Zhu, Hao v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3186
HAO ZHU,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A78-289-252.
____________
ARGUED FEBRUARY 21, 2006—DECIDED SEPTEMBER 29, 2006
____________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Hao Zhu, a citizen of the People’s
Republic of China, appeals the denial of his request for
asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We deny Zhu’s peti-
tion for review.
I. Background
The government commenced removal proceedings against
Zhu after he attempted to enter the United States at
Chicago’s O’Hare International Airport on September 16,
2000. At a January 14, 2003 hearing, Zhu submitted an
application for asylum, a request for withholding of removal
2 No. 05-3186
under the Immigration and Nationality Act (INA), and a
request for deferral of removal under the CAT. Zhu indi-
cated in his I-589 form that his asylum request was based
on political opinion.
Although the immigration judge (IJ) did not credit
portions of Zhu’s testimony, he stated that “on aspects
related to his relationship with his girlfriend, Yun Dong,
[Zhu’s testimony] should be full[y] credited.” Because of the
IJ’s credibility determination, the facts are undisputed. Zhu
impregnated Dong in early 2000. On April 7, he admitted to
school officials that he was responsible for her pregnancy.
When the family planning commission ordered Dong to
appear at the hospital on April 8, she decided to travel to
Shan Ming City to hide. That day, family planning officials
came to Zhu’s home looking for Dong. They kicked and
struck Zhu with fists in an attempt to bring him to the
police station. Zhu also was hit on the head with a brick, an
injury that required seven stitches. When Zhu started
bleeding, the officials asked him to turn himself in after
seeking treatment. They did not detain him. Zhu later
traveled to Shan Ming City to find Dong, who, unbeknownst
to him, had already returned home, been discovered, and
forced to abort the pregnancy. After returning home and
speaking with Dong, Zhu decided to leave for the United
States. Upon his arrival at O’Hare, he stated that he left
China because of the coercive birth control policy. He also
stated that he would possibly be jailed if he returned.
The IJ ruled that Zhu failed to establish either past
persecution or a well-founded fear of future persecution,
and denied his request for asylum, withholding, and
deferral of removal. After the BIA affirmed the IJ’s decision,
Zhu petitioned for review.
II. Discussion
When the BIA summarily affirms, we review the IJ’s
decision. Nakibuka v. Gonzales, 421 F.3d 473, 476 (7th Cir.
No. 05-3186 3
2005). We review the BIA’s factual determinations under
the highly deferential substantial evidence standard.
Dandan v. Ashcroft, 339 F.3d 567, 572 (7th Cir. 2003). We
will not grant the petition for review unless the petitioner
demonstrates that “the evidence not only supports [reversal
of the BIA’s decision], but compels it.” Liu v. Ashcroft, 380
F.3d 307, 312 (7th Cir. 2004) (quoting I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992) (emphasis in origi-
nal)).
A. Asylum
To establish eligibility for asylum, an applicant must
demonstrate that she is a “refugee” within the meaning of
the INA by proving that she was persecuted in the past or
has a well-founded fear of future persecution on account of
her race, religion, nationality, membership in a social
group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A);
Liu, 380 F.3d at 312. The applicant bears the burden of
demonstrating persecution. See 8 U.S.C. § 1158(b)(1);
8 C.F.R. § 208.13(a). We have previously defined persecu-
tion as “punishment or the infliction of harm for political,
religious, or other reasons that this country does not
recognize as legitimate.” Nakibuka, 421 F.3d at 476 (citing
Liu, 380 F.3d at 312). Although an asylum applicant need
not show that her life or freedom were threatened, the harm
suffered must rise above the level of “mere harassment” and
result from more than unpleasant or even dangerous
conditions in her home country. Id.
