Zhang v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUE YUN ZHANG, 
Petitioner, No. 01-71623
v.
 Agency No.
A77-297-144
ALBERTO GONZALES, United States
Attorney General,* OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 6, 2002—San Francisco, California
Submission withdrawn December 18, 2002**
Resubmitted May 19, 2005
Filed May 26, 2005
Before: Robert E. Cowen,*** Michael Daly Hawkins, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General for the United States, pursuant to Fed. R. App. P.
43(c)(2).
**On December 18, 2002, we withdrew this appeal from submission
pending consideration of Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004) (en
banc).
***The Honorable Robert E. Cowen, Senior United States Circuit
Judge for the Third Circuit, sitting by designation.
5753
5756 ZHANG v. GONZALES
COUNSEL
Peter K. Huston, Patricia Bonheyo (argued), Randall T. Kim,
Elisa Lee, Latham & Watkins, San Francisco, California, for
the petitioner.
ZHANG v. GONZALES 5757
Paul Fiorino, Richard M. Evans, Michael J. Dougherty,
Nancy Friedman (argued), Office of Immigration Litigation,
Department of Justice, Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
Xue Yun Zhang, a Chinese citizen, arrived in the United
States seeking asylum, withholding of removal, and protec-
tion under the Convention Against Torture. The Immigration
Judge (“IJ”) denied relief, and the Board of Immigration
Appeals (“BIA”) dismissed the appeal. Ms. Zhang’s petition
for review presents a question of first impression in this court:
is a child of a parent who was forcibly sterilized automatically
eligible for asylum under 8 U.S.C. § 1101(a)(42)(B)? We hold
that she is not.
To be eligible for asylum or withholding of removal, Ms.
Zhang must demonstrate that she suffered past persecution or
has a well-founded fear of future persecution on account of a
protected ground. The BIA determined that Ms. Zhang did not
suffer persecution and that she does not have a well-founded
fear of future persecution upon returning to China. We hold
that the BIA’s determination is not supported by substantial
evidence. We therefore grant her petition for review and
remand for further proceedings consistent with this opinion.
I. Background
Xue Yun Zhang was fourteen years old in April 2000 when
she left China for the United States. Because neither the IJ nor
the BIA1 made a negative credibility finding, we accept Ms.
1
As of March 1, 2003, the Immigration and Naturalization Service
(“INS”) ceased to exist and most of its functions were transferred to the
5758 ZHANG v. GONZALES
Zhang’s testimony before the IJ as true. Lopez-Alvarado v.
Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004). We take the fol-
lowing facts from her testimony and asylum application.
Ms. Zhang is the oldest of three children in her family. She
was born in Changla City, China on September 16, 1985. Two
years later, Ms. Zhang’s parents had a second girl. The gov-
ernment permitted two children per family in the rural village
where the Zhang family lives, but Ms. Zhang’s parents
decided to have a third child. On January 8, 1992, Ms.
Zhang’s brother was born. The family successfully hid the
third child from authorities for six years. His existence
became known to officials in November 1999, when Ms.
Zhang’s parents decided to enroll their son in school. As
required by law, Ms. Zhang’s parents reported the boy’s birth
to local officials and placed his name in the family registry.
After learning that the Zhang family had more children
than allowed, government officials ordered Mr. Zhang to be
sterilized. On April 2, 2000, several officials from the local
birth planning bureau came to the Zhang family home early
in the morning. The officials took Mr. Zhang away by car to
be sterilized. Describing this incident, Ms. Zhang testified,
“My mother was crying, and our sisters and brothers were
crying, and we did not want my father to be taken away to be
forced to terminate his reproduc[tive] ability.” After the oper-
ation, Ms. Zhang’s father was physically weakened and he
was unable to resume work in his previous occupations —
housing construction and agriculture. To earn income, Ms.
Zhang’s mother began working as a babysitter for other fami-
lies’ children. Officials imposed a fine of 23,000 renminbi
Bureau of Border Security and the Bureau of Citizenship and Immigration
Services. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135. We refer to the BIA and the INS as the relevant agencies
throughout this opinion because the events described herein took place
before the transfer.
ZHANG v. GONZALES 5759
(“RMB”) — at the time, about $2,800 — on the Zhang fam-
ily. The family could not pay the fine. Officials confiscated
some of the family’s possessions and threatened to evict the
family from its home. The children were prohibited from
attending further school until the fine was paid. Ms. Zhang
was in seventh grade at the time.
