Yumin Xiang v. Loretta Lynch , 845 F.3d 306 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2189
YUMIN XIANG,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A201-011-597
____________________
ARGUED DECEMBER 7, 2016 — DECIDED JANUARY 3, 2017
____________________
Before BAUER and FLAUM, Circuit Judges, and SHADID, Chief
District Judge. *
SHADID, Chief District Judge. Yumin Xiang is a 46-year-old
female citizen of the People’s Republic of China petitioning
for review of an order upholding the denial of her application
* Of the Central District of Illinois, sitting by designation.
2 No. 16-2189
for asylum and withholding of removal. 1 Her request for asy-
lum was denied both initially by the Immigration Judge (“IJ”)
and on appeal to the Board of Immigration Appeals (“BIA”)
based on the IJ’s finding that Xiang’s written request and oral
testimony contained inconsistencies. Xiang now seeks review
of the BIA’s decision.
Yumin Xiang came to the United States on a visa as a visi-
tor for business on September 5, 2011, with authorization to
remain for a temporary period not to exceed March 4, 2012.
She submitted an application for asylum and withholding of
removal with the United States Citizenship and Immigration
Services (“USCIS”) on January 30, 2012. She alleged that prior
to coming to the United States, she and her husband had a son
in 1992. As a result, Xiang was given a single-son certification
by the family planning office, and was told to follow birth
control guidelines. Xiang stated that she suffered persecution
under China’s strict family planning policies. She alleged that
she had been forced to have an abortion when she became
pregnant after her first son was born. Further, she had been
forced to have intrauterine devices (“IUD”) involuntarily in-
serted on multiple occasions, which caused serious medical
issues and loss of her fertility. USCIS denied her application
and the Department of Homeland Security issued a Notice to
Appear, charging Xiang with removal from the United States
for overstaying her visa.
1 Xiang also requested withholding of removal and protection under
the United Nations Convention Against Torture and Other Cruel, Inhu-
man or Degrading Treatment or Punishment (“CAT”). However, she has
since abandoned her request for protection under CAT.
No. 16-2189 3
On April 12, 2012, Xiang appeared before the IJ, admitted
the charges against her, conceded removability, and renewed
her request for asylum and withholding of removal. On June
16, 2014, Xiang appeared with counsel and testified before the
IJ.
Xiang testified that she suffered persecution for her oppo-
sition to China’s family planning policy and fears future per-
secution if she returns to China. According to her testimony,
soon after the birth of her son, Xiang became pregnant again.
Although she and her family wanted to take the pregnancy to
term, the family planning office was informed of her illegal
pregnancy through a neighbor. Three women came to her
home and forced her to come with them to the hospital. She
testified that her mother-in-law was pushed and fell to the
ground. Xiang was then placed in a car with the words “Dis-
trict Family Planning Office” on the outside and driven to
Sujiatun District Hospital, where her pregnancy was con-
firmed. Although she resisted and told the officials and doctor
that she did not want to have an abortion, the officials
dragged her into the surgical room. Xiang stated that she
asked the doctor not to perform the abortion. According to
Xiang, he told her that she could not escape because the offi-
cials were outside the door. He also told her that if she did not
have the abortion now, she would have to have the abortion
the next day. She then testified that the doctor ordered her to
sit on a surgical chair and he performed a painful abortion
procedure. After the abortion, she was taken home and used
over-the-counter pain medication because she was not given
any medication.
4 No. 16-2189
Xiang testified that a month later, family planning officials
visited her home and informed her she had to get an IUD in-
serted, or she would “suffer and have more trouble.” Xiang
complied, but experienced side effects such as pain and
longer menstrual periods. When she sought medical help at
the hospital, a doctor confirmed that the IUD caused her
symptoms, but that he was unable to remove the IUD without
a certified letter from the family planning office. Xiang had
the device removed at a private clinic.
Xiang testified that she became pregnant again in winter
of 1995, and the family planning officials forced her to have a
second abortion. Shortly thereafter she was forced to have an-
other IUD inserted. She had it removed by a private clinic
when it caused her adverse side effects. During a required an-
nual check-up, required for women of child-bearing age, the
doctor ordered another IUD inserted. Because of her com-
plaints of the side effects from the M-ring IUDs, the doctor
inserted a T-ring IUD. Xiang once more had this IUD removed
at a private clinic.
Xiang then testified that she became pregnant again in the
summer of 1998. Although she considered moving away, she
was reluctant to do so because her son was still in school.
Family planning officials discovered her third pregnancy, and
she was forced to have a third abortion and subsequently
forced to have another IUD inserted. She testified that she did
not remove the IUD until 2003 because she was afraid of hav-
ing any more procedures. Her last IUD was inserted in 2003,
but in 2010 she wished to remove it due to a pelvic inflamma-
tory disease and blocked fallopian tubes. Because she needed
to obtain a certified letter from the family planning office to
No. 16-2189 5
remove the IUD, Xiang again sought to have it removed at a
private clinic.
Xiang testified that she did not have the records of her vis-
its to the private clinic because those clinics do not issue doc-
umentation. She also stated that she mailed the original 2010
medical report but it never reached its destination, so she had
to provide a copy. When asked why the 2010 medical report
only mentions one abortion, Xiang answered: “I was so
young. To me, the memory was so fresh, and the suffering
was so high.” Xiang testified that she told the doctor that she
had had three forced abortions, although he noted only one.