1. Past Persecution
Zhu first claims that he suffered past persecution, in the
form of a beating by family planning officials, on account of
his resistance to China’s family planning policies. Although
the IJ credited Zhu’s testimony regarding his mistreatment,
4 No. 05-3186
he determined that the facts did not warrant a finding of
past persecution. The testimony reveals that the officials
beat Zhu on this one occasion alone. Past persecution may
be demonstrated by a single episode of physical abuse, if it
is severe enough. Dandan, 339 F.3d at 573. Zhu’s beating
required medical attention and, he claims, caused an injury
that is comparable to other allegations of serious and
specific physical abuse which we have found to constitute
past persecution. While a cut requiring seven stitches is
doubtless a substantial injury, however, we must consider
all of the circumstances of the incident in specific detail, for
“it is the details that reveal the severity of” the abuse at
issue. Liu, 380 F.3d at 313. A thorough review of the
relevant case law reveals that physical injury serious
enough to compel a finding of past persecution is typically
accompanied by one or more additional factors that are not
present here.
For instance, we found that the facts compelled a finding
of past persecution where a severe beating resulted in the
petitioner’s miscarriage, but that petitioner was also
physically assaulted on two other occasions, detained twice,
and threatened with sexual assault once. See Vladimirova
v. Ashcroft, 377 F.3d 690, 692 (7th Cir. 2004). The evidence
likewise compelled reversal where the petitioner’s face was
cut with a razor, but that petitioner was beaten on four
separate occasions over the course of two months and was
forced to watch his wife being raped. See Bace v. Ashcroft,
352 F.3d 1133, 1138 (7th Cir. 2003). We remanded to the
BIA on the question of past persecution where a petitioner’s
beating resulted in the loss of two teeth, but the petitioner
was also detained and handcuffed to a radiator for two
weeks in a cell with only enough room to stand, deprived of
sufficient food and water, and detained and questioned on
a separate occasion. See Asani v. I.N.S., 154 F.3d 719, 723
(7th Cir. 1998). Lastly, we held that the evidence compelled
reversal where the petitioner sustained injuries requiring
No. 05-3186 5
three days of medical care; the petitioner was also detained
for two weeks, beaten daily, given only minimal food and
water, and had salt literally rubbed into his wounds. See
Soumahoro v. Gonzales, 415 F.3d 732, 737-38 (7th Cir.
2005). In each of these cases, then, there were further
incidents of abuse, such as detention, repeated beatings,
and other humiliating or harmful acts beyond the resulting
physical injury. Zhu endured only the single beating, was
never detained, and was never subjected to additional
abuse. Although Zhu’s physical injury is arguably as
substantial as the ones suffered in these cases, the overall
experiences endured by these petitioners were at once both
more prolonged and more severe than that which Zhu
encountered. To be clear, we by no means seek to minimize
Zhu’s ordeal; we endeavor only to illuminate the distinc-
tions essential to ruling on such a fact-specific determina-
tion.
In another group of cases, we have reviewed the BIA’s
analysis of the petitioner’s single episode of physical abuse.
First, we upheld the BIA’s finding of past persecution where
the petitioner suffered a bruised face and broken finger
from a single Christmas Eve beating. Vaduva v. I.N.S., 131
F.3d 689, 690 (7th Cir. 1997). Although the Christmas Eve
beating alone supported the BIA’s finding, we incidentally
noted that Vaduva was beaten on another occasion and
endured “harassing telephone calls, warnings, and at least
one interrogation.” Id. Vaduva also differs from the present
matter in its procedural posture; there, we upheld the BIA’s
finding of past persecution as supported by substantial
evidence, whereas here we are asked to reverse the BIA and
hold that the evidence compels such a finding. Id. Under
the substantial evidence standard of review, we reverse
“only if ‘no reasonable fact-finder could fail to find’ that [the
petitioner] had suffered from past persecution.” Oforji v.
Ashcroft, 354 F.3d 609, 613 (7th Cir. 2003) (quoting Georgis
v. Ashcroft, 328 F.3d 962, 967-68 (7th Cir. 2003)).