According to Ms. Zhang’s asylum application, “[i]n light of
these problems, my father thought that there was no future for
me in China so when he heard of an opportunity to send me
here, he did so.” Ms. Zhang’s mother obtained a fraudulent
passport and visa, and made arrangements to smuggle Ms.
Zhang to the United States. On April 21, 2000, the Immigra-
tion and Naturalization Service (“INS”) apprehended Ms.
Zhang at Los Angeles International Airport, where she
requested asylum and withholding of removal. She told the
INS officer who took her sworn statement that she wanted “to
learn English and work here.” When asked why she left her
home country, she answered, “I want to come to study and
work.” When asked if she was afraid to return to her country,
she said that she was.
At Ms. Zhang’s hearing before the IJ, her counsel argued
that she was eligible for asylum and related relief on the the-
ory that she had experienced persecution in China as the child
of parents who had violated China’s family planning policies.
Her counsel also argued that Ms. Zhang had a well-founded
fear of future persecution because she feared that she would
be arrested, beaten, and tortured if returned to China.
The IJ denied Ms. Zhang’s application for relief. The IJ
recognized that individuals who have been forcibly sterilized,
as well as their spouses, are deemed to be refugees and are
therefore eligible for asylum. But he ruled that the children of
forcibly sterilized parents are not automatically eligible for
asylum. The IJ concluded that Ms. Zhang had not carried her
burden of showing that she, herself, had been persecuted on
account of her political opinion, nor her burden of showing
5760 ZHANG v. GONZALES
that she had a well-founded fear of future persecution. Ms.
Zhang timely appealed to the BIA, which adopted the IJ’s
decision and dismissed the appeal. This petition for review
followed. As of February 4, 2002, the INS was still holding
Ms. Zhang in detention while her case was pending. We have
since been informed by her counsel that she is no longer in
detention.
Where, as here, the BIA reviews the IJ’s opinion de novo,
we review the BIA’s decision and those portions of the IJ’s
decision adopted by the BIA. Molina-Estrada v. INS, 293
F.3d 1089, 1093 (9th Cir. 2002). We review de novo the
BIA’s legal conclusions, granting deference to its reasonable
interpretation of ambiguous statutory provisions. INS v.
Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). We review
findings of fact, including whether Ms. Zhang suffered perse-
cution or has a well-founded fear of future persecution, for
substantial evidence. Guo v. Ashcroft, 361 F.3d 1194, 1203
(9th Cir. 2004). “To reverse the BIA finding we must find that
the evidence not only supports that conclusion, but compels
it[.]” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)
(emphasis in original).
II. Discussion
A. Automatic Statutory Eligibility for Asylum
[1] To be eligible for asylum, an applicant must show that
she is a person who is “unable or unwilling” to return to her
country of origin “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A). Under 8 U.S.C. § 1101(a)(42)(B),
an individual who has been forcibly sterilized is automatically
deemed eligible for asylum. In relevant part, § 1101(a)(42)(B)
provides that
a person who has been forced to abort a pregnancy
or to undergo involuntary sterilization, or who has
ZHANG v. GONZALES 5761
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 per-
secution on account of political opinion.
As we and the BIA have construed this provision, spouses of
individuals who have been sterilized are also automatically
deemed eligible for asylum. Li v. Ashcroft, 356 F.3d 1153,
1157 (9th Cir. 2004) (en banc); Ma v. Ashcroft, 361 F.3d 553,
559 (9th Cir. 2002); In re C-Y-Z-, 21 I. & N. Dec. 915, 918
(BIA 1997).
[2] Ms. Zhang’s counsel urges us to extend automatic asy-
lum eligibility to the children of forcibly sterilized parents.
The statute, however, does not plainly indicate that such chil-
dren are deemed eligible. At most, the statute is ambiguous on
this point, as its text states that “a person who has been forced
to abort a pregnancy 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.” 8
U.S.C. § 1101(a)(42)(B) (emphasis added). The statute does
not explicitly make eligible the child of someone who has
been forcibly sterilized. When the text of the INA is ambigu-
ous, we defer to the BIA’s reasonable construction of the stat-
ute it administers. INS v. Aguirre-Aguirre, 526 U.S. 415,
424-25 (1999); Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984); Espejo v. INS,
311 F.3d 976, 979 (9th Cir. 2002). The “BIA should be
accorded Chevron deference as it gives ambiguous statutory
terms ‘concrete meaning through a process of case-by-case
adjudication[.]’ ” Aguirre-Aguirre, 526 U.S. at 425 (quoting
INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)).