The IJ concluded that Xiang was not credible due to her
vague and inconsistent testimony. An IJ may properly base
credibility determinations on “the consistency between the
applicant’s … written and oral statements … [and] the inter-
nal consistency of each such statement,” as well as any incon-
sistencies between the two. 8 U.S.C. § 1158(b)(1)(B)(ii); Long-
Gang Lin v. Holder, 630 F.3d 536, 544 (7th Cir. 2010); Hassan v.
Holder, 571 F.3d 631, 637 (7th Cir. 2009). The IJ asked why her
husband stated that her abortion occurred in October and she
testified that it occurred in summer. Xiang responded that her
husband is old, although the IJ observed that her husband
was around 50-years-old and found this explanation insuffi-
cient. Prior to Xiang’s testimony, she did not mention the
three family planning officials who came to her home, or the
presence of her mother-in-law when they arrived at her home.
When asked about the discrepancies and new facts that were
not asserted before her testimony, Xiang responded that “she
did not write in such minute detail.”
The IJ also found that Xiang did not provide sufficient cor-
roborative evidence to meet her burden to establish eligibility
6 No. 16-2189
for asylum or withholding of removal. An applicant for asy-
lum meets her burden of proof without corroboration if her
testimony is credible, persuasive, and contains sufficient, spe-
cific facts. 8 U.S.C. § 1158(b)(1)(B)(ii). Corroborating evidence
is necessary when the applicant’s testimony is found not cred-
ible. Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir. 2004). Xiang
provided copies of her passport, visa, medical records from
Shenyang City Hospital, a letter from her husband in China,
her and her son’s birth certificates, her marriage certificate,
and accompanying English translations for each document.
The 2010 medical report refers to one past abortion and re-
peated IUD insertions. The IJ determined that Xiang should
have provided more medical records of other routine proce-
dures and annual checkups. Although the testimony is un-
clear as to whether Xiang could obtain these records, and the
IJ acknowledged that the hospital would not keep records of
forced abortions, the IJ ultimately concluded that Xiang could
have requested or reasonably obtained these medical records.
The IJ also found that the husband’s letter gave little detail of
the abortion and IUD insertions and removals.
The BIA affirmed the IJ’s decision that Xiang did not meet
her burden on April 29, 2016. What is left unclear in the IJ’s
decision, however, is a finding of whether Xiang actually had
at least one forced abortion. If so, a different analysis would
have been required.
Congress has expressly addressed forced abortions in 8
U.S.C. § 1101(a)(42), which provides that a person who has
been forced to abort a pregnancy “shall be deemed to have
been persecuted on account of political opinion.” If an indi-
vidual seeking asylum is found to have suffered such past
persecution, that individual is also entitled to a presumption
No. 16-2189 7
of a well-founded fear of future persecution.
8 U.S.C. § 1101(a)(42)(B); 8 C.F.R. § 1208.13(a)–(b); Lin v. Ash-
croft, 385 F.3d 748, 752-53 (7th Cir. 2004). The burden then
shifts and the government must properly rebut this presump-
tion by a preponderance of the evidence. See 8 C.F.R.
§§ 1208.13(b)(1)(i), 1208.16(b)(1)(i).
An applicant can further meet her burden for withholding
of removal if she can show a clear probability that her life or
freedom would be threatened on account of political opinion.
Borovsky v. Holder, 612 F.3d 917, 921 (7th Cir. 2010); Zheng v.
Gonzales, 409 F.3d 804, 809 (7th Cir. 2005). If she can establish
past persecution, the applicant meets her burden and her life
or freedom is presumed to be threatened. 8 C.F.R.
§ 1208.16(b)(1)(i).
Thus, if the IJ had credited Xiang’s claim that she had at
least one forced abortion, she would automatically be entitled
to a rebuttable presumption of a well-founded fear of future
persecution. 8 U.S.C. § 1101(a)(42)(B); 8 C.F.R. § 1208.13(a)–
(b); Zheng, 409 F.3d at 809.
Xiang’s first alleged forced abortion in 1994 was mentioned
in her application, the medical record she provided, and in
her husband’s letter. Although the IJ discussed these exhibits
and their contents, the IJ was silent on whether she found that
Xiang’s first forced abortion actually occurred. The IJ found
that the testimony about the two other abortions impaired her
credibility. The IJ discussed the discrepancies between the de-
tails of the first abortion that Xiang and her husband provide,
without providing a finding of whether this first abortion ac-
tually occurred.
8 No. 16-2189
During oral argument, counsel for the government con-
ceded that the IJ made no determination with respect to
whether Xiang had been forced to abort a pregnancy. The
government also conceded that a finding of at least one forced
abortion would have entitled Xiang to a presumption of past
persecution.
Because that finding has not been made, or is not clearly
stated, we remand for a finding of whether Xiang had at least
one forced abortion and then, depending on the finding, the
appropriate analysis to follow. Accordingly, we vacate the IJ’s
decision, and remand to the BIA for further proceedings con-
sistent with this opinion.