6 No. 05-3186
In a second case involving “a single episode of detention
or physical abuse,” we upheld the BIA’s finding of no past
persecution where the petitioner was beaten until his
face was swollen and was detained for three days without
food. See Dandan, 339 F.3d at 571. In so ruling, we noted
that Dandan did not present the specifics of his injury
that would “indicate the severity of the beating and support
its claim to be considered persecution.” Id. at 574. We
distinguished Asani, where the petitioner lost two teeth,
and Vaduva, where the petitioner suffered a bruised face
and broken finger. See id. Although the specific nature of
Zhu’s injury, a cut requiring seven stitches, would seem to
differentiate his case from Dandan, we also noted that such
specifics are not “the sine qua non of persecution.” Id. The
result, moreover, rested equally on the fact of Dandan’s
single detention; we noted that “[a]lthough the frequency
issue is not dispositive, it does figure significantly in the
analysis.” Id. at 573. This factor militates against Zhu’s
position, for he encountered the authorities but once.
In again upholding the BIA’s finding of no past persecu-
tion, we emphasized that the petitioner had to endure only
“a singular event” of pushing and hair-pulling, even though
she was detained for two days, interrogated, and had her
apartment ransacked. See Liu, 380 F.3d at 313. In both Liu
and Dandan, then, we upheld the BIA’s finding of no past
persecution based in part on the fact that the petitioner,
like Zhu, encountered only a single instance of abuse. The
severity and specificity of the injury Zhu describes, how-
ever, is more on the order of the petitioner’s injury in
Vaduva. Another recent case helps to illustrate these
countervailing factors; in it we upheld the BIA’s decision
that no past persecution resulted from an unspecified injury
to the petitioner’s hands, even though the police interro-
gated him three times, detained him for twenty-four hours,
harassed him for money, and threatened to kill him. Prela
v. Ashcroft, 394 F.3d 515, 517-18 (7th Cir. 2005). Although
the injury Zhu describes is more serious and specific than
No. 05-3186 7
the injury suffered in Prela, his ordeal on the whole is less
serious in that he was never detained and never endured
additional humiliating or harmful official action (such as
the repeated encounters with, and threat from, the police).
His injury weighs in favor of a finding of persecution, but is
without the typical accompanying factors that we have
previously deemed significant.
In short, none of our past cases is precisely on point. All
in all, though, we find that the evidence of this isolated
beating does not compel a finding of past persecution.
Essential to this ruling is our understanding of the deferen-
tial nature of substantial evidence review. See Prela, 394
F.3d at 518; Liu, 380 F.3d at 313-14; Dandan, 339 F.3d at
573-74 (describing substantial evidence, in the context of
reversal, as “a high standard and one that is properly
difficult to meet without powerful and moving evidence”).
While the officials’ treatment of Zhu in China was undeni-
ably deplorable, substantial evidence supports the BIA’s
determination.
Zhu next argues that he suffered past persecution because
his girlfriend Dong was forced to have an abortion. The
definition of “refugee” was amended to provide that:
a person who has been forced to abort a pregnancy or to
undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a
procedure or for other resistance to a coercive popula-
tion control program, shall be deemed to have been
persecuted on account of political opinion.
8 U.S.C. § 1101(a)(42)(B). The BIA has previously inter-
preted this language so that “past persecution of one spouse
can be established by coerced abortion or sterilization of the
other spouse.” Matter of C-Y-Z-, 21 I. & N. Dec. 915, 917
(BIA 1997). The IJ held that Zhu’s status as the boyfriend
of a woman who was forced to abort her pregnancy did not
entitle him to a finding of past persecution under the
amendment. This legal determination is subject to de novo
8 No. 05-3186
review. Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir.
2003).