5762 ZHANG v. GONZALES
We reject agency interpretations of the INA that “contra-
vene other indications of congressional intent” or that “pro-
duce absurd results.” Ma, 361 F.3d at 558 (quotation marks
and citations omitted). For example, in Ma, the BIA ruled that
the husband of a forcibly sterilized wife was not entitled to
automatic asylum eligibility because the husband and wife
were too young to officially register their marriage in China.
Id. We reversed, holding that
[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 persecu-
tory, contravenes the statute and leads to absurd and
wholly unacceptable results.
Id. at 559.
[3] In this case, the BIA held that it would not extend auto-
matic statutory eligibility to “a person, such as [Ms. Zhang],
who was not the spouse of the person forced to undergo such
a procedure.” We cannot conclude that the BIA’s interpreta-
tion of the statute is unreasonable or absurd. A person is per-
secuted when his or her spouse is sterilized because the ability
of that person to choose to have children with his or her
spouse is limited. Thus, sterilization of one spouse necessarily
persecutes the other. In contrast, sterilization of a parent does
not necessarily persecute a child, though of course in particu-
lar circumstances, it might.
[4] The BIA’s interpretation is not inconsistent with the rel-
evant legislative history. China’s population control policies
are targeted at both partners in a couple; both members of a
couple who defy population control policies may be subjected
to forced sterilization or birth control. See, e.g., Ma, 361 F.3d
at 562 (granting asylum to a man whose wife was forcibly
sterilized); Li, 356 F.3d at 1156, 1161 (granting asylum claim
ZHANG v. GONZALES 5763
of a young woman threatened with forcible sterilization, when
her boyfriend was also so threatened); He v. Ashcroft, 328
F.3d 593, 604 (9th Cir. 2003) (granting asylum to a man
whose wife was forcibly sterilized). We observed in Ma that
Congress intended to grant asylum to Chinese “ ‘couples’ per-
secuted on account of an ‘unauthorized’ pregnancy, and to
keep families together.” 361 F.3d at 559 (emphasis added)
(quoting H.R. REP. No. 104-469(I), at 174 (1996)). The legis-
lative history of the forcible sterilization amendment does not
indicate that Congress meant to define children of forcibly
sterilized parents to be per se eligible for asylum. See H.R.
REP. No. 104-469 (I), at 174.
[5] We recognize that we have previously suggested that
children of forcibly sterilized parents might be automatically
eligible for asylum. In Jie Lin v. Ashcroft, 377 F.3d 1014 (9th
Cir. 2004), we proposed that the rationale of the BIA’s deci-
sion in C-Y-Z- granting asylum to the spouses of forcibly ster-
ilized individuals could be extended to those individual’s
children. We reasoned that a child’s
parents’ deliberate flouting of state mandatory limits
on procreation has put [the child] at risk. His moth-
er’s misfortune [in being forcibly sterilized] is
deemed to be past persecution on account of political
opinion; this is in turn imputed to [the child’s] father
as a matter of law, whether or not he ha[s] ever actu-
ally expressed such an opinion or [has] experienced
such persecution directly. It is not clear that [the
child] is any less “in association” with his mother in
this respect than is his father; the doctrine of imputed
political opinion may offer no crisp method for dis-
tinguishing them.
Id. at 1031. In Lin, however, we did not — and could not —
finally decide the issue, because we were deciding an ineffec-
tive assistance of counsel claim and we were merely address-
ing whether the child-petitioner had a plausible claim for
5764 ZHANG v. GONZALES
relief. While our interpretation of the statute in Lin was plau-
sible, we were not confronted with a contrary interpretation
by the BIA. Today we are faced with such an interpretation,
and, according appropriate Chevron deference to the BIA’s
interpretation of the statute, we affirm that interpretation as
reasonable.
