Zhang, Junshao v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1706
JUNSHAO ZHANG,
Petitioner-Appellant,
v.
ALBERTO R. GONZALES, Attorney General
of the United States of America,
and DEPARTMENT OF HOMELAND SECURITY,1
Respondents-Appellees.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A73-488-569
____________
ARGUED APRIL 12, 2005—DECIDED JANUARY 19, 2006
____________
Before MANION, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Junshao Zhang, a native of the
People’s Republic of China, arrived in the United States
at New York’s JFK airport in January 1995, at which
time he was placed in exclusion proceedings. The govern-
ment alleged that Zhang lacked a valid passport, visa or
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we
have substituted the current Attorney General of the United
States, Alberto R. Gonzales, for his predecessor as the named
respondent.
2 No. 04-1706
border-crossing card in violation of §§ 212(a)(7)(A)(i)(I),
(B)(i)(I), and (B)(i)(II) of the Immigration and Nationality
Act (INA), and that he presented a fraudulent passport
to seek to gain entry into the United States in violation
of INA § 212(a)(6)(C)(I). Zhang sought political asylum
and withholding of deportation to China.2
At the immigration hearing, Zhang admitted the allega-
tions regarding the lack of a non-immigrant visa, lack of an
immigrant visa, and lack of a travel document, but denied
the allegation of fraud under § 212(a)(6)(C)(i). The govern-
ment subsequently withdrew the fraud charge, which the
immigration judge (IJ) acknowledged at the hearing. The IJ
held that Zhang’s excludability was established by his
admissions as to the other charges, and turned to Zhang’s
request for asylum and withholding of deportation. After
hearing Zhang’s testimony, the IJ found that Zhang’s claim
was based principally on his opposition to the forced family
planning regulations in China, and his experience as a
victim of that policy in China. The IJ found that Zhang’s
testimony was credible, and made findings of fact based on
that credibility assessment. Specifically, the IJ found that:
Zhang is opposed to the Chinese birth control policy; Zhang
and his wife had a marriage ceremony at home, but never
officially registered the marriage because he was under the
age of 22 and she was under the age of 20, which are the
legal ages of marriage for males and females respectively in
China; in June of 1994, his wife was detained by Birth
Control Bureau personnel and was forced to have an
abortion because she was underage; and his wife was held
for 2 days, and Zhang was ordered to pay a fine.
2
Zhang later sought relief under the United Nations Conven-
tion Against Torture as well, but he did not challenge the denial of
that relief in the opening brief to this court and therefore it is not
before us.
No. 04-1706 3
Although crediting Zhang’s testimony and finding those
facts in his favor, the IJ nevertheless denied the re-
quested relief based on Matter of Chang, 20 I. & N. Dec. 38(BIA 1989). In Chang, the Board held that implementation
of the one-child policy does not, by itself, create a well-
founded fear of persecution based on race, religion, nation-
ality, membership in a particular social group, or political
opinion. Accordingly, the IJ held that Zhang was statutorily
ineligible for a grant of asylum.
Congress subsequently enacted the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, Div. C, 110 Stat. 3009, 3009-546 (IIRIRA).
Section 601(a)(1) of the IIRIRA amended the definition of
refugee by providing:
(A) [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, 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 pers-
ecution on account of political opinion.
§ 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (Supp. II
1996). The impact of that amendment was to overrule
Chang, and allow for the granting of asylum applications in
cases in which the claim of persecution stemmed from the
enforcement of China’s coercive population control policies.
After the enactment of that amendment, the Board was
presented with requests by many asylum applicants to
reopen their cases. Many of those motions to reopen were
untimely because the change in law came after the time
for reopening had expired. See 8 C.F.R. § 3.2(c); In re
4 No. 04-1706
X.G.W., 22 I. & N. Dec. 71 (1998). The Board nevertheless
recognized the Congressional desire to provide relief to
individuals suffering persecution because of China’s
coercive population control policies. Accordingly, the
Board declared that it would exercise its “limited discretion-
ary powers under the regulations to reopen or reconsider
cases sua sponte in unique situations where it would serve
the interest of justice.” Id. at 73. Specifically, the Board
held that it would grant reopening of asylum claims based
on coercive family planning policies where the alien had
presented persuasive evidence of persecution based on
China’s “one-couple, one child” policy, and where asylum
had previously been denied based on Chang. X-G-W, 22 I. &
N. Dec. at 74. The Board in X-G-W granted reopening on
that basis, and granted the application for asylum. Id.