We have interpreted the language of the amendment as
affording protection to spouses in cases “[w]here a tradi-
tional marriage ceremony has taken place, but is not
recognized by the Chinese government because of the age
restrictions in the population control measures.” See Zhang
v. Gonzales, 434 F.3d 993, 999 (7th Cir. 2006). Zhu cannot
claim this protection for himself, however, because he and
Dong engaged in no marriage ceremony; they were simply
boyfriend and girlfriend. There was not even a suggestion
that they had planned to wed. A case that we recently
decided controls. See Chen v. Gonzales, No. 04-1126, 2006
WL 2256981 (7th Cir. Aug. 8, 2006). We, like other circuits,
have declined to expand the definition of “refugee” to
include the boyfriends of women who are forced to abort a
pregnancy. See id. at *4; see also Zhang v. Ashcroft, 395
F.3d 531, 532 (5th Cir. 2004); Chen v. Ashcroft, 381 F.3d
221, 227-29 (3d Cir. 2004). Zhu cannot demonstrate past
persecution on this basis.
2. Well-Founded Fear of Future Persecution
Without a finding of past persecution, a person seeking
asylum must prove that she genuinely fears she will be
persecuted based on a protected ground if returned to her
native country, and that her fears are objectively reason-
able. Liu, 380 F.3d at 312 (citing I.N.S. v. Cardoza-Fonseca,
480 U.S. 421, 430-31 (1987)). In his brief, however, Zhu does
not claim that he has an independent fear of persecution,
but rather relies completely on the presumption that arises
from a demonstration of past persecution. See 8 C.F.R.
§ 208.13(b)(1); Dandan, 339 F.3d at 573. He cannot avail
himself of this presumption, however, because we upheld
the BIA’s finding that he suffered no past persecution.
No. 05-3186 9
We additionally note the IJ’s correct assertion that the
likelihood of Zhu’s persecution upon return to China was
quite minimal, given the fact that Dong was already forced
to abort her pregnancy. When questioned upon his arrival
at O’Hare, Zhu stated that he would possibly be jailed if
he returned to China. Such an indeterminate suggestion,
however, cannot qualify as objectively reasonable. See Borca
v. I.N.S., 77 F.3d 210, 214 (7th Cir. 1996) (to establish
reasonableness, the “petitioner must present specific,
detailed facts showing a good reason to fear that he or she
will be singled out for persecution”). Zhu’s fear of possible
future arrest seems strange given the officials’ decision not
to detain him on April 8. In fact, Zhu remained in China
until September and was never detained. It is more reason-
able to presume that persecution intended to coerce adher-
ence to the family practice policies would cease after the
forced abortion was carried out. Zhu fails to demonstrate a
well-founded fear of future persecution.
B. Withholding and Deferral of Removal
Finally, because Zhu has not met the lesser burden of
proof required to establish eligibility for asylum, we decline
to consider his claims for withholding of removal under the
INA and deferral of removal under the CAT, both of which
entail a higher standard of proof. See Ahmed, 348 F.3d at
619.
III. Conclusion
For the foregoing reasons, we DENY the petition for
review.
10 No. 05-3186
ROVNER, Circuit Judge, dissenting. My colleagues have
written a measured decision in response to a difficult
recurring asylum problem. The majority’s opinion, however,
views Zhu’s claims piecemeal and concludes that he has not
faced persecution. If the whole of his claims are considered,
however, the evidence compels a finding of past persecution.
For this reason, I dissent.
There is no dispute, of course, that Zhu bases his asylum
claim on injuries he suffered as a result of his political
beliefs. Opposing and resisting China’s coercive popula-
tion control policy and encouraging others to resist conform-
ing is precisely the type of political opinion that our asylum
laws were written to protect. See 8 U.S.C. § 1101(a)(42)(B).
In the case of pregnant women who have defied Chinese
authority by reproducing, Chinese authorities might
respond to their opposition by subjecting the women to
involuntary abortions or sterilization. U.S. Department of
State Country Reports on Human Rights Practices-2003,
China, February 25, 2004, p. 12, 29 (hereinafter “Country
Report”) (R. at 182, 198). For their male partners who voice
or encourage opposition, the punishment varies. They may
be arrested, fined, sterilized, interrogated, denied employ-
ment, government benefits, or property, or subject to any
number of discriminatory acts. Country Report, p.12-13 (R.
at 181-182). Their female partners might also face abortion
or sterilization procedures in response to their resistance.