B. Individual Evidence of Past Persecution
[6] None of the above analysis affects the ability of a child
to establish an asylum claim without resort to the automatic
presumption we have just rejected. Any child who has experi-
enced past persecution or has established a well-founded fear
of future persecution on account of a protected ground is a
refugee within the meaning of the INA, and thus is statutorily
eligible for asylum. 8 U.S.C. § 1101(a)(42)(B); see also INS,
Guidelines for Children’s Asylum Claims (1998) (“INS
Guidelines”).
Ms. Zhang has suffered hardships as a result of her father’s
forced sterilization, including economic deprivation, the limi-
tation of her educational opportunities, and the trauma of wit-
nessing her father’s forcible removal from her home. The
questions we confront are whether she was subjected to those
hardships on account of a protected ground, and whether they
rise to the level of persecution. We review the IJ’s and the
BIA’s decision that Ms. Zhang did not suffer past persecution
under the deferential substantial evidence standard, Elias-
Zacarias, 502 U.S. at 481.
[7] The hardships Ms. Zhang suffered were “on account of”
a political opinion. The INA expressly defines “political opin-
ion” to include resistance to coercive population control mea-
sures:
[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
ZHANG v. GONZALES 5765
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 per-
secution on account of political opinion . . . .
8 U.S.C. § 1101(a)(42)(B). As we pointed out in Lin, the stat-
ute “does not say that ‘failure’ or ‘refusal’ or ‘resistance’ must
have been [the petitioner’s] own.” 377 F.3d at 1031. In this
case, it was Ms. Zhang’s parents who resisted China’s coer-
cive population control program. Their resistance, however, is
imputed to Ms. Zhang for the purposes of determining
whether she has been persecuted on account of a protected
ground. An asylum applicant is persecuted on the ground of
an imputed political opinion when the applicant’s association
with others holding that opinion (including the applicant’s
family) is the motivation for the persecution. E.g., Navas v.
INS, 217 F.3d 646, 661 (9th Cir. 2000) (“Typically, where
killings and other acts of violence are inflicted on members of
the same family by government forces, the inference that they
are connected and politically motivated is an appropriate
one.” (citations and internal quotation marks omitted)); C-Y-
Z-, 21 I. & N. Dec. at 922-23 (Rosenberg, J., concurring)
(“An individual’s . . . association with one who expressly
resists or opposes such a program, may cause such a political
opinion to be imputed to that individual.” (emphasis added)).
Here there is no doubt that the hardships Ms. Zhang suffered
were on account of her parents’ resistance to China’s popula-
tion control measures.
[8] We now turn to the question of whether the hardships
Ms. Zhang suffered rise to the level of persecution. Persecu-
tion is “the infliction of suffering or harm upon those who dif-
fer (in race, religion, or political opinion) in a way regarded
as offensive.” Kovac v. INS, 407 F.2d 102, 107 (9th Cir.
5766 ZHANG v. GONZALES
1969). “Persecution is an extreme concept that does not
include every sort of treatment our society regards as offen-
sive.” Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.
2004) (citation and internal quotation marks omitted). How-
ever, “[t]he harm a child fears or has suffered . . . may be rela-
tively less than that of an adult and still qualify as
persecution,” INS Guidelines at 19.
Ms. Zhang’s counsel argued that she had suffered three
forms of persecution: 1) economic deprivation; 2) denial of
access to education; and 3) violence directed at her father in
her presence. Since Ms. Zhang’s inability to attend school
was a consequence of her family’s inability to pay the fine,
we consider the first two theories of persecution together, as
the IJ appears to have done. We conclude that the IJ lacked
substantial evidence for concluding that the economic depri-
vation Ms. Zhang suffered (including her inability to pursue
an education) did not constitute persecution.
Our case law clearly establishes that deliberate imposition
of substantial economic disadvantage can amount to persecu-
tion. See, e.g., Baballah v. Ashcroft, 367 F.3d 1067, 1075 (9th
Cir. 2004) (Israeli Marines deliberately interfered with an
Israeli Arab’s fishing business, purposely destroyed his nets,
subjected him to discriminatory enforcement, and destroyed
his boat); Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996)
(woman opposed to Sandinista government in Nicaragua was
subjected to threats and violence against her family as well as
seizure of her family’s land, denial of ration card, and conse-
quent inability to supply her business). The test for whether
economic deprivation amounts to persecution is not well-
defined. In Gormley we explained that
it is clear that an absolute inability to support oneself
or one’s family is not required to establish eligibility
for asylum. It is equally well established, however,
that mere economic disadvantage alone does not rise
to the level of persecution. . . . Within the bounds of
ZHANG v. GONZALES 5767
this spectrum, we have advanced no definitive rule,
and none exists, except that the deprivation claimed
must be severe enough to constitute persecution.
