withholding claim; we have cautioned
against “over-reliance” on the Country Reports because of
their potential for bias and the inability of asylum seekers
to question their conclusions. Lin, 385 F.3d at 754; Diallo,
381 F.3d at 700. That Zheng was not forcibly sterilized for
her past birth control violations does not make it less likely
that she will face involuntary sterilization in the future. On
this record there is a reasonable contrary inference— that
the threat of involuntary sterilization is now likely to be
No. 04-2402 11
greater based on her continued defiance of her country’s
population control policy by having a second child.
Accordingly, having assumed the credibility of Zheng’s tes-
timony, the BIA’s conclusion that her evidence was insuffi-
ciently detailed to carry her burden of proof is not supported
by substantial evidence. As we have noted, IIRIRA expanded
the statutory definition of “refugee” in § 1101(a)(42)(B) to
provide that forced abortion and involuntary sterilization
are forms of persecution on account of political opinion. Lin,
385 F.3d at 752. The amended definition also specifies that
persecution for “failure or refusal to undergo such a proce-
dure” constitutes persecution on account of political opinion,
as does persecution for “other resistance to a coercive
population control program.” Id. Finally, the definition
provides that a person who has a well-founded fear that she
will be forced to undergo an abortion or involuntary steril-
ization or will be persecuted for failing or refusing to do so,
or has a well-founded fear of persecution for resisting a
“coercive population control program” “shall be deemed to
have a well-founded fear of persecution on account of
political opinion.” 8 U.S.C. § 1101(a)(42)(B).
We recently suggested that credible evidence of involun-
tary insertion of IUDs and required female medical check-
ups might establish persecution under a “coercive population
control program” and that having IUDs removed by a private
doctor may constitute “resistance” to such a program. Lin,
385 F.3d at 757. Lin involved an asylum applicant from
China who testified to two involuntary abortions and three
involuntary IUD insertions. Id. at 749-50. We rejected the
IJ’s adverse credibility finding because it was not supported
by substantial evidence and remanded for reconsideration
of the claim. Id. at 757 (remanding for reconsideration of
whether two forced abortions constitutes past persecution
under the expanded definition and also whether “three in-
voluntary IUD insertions and mandatory checkups could
constitute persecution as a ‘coercive population control pro-
12 No. 04-2402
gram’ under the amended statutory definition or whether
[petitioner’s] efforts to have the IUDs removed by private
doctors is the type of ‘resistance’ that Congress sought to
protect”).
Thus far, however, no court of appeals has decided whether
persecution under the expanded definition of “refugee” can
be established on the basis of forcible IUD insertions alone.
Cf. Wang v. Ashcroft, 341 F.3d 1015, 1020 (9th Cir. 2003)
(holding that alien established past persecution “through
two forced abortions and an IUD insertion”). The BIA as-
sumed that the answer to this question is “yes.” The agency
thus assumed rather than decided the heart of this case.
By assuming rather than deciding that Zheng was credible
and that the repeated involuntary insertion of IUDs consti-
tutes persecution within the meaning of § 1101(a)(42)(B),
the BIA has provided us with scant basis for review. See Iao
v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005) (when the
immigration decision merely assumes credibility and says
that an applicant “hasn’t carried her burden of proof, the
reviewing court is left in the dark”); Diallo, 381 F.3d at 699
(citing with approval Krastev v. INS, 292 F.3d 1268, 1279
(10th Cir. 2002) (“we caution the BIA that its practice of
simply assuming, without deciding, credibility is not fa-
vored”)); Cordon-Garcia v. INS, 204 F.3d 985, 993 (9th Cir.
2000) (statements such as “even were we to assume that the
respondent was a credible witness” do not allow the reviewing
court to “undertake a meaningful analysis”). For the reasons
we have noted above, the BIA’s sole ground for rejecting
Zheng’s claim—that she had not met her burden of proof—
was largely unreasoned and unsupported by the record.
“[W]e are not authorized to affirm unreasoned decisions.”
Iao, 400 F.3d at 535.
Accordingly, we GRANT the petition for review and
REMAND for further proceedings consistent with this opinion.
No. 04-2402 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-24-05
14 No. 04-2402