Zhu resisted China’s coercive population control policy
in two ways. First, Zhu and his girlfriend, Yun Dong, failed
to abide by the government’s request that Yun Dong
terminate her pregnancy. Second, Zhu abetted Yun Dong in
her efforts to hide and refused to cooperate with the authori-
ties’ efforts to find her. In response to Zhu’s first act of
resistance, government officials came to Zhu’s house to
arrest and detain him in hopes of forcing Yun Dong out of
hiding. When Zhu resisted arrest, the officials kicked and
No. 05-3186 11
beat him, carrying him into the street where they hit him
on the head with a brick causing a head injury requiring
seven stitches.
Resolution of this matter should be straight forward.
8 U.S.C. § 1101(a)(42)(B) declares that:
a person who has been forced to abort a pregnancy or
to undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a
procedure or for other resistance to a coercive
population control program, shall be deemed to
have been persecuted on account of political
opinion, and a person who has a well founded fear that
he or she will be forced to undergo such a procedure or
subject to persecution for such failure, refusal, or
resistance shall be deemed to have a well founded fear
of persecution on account of political opinion.
8 U.S.C. § 1101(a)(42)(B) (emphasis added). Government
authorities beat and injured Zhu based on his “resistance to
a coercive population control program.” The only remaining
question is whether Zhu’s injuries were sufficient to
constitute persecution.
As the majority correctly points out, a single episode of
physical abuse can be sufficient to sustain a claim of past
persecution, if it is severe enough. Asani v. INS, 154 F.3d
719, 723 (7th Cir. 1998), Vaduva v. INS, 131 F.3d 689, 690
(7th Cir. 1997). The majority concedes that Zhu’s head
injury, which required seven stitches, is a serious one but
concludes that although “[h]is injury weighs in favor of a
finding of past persecution, [it] is without the typical
accompanying factors that we have previously deemed
significant.” Majority opinion at 7. The majority points
out that a “physical injury serious enough to compel a
finding of past persecution is typically accompanied by one
or more additional factors that are not present here.” Id. at
12 No. 05-3186
4. Zhu’s beating, however, was accompanied by an addi-
tional factor—the forced abortion of his and Yun Dong’s
fetus.
The majority opinion errs by bifurcating Zhu’s claim
into discreet parts. First, it looks at Zhu’s claim of physical
abuse and concludes that the single instance of abuse
was, by itself, insufficient to support a claim of persecution.
Then, it looks to see whether Zhu’s status as the non-
marital partner of a woman forced to abort a pregnancy
entitles him, in and of itself, to an automatic finding of past
persecution under 8 U.S.C. § 1101(a)(42)(B). Even were I to
agree with the majority that, as a matter of law, only
husbands and not unmarried partners are automatically
deemed to have been persecuted under § 1101(a)(42)(B),
neither this court nor the BIA can ignore the fact of a forced
abortion when considering the whole of the circumstances
surrounding a particular claim of persecution. In other
words, the forced abortion inflicted upon Zhu’s partner may
not be a fact that entitles Zhu to a per se presumption of
past persecution (a question I will turn to momentarily), but
neither can it be ignored as though it were entirely unre-
lated to the persecution at issue. The majority thought
Zhu’s head injury would have been serious enough to
compel a finding of past persecution only if it had been
accompanied by additional factors, but then ignored the
other factors. The authorities did not simply beat Zhu on
the head with a brick causing an injury requiring seven
stitches. They came to his house in search of his girlfriend,
they kicked and punched him, and, most significantly, they
aborted his and Yun Dong’s fetus, depriving him of the
opportunity to parent a child that he and Yun Dong had
jointly decided to bring into the world. It seems clear to me
that the evidence, when properly viewed as a whole,
compels a finding of past persecution, independent of Zhu’s
relationship to Yun Dong. See INS v. Elias-Zacarias, 502
U.S. 478, 481 n.1 (1992).
No. 05-3186 13
This should, in and of itself, resolve the matter for Mr.
Zhu, but the majority’s discussion of 8 U.S.C.