364 F.3d at 1178 (internal citations omitted).
[9] Ms. Zhang testified that her parents’s resistance to
China’s coercive population control program caused a number
of adverse economic consequences. As a result of the forced
sterilization, her father was unable to resume work. Some of
the family’s property was confiscated and the family was
threatened with eviction. In addition, a substantial fine was
imposed which the family was unable to pay. As a result of
the family’s inability to pay the fine, Ms. Zhang was barred
from attending school. Denial of access to educational oppor-
tunities available to others on account of a protected ground
can constitute persecution. In Bucur v. INS, 109 F.3d 399 (7th
Cir. 1997), the Seventh Circuit noted that denial of access to
education on the basis of one’s ethnicity can amount to perse-
cution. Id. at 403 (“If Romania denied its Ukranian citizens
the right to higher education enjoyed by ethnic Romanians,
this would be, we imagine, a form of persecution.”).
[10] The IJ held that neither Ms. Zhang’s economic depri-
vation nor her lack of access to education constituted persecu-
tion. The IJ explained his holding as follows:
The government will not preclude the respondent
from pursuing a non-public education; in fact, would
permit her continuing public education upon the pay-
ment of the 23,000 RMB fine. If the funds were
available to pay for her to be smuggled out of China
and into the United States, then surely, such funds
were available to pay the actual fine leveled, and
avoid continued penalties in that regard.
Neither of the factual assertions relied upon by the IJ is sup-
ported by substantial evidence. There is no evidence in the
5768 ZHANG v. GONZALES
record that the Chinese government would have allowed Ms.
Zhang to pursue a non-public education, nor is there any evi-
dence that such an education was reasonably available to her.
[11] More importantly, the IJ’s conclusion that Ms.
Zhang’s family could have paid the fine since it arranged for
her passage to the United States directly contradicts the evi-
dence in the record. At Ms. Zhang’s hearing, she testified that
a relative paid for her to come to the United States. Her coun-
sel specifically asked her why her relative could not pay the
23,000 RMB fine. Ms. Zhang answered as follows:
If I can come to the United States, to continue my
education, then I can earn money to repay my rela-
tive. If my relative have paid and post the fine of
23,000 Chinese monetary unit, then I would be
unable to continue my education. I have to work to
pay the imposed under the government. At the same
time I have to work to repay to my relative.
We understand Ms. Zhang to have explained that her relative
paid for her to come to the United States because she would
be able to earn in the United States the money necessary to
repay that relative. We also understand her to have explained
that her relative would not (or could not) pay her family’s fine
because the family would not be able to repay the relative
were Ms. Zhang to have remained in China. This testimony,
which is the only relevant evidence in the record, directly
contradicts the IJ’s conclusion that “surely” the family could
secure the funds to pay the fine to avoid the associated penal-
ties.
We note that, although the government’s attorney stated his
idea of the “widely understood” range of the cost to smuggle
someone from China to the United States, there is no evidence
in the record regarding the actual cost of Ms. Zhang’s passage
to the United States. Thus, there is not substantial evidence to
support the conclusion that the cost of her travel was equal to
ZHANG v. GONZALES 5769
or greater than the amount of the fine. But even if there were
such evidence, this does not matter. As Ms. Zhang testified,
her relative was unwilling to pay the fine but willing to pay
for her to come to the United States because, once in the
United States, she could work to pay off the debt.
[12] In holding that Ms. Zhang had not been persecuted, the
IJ thus relied on two factual findings not supported by sub-
stantial evidence — that Ms. Zhang could attend a non-public
school and that her family could have arranged payment of
the fine had they wished to do so. Because the IJ erroneously
relied on these findings, we cannot find that the IJ’s holding
that Ms. Zhang was not persecuted is supported by substantial
evidence.