In 2002, the Board in In re G-C-L, 23 I. & N. Dec. 359(2002), declared that its liberal reopening policies for such
untimely claims would end in 90 days, reasoning that those
with final orders of exclusion or deportation had been
provided a reasonable period of time in which to seek relief
during the five years in which untimely reopening was
allowed. The Board proceeded to consider the applicant’s
claim in G-C-L. The Board began by accepting
the Immigration Judge’s positive credibility finding. Id.
at 361. Given that credibility finding, the Board held that
the applicant had established that he suffered past persecu-
tion in China on account of political opinion, and was thus
presumed to have a well-founded fear of future persecution.
Id. Although that presumption could be rebutted by a
showing that there had been a fundamental change in
circumstances such that the applicant no longer had a well-
founded fear of persecution if returned to China, the INS
had not offered any such rebuttal evidence and therefore
the Board granted the application for asylum. Id.
Zhang moved to reopen his case within the window of
time in which the Board was allowing such reopening. The
No. 04-1706 5
Board determined that Zhang had established prima facie
eligibility for asylum based on the new definition of “refu-
gee” in the IIRIRA, and remanded the case to an IJ to
consider the claim under current law and for entry of a new
decision.
Rather than rely on the fact findings by the prior IJ, and
update the record as to any changes in circumstances in the
interim, the IJ conducted a new hearing at which he made
new fact findings contrary to those determined in that
initial hearing. First, the IJ questioned whether Zhang was
married at all, not because he found Zhang’s testimony
inherently incredible, but because Zhang presented no
corroborating evidence from his former spouse (Zhang
testified that after he left China, his wife moved to another
town and eventually remarried.) Even assuming that a
marriage ceremony took place, the IJ held that Zhang had
the burden to establish that the ceremony constituted a
marriage under Chinese law, and that he had failed to do
so.
The IJ also held that Zhang had failed to prove by
credible evidence that his wife had been subjected to a
forcible abortion. The IJ declared that there was reason to
doubt Zhang’s description of what happened to his wife
because there was no corroboration for it from others such
as his wife, nor any hospital record produced of the abor-
tion. Moreover, the IJ held that Zhang’s testimony was at
variance with the State Department Profile of Asylum
Claims and Country Conditions, and the Immigration and
Nationality Directorate of the U.K. Finally, the IJ noted
that the initial immigration judge had found Zhang’s
testimony credible and his demeanor appropriate in 1995,
but the IJ then reached the opposite conclusion at this
hearing. The IJ noted that Zhang gave answers quickly and
readily on direct examination, but was more hesitant and
claimed very often not to remember on cross-examination
and when questioned by the Court. As an example, the
6 No. 04-1706
Court noted his responses when questioned as to what he
told the immigration officers in 1995. The IJ questioned
Zhang at length concerning his use of a fraudulent passport
at entry, and did not believe Zhang’s answers. Accordingly,
the IJ held that Zhang intentionally misled the immigration
officer upon his arrival in the United States, claiming to be
a person he was not. The IJ concluded that Zhang was
subject to inadmissibility under § 212(a)(6).
The denial of asylum in this case, then, is based almost
entirely on the IJ’s adverse determination of issues that had
already been adjudicated in Zhang’s favor at the earlier
hearing. The IJ’s questioning at the hearing, and the
ultimate decision, dwelled at length on the fraud allegations
under § 212(a)(6), a charge the government had withdrawn
in the first proceeding. We have made clear that although
an IJ may find an applicant not credible when he uses false
documents to establish an asylum claim, “ ‘the use of false
documents to facilitate travel or gain entry does not serve
to impute a lack of credibility to the petitioner.’ ” Dong v.