§1101(a)(42)(B) and its application to non-spouses warrants
further thought. As the majority points out, in 1997 the BIA
construed this section to provide that the forced abortion or
sterilization of one spouse is an act of persecution against
the other spouse and that the spouses of those directly
victimized are eligible for asylum in this country. In re C-Y-
Z, 21 I. & N. Dec. 915, 919 (BIA 1997). Interestingly, this
application applies to spouses regardless of whether that
spouse independently resists or opposes the coercive
population control program. A spouse who sits idly by or
even supports the termination of his wife’s pregnancy
nevertheless gets the protection of the statute. The BIA did
not offer its rationale for extending the protection to
spouses, and despite several years of prodding by the
Second Circuit, still has failed to do so. See Gui Ci Pan v.
U.S. Attorney Gen., 449 F.3d 408, 415 (2d Cir. 2006).
Without such knowledge, it is difficult to know whether
there is a rational basis for granting a presumption of past
persecution to spouses but not to other men who impregnate
women upon whom government authorities force abortions.
To support the proposition that the presumption of past
persecution extends only to the husband of a woman who
has been forced to have an abortion, the majority relies,
in part, on our holding in Chen v. Gonzales, 457 F.3d 670(7th Cir. 2006). The Chen decision did indeed “decline to
extend the definition of ‘refugee’ to reach boyfriends” where
there has been no extra-governmental marriage ceremony.
Id. at 674. The holding in Chen, although not directly in
conflict with any prior circuit decision, leaves the circuit law
on this issue in an odd state of affairs. Eight months before
our decision in Chen, we granted asylum to Junshao Zhang.
Zhang v. Gonzales, 434 F.3d 993 (7th Cir. 2006). Zhang and
his wife had a traditional Chinese wedding ceremony at
home, but never officially registered the marriage because
14 No. 05-3186
neither had reached the legal age for marriage in China. Id.
at 995. We held that “[w]here a traditional marriage
ceremony has taken place, but is not recognized by the
Chinese government because of the age restrictions in the
population control measures, that person nevertheless
qualifies as a spouse for purposes of asylum.” Id. at 999. We
reasoned that to hold otherwise would create a Catch-22.
Zhang’s asylum claim was based on China’s enforce-
ment of its population control policy, part of which
includes a minimum age requirement for marriages,
and a minimum age for having children. The forcible
abortion in this case occurred precisely because Zhang
and his wife married and became pregnant prior to
those minimum ages. The marriage is not legal in
China because of the population control policy.
Id.Despite this reasoning in Zhang, in Chen we declined to
extend the protections of the asylum law to a man in
significantly similar circumstances. Chen, 457 F.3d at 675.
Yaun Rong Chen, like Zhang, attempted to register for a
marriage license, and like Zhang, the authorities denied
him the license because he and his partner, Li Ping, were
too young to be legally married. Id. at 672. Unlike Zhang,
however, who responded to the license denial by having
a non-sanctioned wedding ceremony, Chen and Li Ping
opted to co-habitate. Id. As with Zhang’s partner, Li Ping
subsequently became pregnant. Chen’s efforts to marry did
not end there. He tried once again to become Li Ping’s
lawful husband by applying for a marriage license a sec-
ond time in light of Li Ping’s pregnancy. Id. at 672. Instead
of issuing the license, the town government sent a letter
demanding that Li Ping “voluntarily” submit to an abortion.
Id. In just a matter of days, population control officials
found Li Ping and took her to a hospital to terminate her
pregnancy. Id. Despite Chen’s two failed attempts at
No. 05-3186 15
obtaining a marriage license, his co-habitation with Li Ping,
and his efforts, in concert with Li Ping, to start a family,
this circuit declared that Chen was merely a boyfriend
and declined to extend to him the presumptions of
§ 1101(a)(42)(B). Id. at 674.
In short Chen and Zhang together, lead to an odd distinc-
tion. Men who apply for a marriage license, are denied, and
enter into a traditional common law marriage in defiance of
China’s laws can claim the protections of § 1101(a)(42)(B).
