Zhongxiang Zhou v. Loretta E. Lynch , 618 F. App'x 907 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ZHONGXIANG ZHOU, No. 11-71492
Petitioner, Agency No. A088-272-454
v.
MEMORANDUM*
**
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 17, 2015
San Francisco, California
Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.**
Zhongxiang Zhou, a native and citizen of China, petitions for review of a
final order of removal from the Board of Immigration Appeals (“BIA”). The BIA
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Loretta E. Lynch is substituted for Eric H. Holder, Jr. as Attorney
General of the United States. Fed. R. App. P. 43(c)(2).
dismissed Zhou’s appeal of an Immigration Judge’s (“IJ”) denial of his
applications for asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition for review.
Zhou first contests the partial adverse credibility finding made by the IJ and
upheld by the BIA. Although the BIA found parts of Zhou’s story credible, it
discounted Zhou’s testimony that family planning officials threatened him with
forced sterilization on four different occasions, that it took him ten years of work to
raise the money required to pay the family planning fines, and that the work put
him in poor physical condition. The BIA discounted this information largely
because it did not appear in Zhou’s declaration that was filed along with his asylum
application. Zhou now contends that the IJ and the BIA erred by not considering
that, when he crafted his declaration, spouses of victims of forced abortion were
automatically granted refugee status. But during Zhou’s hearing, which occurred
two years after the law had changed, Zhou testified that his declaration was
complete and included every type of harm he had experienced in China. Under the
REAL ID Act of 2005, which governs this action, substantial evidence supports the
partial adverse credibility determination. Tamang v. Holder, 598 F.3d 1083,
1093–94 (9th Cir. 2010).
2
Zhou next alleges that the IJ and the BIA committed legal error by failing to
consider his wife’s forced abortion as proof of his persecution and resistence to
China’s family planning policies. Although applicants whose spouses have been
physically subjected to forced abortion or sterilization by a foreign government are
no longer automatically entitled to refugee status, they may qualify for asylum if
they can demonstrate: (1) refugee status based on persecution for “other resistence”
to a coercive population control program; (2) a well-founded fear of being
persecuted for other resistence to a coercive population control program; (3) that
the specific facts of the case justify asylum on grounds other than those in section
601(a), 8 U.S.C. § 1101(a)(42); or (4) that they satisfy the requirements for
derivative asylum. Jiang v. Holder, 611 F.3d 1086, 1093–94 (9th Cir. 2010).
In considering a petitioner’s claim, the court must “consider a spouse’s
forced abortion or sterilization as ‘proof’ that an applicant resisted a coercive
population control policy.” Id. at 1094. But that proof is not alone sufficient as
“an applicant must provide evidence of resistence in addition to the spouse’s forced
abortion or sterilization.” Id. Contrary to Zhou’s contentions, the BIA explicitly
acknowledged its duty to consider Zhou’s wife’s forced abortion as proof of his
past persecution. After considering this evidence, the BIA found that Zhou had not
presented sufficient substantial evidence of other resistence or past persecution
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based on other resistence. Id. at 1095 (noting that a petitioner must show
substantial evidence of further persecution beyond a spouse’s forced abortion in
support of his claims).
Zhou essentially asserts that the IJ and BIA held him to an unnecessarily
high standard by requiring him to provide proof of resistence beyond the facts that
(1) his wife was subjected to a forced abortion, and (2) he neither supported nor
acquiesced to the forced abortion. But the IJ and BIA did not err because we have
recently held that more proof of resistence is required. See He v. Holder, 749 F.3d
792 (9th Cir. 2014) (denying relief to a Chinese citizen who was fined twice the
amount as Zhou for having an additional child, whose wife later suffered a forced
abortion and sterilization, and who spent twelve years in hiding because he could
not pay the fine). Here, the credible evidence presented by Zhou shows that he
picked his wife up at the hospital after the forced abortion where he exchanged
words with the family planning official, assisted his wife in concealing a
pregnancy, and later paid a fine to the government for violating the policy by
having a third child. Although these acts show that he did not acquiesce to the
family planning policy, they do not constitute “‘overt’ and persistent defiance
required for a showing of ‘other resistence.’” Id. at 796. Moreover, although Zhou
testified that the family planning officials threatened him with arrest at the hospital,
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he was not detained and did not suffer any adverse consequences other than being
required to pay the fine. Because persecution is an “extreme concept that means
something more than . . . harassment,” Donchev v. Mukasey, 553 F.3d 1206, 1213
(9th Cir. 2009) (internal citations omitted), substantial evidence supports the BIA’s
determination that Zhou did not establish past persecution.