[13] We are not, on the record before us, compelled to
reverse the IJ’s holding at this time. That is, we do not hold,
at this juncture, that Ms. Zhang qualifies for asylum. We do
not know whether the IJ would have found that Ms. Zhang
had been persecuted had he not erroneously relied on the
assumptions that her family could pay the fine imposed and
that she had access to non-public schooling. Under these cir-
cumstances, we remand so that the IJ may make a new deter-
mination of Ms. Zhang’s eligibility for asylum. See INS v.
Ventura, 537 U.S. 12, 16 (2002) (holding, in similar circum-
stances, that a court of appeals should remand to the agency
for additional investigation or explanation). On remand, the IJ
should reconsider whether the economic deprivation Ms.
Zhang suffered on account of her parents’ resistance to
China’s population control policies constitutes persecution.
The IJ should consider the loss of property and income the
family suffered, as well as the barrier the fine posed to Ms.
Zhang’s ability to pursue an education.
As for Ms. Zhang’s father’s forcible removal and steriliza-
tion, we note that “acts of violence committed against an
applicant’s friends or family can establish well-founded fear
of persecution.” Nagoulko v. I.N.S., 333 F.3d 1012, 1017 (9th
5770 ZHANG v. GONZALES
Cir. 2003) (citing Korablina v. INS, 158 F.3d 1038, 1044 (9th
Cir. 2003)). The IJ dismissed Ms. Zhang’s assertion that the
violence against her father established a well-founded fear of
persecution by saying that
[t]he fact that [Ms. Zhang’s] parents may have suf-
fered persecution for their political opinion in this
case, is not persecution of the respondent before the
Court, nor has the Chinese government offered or
threatened to harm the respondent on any such enu-
merated grounds.
While it is relevant, the lack of specific threats against Ms.
Zhang does not constitute substantial evidence to support the
conclusion that she does not have a well-founded fear. As
Nagoulko makes clear, acts of violence against close asso-
ciates can suffice to establish a well-founded fear of persecu-
tion.
Finally, we note that on remand the IJ should not consider
the different forms of persecution that Ms. Zhang alleges in
isolation. Rather, the IJ should consider the cumulative impact
of all of the hardships to which Ms. Zhang has been subjected
in determining whether she was persecuted, or whether she
has a well-founded fear of persecution upon her return. See
Baballah, 367 F.3d at 1076 (“An applicant may suffer perse-
cution because of the cumulative impact of several incidents
even where no single incident would constitute persecution on
its own . . . . When analyzed in the aggregate, the physical
assaults and economic harassment endured by Baballah com-
pel a finding of persecution.” (citations omitted)). Thus the IJ
should consider whether the trauma Ms. Zhang suffered as a
result of her father’s forcible removal and sterilization, the
economic deprivation she experienced, and her inability to
pursue an education, when taken together, constituted perse-
cution. The IJ must also consider whether these events estab-
lish a well-founded fear of persecution when considered
alongside the punishment Ms. Zhang will likely face if
ZHANG v. GONZALES 5771
returned to China. See U.S. Department of State Country
Reports on Human Rights Practices for 2000 (China)
(released February 23, 2001), available at http://
www.state.gov/g/drl/rls/hrrpt/2000/eap/684.htm (stating that
individuals returned to China “are generally fined anywhere
between $600 and $6,000,” and that “[m]any are also sub-
jected to lengthy administrative detention or reeducation
through labor camps.”).
C. Withholding of Removal
[14] We affirm the BIA’s holding that Ms. Zhang is not eli-
gible for withholding of removal. Despite the factual errors
which undermine the IJ’s determinations regarding asylum,
the record does not reveal a basis for withholding of removal.
See Al-Harbi v. INS, 242 F.3d 882, 888-89 (9th Cir. 2001)
(explaining that the standard for withholding of removal is
“more stringent than the well-founded fear standard govern-
ing asylum”) (internal quotations and citation omitted).
III. Conclusion
We hold that a child of a forcibly sterilized parent is not
automatically eligible for asylum under 8 U.S.C.
§ 1101(a)(42)(B). However, we hold that, in this case, the IJ
lacked substantial evidence for concluding that Ms. Zhang
had not been persecuted on account of a protected ground,
and that she did not have a well-founded fear of persecution
upon return. We affirm the BIA’s decision that Ms. Zhang is
not eligible for withholding of removal. We grant the petition
for review and remand for proceedings consistent with this
opinion.
Petition for review GRANTED and case REMANDED.