Men who apply for a marriage license, are denied, heed the
law of the land and merely cohabitate, cannot. The latter
holding ignores the rationale of Zhang which recognized
that it was China’s oppressive population control measure
that prevented Zhang from getting married and thus being
able to take advantage of the protections of § 1101(a)(42)(B)
in the first place. This is the Catch-22 to which we referred
in Zhang. See also Ma v. Ashcroft, 361 F.3d 553, 559 (9th
Cir. 2004) (“[t]he BIA’s refusal to grant asylum to an
individual who cannot register his marriage with the
Chinese government on account of a law promulgated as
part of its coercive population control policy, a policy
deemed by Congress to be oppressive and prosecutory,
contravenes the statute and leads to absurd and wholly
unacceptable results.”) In short, in Zhang, Chen, Ma and
the instant case, a woman was forced to terminate a
pregnancy solely because she was not married, and the
reason she was not married was because of China’s restric-
tive population control program.
We are treading, I fear, on indefensible ground, by relying
on the persecuting country to define the parameters of a
legitimate marriage. Suppose, for example, two men appear
before an immigration judge in separate cases and claim
that government officials forced their female partners to
abort a pregnancy. The cases are identical in all respects
except in the first case the couple married under the official
laws of the country. In the second case, the couple applied
16 No. 05-3186
for a marriage license but was denied because the country
in which the couple resided prohibits marriages between
those who are black (as is the husband) and those who are
white (as is the wife). I could, of course, paint a similar
scenario replacing race with religion. In fact, in Qu v.
Gonzales, 399 F.3d 1195 (9th Cir. 2005), Qu and his wife
were denied a birth permit because Qu’s family was affili-
ated with counter-revolutionary elements who adhered to
Christian beliefs. Id. at 1197. It is likely that Chinese
officials have denied marriage licenses to other couples
based on a family history of unpopular political activity.
These are precisely the sorts of restrictions on basic human
rights that this country’s asylum laws were meant to
protect.
The BIA need not extend asylum to every man who has
impregnated a woman who was later forced to terminate a
pregnancy, but I would not draw the line so solidly between
married and not married. The important inquiry, it seems,
ought to be the nature of the relationship between the
asylum applicant and the woman who has been forced to
terminate her pregnancy. See Ma, 361 F.3d at 557(“[w]hether or not the persecuting country, China, would
decline to recognize the marriage on technical grounds . . .
has little, if anything, to do with [an] asylum application.”)
Id. In short, the competing goals of our asylum laws—to
harbor those in need of asylum while weeding out illegiti-
mate claims—can best be met in cases involving § 1101
(a)(42)(B) by making the following inquiry: is the couple at
issue involved in a spouse-like relationship where both
parties have demonstrated an intent to enter into and
sustain a long-term partnership for the purpose of raising
a child together, and but for the persecuting country’s
restrictive population control measures, the couple would
have married. In this case, Zhu testified that he did not
marry his partner, Yun Dong, because both he and Dong
were too young to do so under Chinese law. (R. at 127-128).
No. 05-3186 17
He did vow to support the child and, along with his parents,
help raise the child, (R. at 125, 128), and therefore demon-
strated a commitment to establishing a “family” as best as
he could. The parents of the two teens also agreed together
that they would attempt to keep and help raise the child.
(R. at 105-06, 124-25). This is probably sufficient to estab-
lish the type of commitment I describe, but in any event it
is a factual inquiry that ought to be made on a case-by-case
basis.
The government argues that a bright line rule advances
the agency’s interest in weeding out fraudulent claims.
Such an argument is appealing but not entirely satis-
fying. Many people flee persecution without packing in their
bags documentary evidence of the persecution. Gjerazi v.
Gonzales, 435 F.3d 800, 809 (7th Cir. 2006). Many asylum
applicants likely lack proof of a state sanctioned marriage,
and even fewer have proof of engaging in a “traditional
marriage ceremony.” Those who do have such proof are
unlikely to have documentation of a forced abortion. The
agency has indeed drawn a line, but whether it has any
relationship to ferreting out illegitimate asylum claims is
speculative at best.