Finally, Zhou has not proffered any credible evidence to support a well-
founded fear of future persecution. Because a reasonable factfinder would not be
compelled to find that Zhou either resisted China’s family planning policy or
suffered persecution, the petition is denied.
PETITION DENIED.
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FILED
Zhou v. Lynch, No. 11-71492 JUL 23 2015
MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
An alien may establish eligibility for asylum based upon either past
persecution or a well-founded fear of future persecution. Al-Harbi v. INS, 242
F.3d 882, 888 (9th Cir. 2001). The record in this case compels a finding of
eligibility for asylum based on both Zhongxiang Zhou’s past persecution and his
well-founded fear of future persecution.
In terms of past persecution, the facts in Zhou’s case greatly exceed the
proof of “other resistance” recently required by He v. Holder. In He, the petitioner
was working a two days’ train journey away from his home in another city in
China while Chinese authorities forced his wife to undergo an abortion. Unlike
Zhou, He did “not describe[] any resistance to China’s family planning policies in
his own right.” 749 F.3d 792, 795 (9th Cir. 2014). The twelve years He spent in
hiding were a result of failing to pay a government fine, not continued efforts to
defy China’s family planning authorities by attempting to have another child. Id.
at 794.
Here, the IJ determined that credible evidence presented by Zhou showed
that Zhou did resist China’s family planning policies. Zhou picked his wife up at
the hospital from what was supposed to be a routine procedure. Instead,
government officials had discovered that his wife was pregnant and, because Zhou
and his wife already had two children, forced her to undergo an abortion. Zhou
furiously argued with seven family planning officials when he found out what had
occurred and was threatened with arrest. Zhou later assisted his wife to flee into
hiding for months to conceal her next pregnancy and to protect their unborn child.
After the child was born, Zhou was assessed 20,000 RMB by the government for
violating the family planning policy by having a third child. Zhou never
acquiesced to the family planning policy.
Zhou’s courageous acts in helping to conceal his wife during her fourth
pregnancy show that, unlike He’s “grudging compliance,” Zhou “resist[ed] China’s
family planning policies in his own right [as a father].” He v. Holder, 749 F.3d at
795-96. Zhou’s defiance of the coercive population control policy fits squarely
within the meaning of “other resistance” as defined in our precedents. Zhou’s
wife’s forced abortion and Zhou’s continued support in his wife’s successful secret
effort to have a third child in defiance of China’s population control policy,
certainly exceed the burden required to show “other resistance.” Further, the birth
and open upbringing of his illegal third child constitutes “overt” and persistent
defiance of the Chinese government. Id. at 796. American asylum law is written
to protect such brave resistors rather than to deliver them back into the hands of
their persecutors.
2
As the majority points out, persecution is an “extreme concept that means
something more than . . . harassment.” Donchev v. Mukasey, 553 F.3d 1206, 1213
(9th Cir. 2009) (internal citations omitted). It is self-evident and legally true that
Zhou’s suffering, endured for the safe birth of his third child, amounts to more than
harassment. Zhou’s flight with his wife from their home to ensure she stayed
safely hidden during her pregnancy, in defiance of China’s family planning policy,
clearly demonstrates past persecution in addition to “other resistance.” See
Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314 (9th Cir. 2012) (“[W]e have
consistently recognized, being forced to flee from one’s home in the face of an
immediate threat of severe physical violence or death is squarely encompassed
within the rubric of persecution, as long as the persecutors’ actions are motivated
by [a] protected consideration”); see also Jiang v. Holder, 611 F.3d 1086, 1093-97
(9th Cir. 2010) (finding that a couple’s efforts to marry despite China’s family
planning policies, to conceive a child despite a forced abortion, and to flee from
home to avoid police and family planning officers constituted “other resistance”
and persecution); Li v. Ashcroft, 356 F.3d 1153, 1158-60 (9th Cir. 2004) (en banc)
(finding persecution as a result of a forced gynecological examination of a woman
and threats of sterilization to her partner).
