Lin, Xiu Z. v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3719
XIU ZHEN LIN and JIA HUI SHI,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
Nos. A77-950-569, -570.
____________
ARGUED JUNE 10, 2008—DECIDED JULY 8, 2008
____________
Before POSNER, COFFEY, and FLAUM, Circuit Judges.
POSNER, Circuit Judge. The female petitioner and her
son (whose opposition to removal is derivative from his
mother’s and therefore need not be discussed separately)
are Chinese citizens who in 2001 were ordered removed
to China. The Board of Immigration Appeals affirmed
the order the following year. For unexplained reasons,
the order was not executed, and four and a half years
later the petitioner asked the Board to reopen the re-
moval proceeding on the ground that China was en-
2 No. 07-3719
forcing its “one child” policy more stringently than at the
time of the original proceeding; she has three children,
two born in the United States (the son born in China is the
other petitioner). The Board denied the motion to reopen,
on the ground that conditions in China had not worsened.
Congress has made persecution for “resistance to a coer-
cive population control program” a ground for asylum. 8
U.S.C. § 1101(a)(42)(B); Zheng v. Gonzales, 409 F.3d 804, 811
(7th Cir. 2005); Lin v. Ashcroft, 385 F.3d 748, 752-53 (7th Cir.
2004); Li v. INS, 453 F.3d 129, 135 (2d Cir. 2006). But unless
the policy is enforced more stringently now than when the
petitioner was ordered removed (“changed country
conditions”), she cannot reopen the removal proceeding.
8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Kebe
v. Gonzales, 473 F.3d 855, 857-58 (7th Cir. 2007); Zhao v.
Gonzales, 440 F.3d 405, 407 (7th Cir. 2006) (per curiam);
Alemu v. Mukasey, 509 F.3d 907, 910 (8th Cir. 2007).
The 2006 report of the State Department on conditions
in China states that in Fujian, the petitioner’s province,
the government “reportedly forcibly sterilized women”
who violate the “one child” policy. U.S. Dep’t of State,
China: Country Reports on Human Rights Practices—2006,
§ 1(f) (Mar. 6, 2007). This is a stronger statement than
found in the country report for 2001, the year the peti-
tioner was ordered removed; there we read that China
was “beginning to relax” enforcement of the policy in
cities and that after reports of forced abortions and steril-
izations in Fujian, officials “scaled back the intensity
of their family-planning enforcement efforts.” U.S. Dep’t
of State, China: Country Reports on Human Rights Practices—
2000, § 1(f) (Feb. 23, 2001).
A recent letter from the “Villager Committee of Xiguan
Village, Wuhang, Changle City,” the governing body of
No. 07-3719 3
the petitioner’s village, states that the village “strictly
enforces The Population and Family Planning Ordinance
in Fujian Province,” that “all citizens with two children
will be designated as a target for sterilization,” and
“although you currently reside in the United States, you are
still a citizen of the People’s Republic of China. It is known
that you have had three children. You certainly will be
subjected to sterilization procedures unless you have
become a U.S. citizen or permanent residents, or have
Master or Ph.D. degree from a U.S. university,” which
neither petitioner has. The government does not doubt the
letter’s authenticity but says that it doesn’t indicate
changed circumstances since the removal proceeding. That
is incorrect. “The Population and Family Planning Ordi-
nance in Fujian Province” is a reference to the Popula-
tion and Family Planning Regulations of Fujian Province,
first enacted in 1988 but revised in July 2002 to implement a
national law, the Population and Family Planning Law of
the People’s Republic of China, which took effect that year.
Although neither the national law nor the
Fujian regulations mention sterilizations, Article 41 of the
national law says that violators will be assessed a “social
compensation” fee, and Article 39 of the Fujian regula-
tions says that for a family with three children the
social compensation fee may exceed six times a couple’s
annual income. (Translations of both documents are
attached to the U.S. State Department’s China Profile of
Asylum Claims and Country Conditions (May 2007).) The
petitioner’s family is not wealthy. The national law and
the provincial regulations do not specify the consequence
for a person who cannot pay the fee.
The Board’s treatment of the villager committee’s letter
is the most disturbing aspect of the case. After noting
that the letter stated that the petitioner would “be sub-
jected to sterilization procedures” if she returned to her
4 No. 07-3719
village, the Board said that she “had not provided evid-
ence that the policy is implemented through physical force
or other means that would amount to persecution.”
Reading this we wondered whether the Board believes
that if the village government imposed a fine greater
than the petitioner could pay, and if as a result she
was required to undergo sterilization (which seems
implicit in the reference to “target for sterilization” and
“subjected to sterilization procedures”), the steriliza-
tion nevertheless would not amount to persecution. At
argument, the Justice Department’s lawyer said that
this was what the Board believes, while appropriately
noting his personal reservations about the soundness
of such a belief.