In sum, putting aside the application of §1101(a)(42)(B) to
unmarried partners for a moment, I would find that Zhu
suffered past persecution because he was himself perse-
cuted for resisting China’s coercive population control
program. Furthermore, because Zhu adamantly opposes the
coercive birth control policies of China, he has a reasonable
fear of future persecution should he return. The majority
reasons that because Zhu’s partner has already been forced
to abort her pregnancy, Zhu is unlikely to be subject to
further persecution. Majority opinion at 9. The majority
misunderstands the nature of Zhu’s persecution. The
government authorities persecuted Zhu because of his
opposition and resistance to China’s oppressive birth control
policies. There is no evidence that he has changed his
18 No. 05-3186
beliefs. To the contrary, one would imagine that Zhu’s
personal experience has further fanned the fires of his
opposition. Furthermore, Zhu is still subject to all of China’s
population control measures including a limit on the
number of children, further forced abortions, and underage
marriage regulations should he choose to marry a woman
younger than the limit set by Chinese authorities. See
Zhang, 434 F.3d at 1002. Moreover, it would be convoluted
indeed “to allow the act of persecution itself to constitute
the change in circumstances that would result in the denial
of asylum.” Id. at 1001. We should not penalize the perse-
cuted simply because a persecutor has successfully over-
come one particular act of resistance.
That alone should be sufficient for a finding of fear of
future persecution, but both this court and the BIA have
noted that a forced abortion creates ongoing suffering that
also suffices for a finding of a well-founded fear of future
persecution. Zhang, 434 F.3d at 1001-02; In re Y-T-L, 23
I. & N. Dec. 601, 607 (BIA 2003). The BIA has specifically
held that the fact that an asylum applicant (or the wife of
an asylum applicant) has been permanently sterilized and
therefore cannot be persecuted in this manner again, cannot
constitute a change of circumstances for purposes of
determining “fear of future persecution.” In re Y-T-L, 23 I.
& N. Dec. at 607. Sterilization is a “permanent and continu-
ing act of persecution that has deprived a couple of the
natural fruits of conjugal life and the society and comfort of
the child or children that might eventually have been born
to them.” Id. The BIA noted that this reasoning held even
more sway in the case of a forced abortion where the
persecution could be repeated with future pregnancies. Id.
The forced abortion deprived Zhu of the opportunity that
the fetus presented—to someday parent that child and to
realize the family that he and Yun Dong together desired
and agreed to create. Zhang, 434 F.3d at 1001. The effect of
that loss is ongoing and permanent. See, e.g., Qu, 399 F.3d
No. 05-3186 19
at 1202, n.8 (forced abortion causes irremediable and
ongoing suffering of being permanently denied the potential
for parenthood).
In response to Zhu’s fear of future persecution, the
government’s sole argument is that Zhu could avoid punish-
ment from his former local population control officials by
relocating to another region within China. Such a life on the
run might successfully prevent him from being arrested
again (although if the government officials were serious
about catching him, he might expose himself to trouble
merely by registering to work and by paying taxes), but it
certainly would not protect him from persecution for future
acts in defiance of the population control policies. Although
enforced erratically in various portions of the country, the
policy is a national one that Zhu could not escape by
relocating within the country. See Country Report, pp. 12-13
(R. at 181-182). Furthermore, “the fact that a person might
avoid persecution through concealment of the activity that
places her at risk of being persecuted is in no wise inconsis-
tent with her having a well-founded fear of persecution.” Iao
v. Gonzales, 400 F.3d 530, 532 (7th Cir. 2005). We cannot
require Zhu to avoid persecution by concealing or altering
his strongly held political beliefs.
Chinese authorities persecuted Zhu for his beliefs in the
past, and because he has an objectively reasonable fear
of future persecution should he return, I would grant the
petition for review and hold that Zhu is eligible for asylum.
20 No. 05-3186
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-29-06