3
The majority cites Jiang v. Holder to explain its decision to deliver Zhou
back into the hands of the Chinese government. 611 F.3d at 1093–94. In Jiang, a
young man argued that he should receive presumptive eligibility for asylum
because of the forced abortion and suffering of his partner. Jiang recognized that
presumptive eligibility through a partner’s forced abortion is no longer valid
because of a reinterpretation of INA § 101(a)(42) by the United States Attorney
General. Id. at 1093. Zhou does not request presumptive eligibility, but rather
successfully demonstrates “other resistence,” so the majority’s reliance on Jiang is
inapposite.
Further, Jiang is not on point here because we also consider threats of future
sterilization that exist for Zhou himself, threats that Zhou states were repeated as
recently as 2007. According to INA § 101(a)(42), “the term ‘refugee’ means . . .
(B) . . . a person who has been forced to abort a pregnancy or to undergo
involuntary sterilization . . . and a person who has a well founded fear that he or
she will be forced to undergo such a procedure . . . and [such a person] shall be
deemed to have a well founded fear of persecution on account of political opinion.”
(emphasis added). According to the plain terms of § 101(a)(42), Zhou is entitled to
refugee status.
4
The State Department’s Country Reports for China support Zhou’s well-
founded fear of future persecution through forced sterilization. One such report in
the administrative record remarks that “[m]andatory sterilization of couples with
two or more children, IUD insertion for women with one child, and abortion for
unauthorized pregnancies is now being implemented more strictly . . . local efforts
to implement these rules . . . includ[e] the imposition of heavy fines for violations,
mandatory late-term abortions, punitive sterilizations, and the destruction of
violator’s houses and personal property.” (citation omitted and emphasis added).
Our cases state that “[a] well-founded fear does not require certainty of persecution
or even a probability of persecution.” Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th
Cir. 2003). “[E]ven a ten percent chance of persecution may establish a well-
founded fear.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001); see also INS v.
Cardoza-Fonseca, 480 U.S. 421, 440 (1987).
Considering now the State Department Country Reports submitted by Zhou
addressing forced sterilization—reports that the IJ did not consider when it found
Zhou’s fear of future persecution incredible and that the BIA did not consider on
review—that probability of future persecution exists here. Aguilar Ramos v.
Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of the IJ and BIA to
consider evidence of country conditions [consisting of a State Department country
5
report] constitutes reversible error.”); Kamalthas v. INS, 251 F.3d 1279, 1284 (9th
Cir. 2001) (holding that the BIA abused its discretion when it denied petitioner’s
motion to reopen by failing to consider evidence of country conditions); Al–Saher
v. INS, 268 F.3d 1143, 1147–48 (9th Cir. 2001) (“The BIA must take [country
reports] into consideration when assessing whether an applicant qualifies under the
Convention [Against Torture].”).1
Moreover, Qu v. Gonzales, teaches that “forced sterilization is a unique kind
of persecution. In addition to the physical and psychological trauma that is
common to many forms of persecution, sterilization involves drastic and
emotionally painful consequences that are unending: The couple is forever denied
a pro-creative life together.” 399 F.3d 1195, 1202 (9th Cir. 2005). “Involuntary
sterilization irrevocably strips persons of one of the important liberties we possess
as humans: our reproductive freedom.” Id. at 1203. The well-founded fear of
future sterilization may alone be enough to justify asylum. See Li, 356 F.3d at
1161.
1
It is notable that neither the IJ nor BIA considered the China country
reports in dismissing Zhou’s protection under the United Nations Convention
Against Torture (“CAT”). The BIA “has plainly overrelied on its prior adverse
credibility finding against [Zhou] and failed to consider evidence of the relevant
country conditions in the record.” Kamalthas, 251 F.3d at 1284. As this court did
in Kamalthas v. I.N.S., I would vacate the decision of the BIA and remand to the
BIA for consideration of the appropriate country reports as they apply to Zhou’s
CAT claim. Id.
6
Zhou credibly testified to his wife’s forced abortion, and he has
demonstrated “other resistance” to China’s family planning policies and his past
persecution through flight from his home to protect his unborn child and wife. He
has also testified to a well-founded fear of future persecution by citing to personal
threats of sterilization, a fear supported by the State Department’s Country Reports
for China.
As we found in Qu, and examining the totality of the circumstance as
required by Jiang, I believe that Zhou’s claim for asylum is compelled by the law
and facts of this case. Thus I would grant the petition, reverse the decision of the
BIA, and remand with instructions that the Attorney General exercise her
discretion on whether Zhou should be granted asylum.
7