The implication is that if a government tells a religious
heretic we are going to fine you $1 million for your heresy
and if you cannot pay we are going to burn you at the
stake, and the heretic cannot pay and therefore is exe-
cuted, the burning of the heretic would not, in the
Board’s view, amount to persecution. We cannot imagine
that this is really the Board’s view, since in cases like
In re T-Z-, 24 I. & N. Dec. 163, 173-75 (BIA 2007), the Board
has said that “a particularly onerous fine” can amount to
persecution even if nonpayment does not subject the
victim of the persecution to physical violence. The courts
have ruled similarly. Koval v. Gonzales, 418 F.3d 798, 805
(7th Cir. 2005); Eduard v. Ashcroft, 379 F.3d 182, 187 (5th
Cir. 2004); Shan Liao v. Department of Justice, 293 F.3d 61, 70
(2d Cir. 2002); Kovac v. INS, 407 F.2d 102, 107 (9th Cir.
1969). It is even clearer that, as the Board in In re T-Z-,
supra, 24 I. & N. Dec. at 168-169, acknowledged, an eco-
nomic penalty that effectively compels a person to undergo
an abortion is a form of persecution. The courts, again,
have ruled likewise. Xiu Ling Chen v. Gonzales, 489 F.3d 861,
No. 07-3719 5
863 (7th Cir. 2007) (for the average Chinese citizen, a fine
of ten times her yearly income is “particularly onerous”
and if it were imposed the “only practical alternative
would be to avoid having more children, if necessary by
abortion or sterilization”); Zhang v. Gonzales, 408 F.3d
1239, 1247-48 (9th Cir. 2005) (child was not allowed to
attend school until parents paid a “substantial fine,” and
denial of educational opportunities can constitute persecu-
tion); Li v. Attorney General, 400 F.3d 157, 168 (3d Cir.
2005) (fine equal to 20 months’ salary can amount to
persecution); Wang v. Ashcroft, 341 F.3d 1015, 1020 (9th
Cir. 2003) (petitioner’s abortions in China were “forced,” in
part because officials threatened to impose unreasonably
high fees if she gave birth). If the Board’s view is as
represented by the government’s lawyer, and were sus-
tained, the Board would have handed to the world’s
persecutors a formula for preventing victims of persecu-
tion from obtaining asylum in the United States. All a
persecuting government would have to do would be to
impose a fine in excess of the victim’s ability to pay,
with death as the back-up punishment if the victim was
(as he would be) unable to pay the fine.
It appears that the “one child” policy with sterilization as
the sanction for violating it is enforced most vigorously
in Fujian Province, and it is possible that if the petitioner
and her son relocated to another part of China the risk of
sterilization would be small, in which event they would
not have a well-founded fear of persecution if they are
removed. 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3)(i); Agbor v.
Gonzales, 487 F.3d 499, 505 (7th Cir. 2007); Rashiah v.
Ashcroft, 388 F.3d 1126, 1132 (7th Cir. 2004); Vente v.
Gonzales, 415 F.3d 296, 303 (3d Cir. 2005); Kaiser v. Ashcroft,
390 F.3d 653, 659 (9th Cir. 2004). But the government has
not argued this point. This is puzzling in light of our
6 No. 07-3719
recent decision in Song Wang v. Keisler, 505 F.3d 615 (7th
Cir. 2007), another case from Changle in Fujian Province,
where the Board, as our opinion noted, id. at 622, said
that the petitioner could relocate to a part of China
where the “one child” policy was not enforced as harshly
as it is in Fujian.
Our opinion in Song Wang also expressed skepticism
that the threat of forcible sterilization of violators of the
policy was grave, id. at 622-24, because of evidence that
the policy is enforced mainly by monetary penalties, the
size of which was not indicated. But that was before the
government’s lawyer told us in this case that the Board
may not consider sterilization induced by inability to
pay a monetary penalty to be a form of persecution,
despite the Board’s repeated acknowledgment in other
cases that onerous monetary penalties can be persecution.
The petitioner has carried her burden of showing
changed country conditions that entitle her to reopen her
removal proceeding. The Board will therefore have to
determine the likely consequences if the petitioner (and
her son) are returned to China. This will depend on the
current policy of governmental authorities in Fujian, the
size of the monetary penalties they are likely to impose
on the petitioner, whether she is likely to be able to pay
them, if not whether she is likely to be required to under-
go sterilization, and whether she can avoid any or all
consequences of her violation of the one-child policy by
relocating to another part of China.
VACATED AND REMANDED.
USCA-02-C-0072—7-8-08