Gonzales, 421 F.3d 573, 577 (7th Cir. 2005), quoting In re O-
D-, 21 I. & N. Dec. 1079, 1081 (BIA 1998). Accordingly, the
IJ improperly relied on the entry documents as a basis to
find Zhang incredible in his asylum claim.
Moreover, the IJ erred in even considering the withdrawn
fraud charge. Zhang would have had no reason to believe
that the fraud allegations would surface at all, given the
remand order that directed the judge to consider the claim
under the law as changed by the amendment superceding
Chang. That amendment has nothing to do with § 212(a)(6),
addressing only the impact of a forcible abortion or steril-
ization on a person’s asylum claim. Rather than apply the
new law to the fact findings, however, the IJ raised and
considered a legal issue expressly withdrawn years earlier,
and which the prior IJ recognized as a non-issue. We have
previously noted that “when a case is reassigned to a new
judge, ‘the successor judge should generally not reexamine
No. 04-1706 7
earlier rulings merely because he has a different view of the
law or facts than the original judge.’ ” Sun Hee Ko v.
Gonzales, 421 F.3d 453, 455 (7th Cir. 2005) (quoting the
Board of Immigration Appeals). Nothing in the remand
order implicated the earlier voluntary resolution of the
fraud issue, and the IJ erred in resurrecting it. “Litigants
have a right to expect that a change in judges will not mean
going back to square one.” Williams v. Commissioner of
Internal Revenue, 1 F.3d 502 (7th Cir. 1993); Ko, 421 F.3d
at 456. In this case, the transfer of the case to Chicago had
precisely that result, as the IJ based his ruling largely
on an issue unrelated to the remand order, which had
already been resolved by the prior IJ.
Those concerns apply to the IJ’s determination regard-
ing the marriage and the abortion as well. The initial IJ
held that Zhang testified credibly, and made explicit fact
findings that Zhang and his wife had been married and that
his wife was forced to undergo an abortion because they
were underage at the time of the marriage and pregnancy.
The government did not present any new evidence casting
doubt on those fact findings. In fact, the IJ reached the
opposite conclusion based entirely on the IJ’s own impres-
sions of credibility and the failure of Zhang to provide
corroborating evidence. Given the fact findings by the initial
IJ and the remand order indicating that the case was
remanded to consider it in light of the change in law,
however, there was no reason for Zhang to believe that
those factual issues would be determined anew, and that
corroboration would be required. Unlike issues such as a
change in circumstances that could impact whether he faced
a threat of future persecution, the validity of the marriage
and the forcible abortion were not issues that the passage
of time would have changed, absent new evidence or some
reason to believe that the earlier IJ had clearly erred. In
fact, in other cases in which motions to reopen were granted
in light of the amendment superceding Chang, the Board
8 No. 04-1706
decided the issue itself without any new hearing at all,
giving deference to the initial IJ’s fact findings. See G-C-L,
23 I. & N. at 361; X-G-W, 22 I. & N. at 73-4. The law of the
case doctrine cautions against such inconsistent rulings
based merely on the judges’ differing impressions of credi-
bility, absent exceptional circumstances such as a change in
the law, new evidence, or compelling circumstances. See
generally Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir.
1991); Ko, 421 F.3d at 455-56; Ramos v. Gonzales, 414 F.3d
800, 803 (7th Cir. 2005) and Pilch v. Ashcroft, 353 F.3d 585,
586-87 (7th Cir. 2003) (acknowledging law of the
case doctrine in immigration context). In fact, the ap-
plicability of the doctrine has been recognized in the
Operating Policies & Procedures Memoranda (OPPM) of the
Office of the Chief Immigration Judge, United States
Department of Justice Executive Office of Immigration
Review. OPPM 01-02. That OPPM declares that “the law of
the case doctrine is consistent with all existing immigration
laws and regulations,” and that it “shall apply” where there
has been a change in venue. Id. at 2. In such circumstances
“the receiving judge is not free to hear the case de novo and
ignore any orders prior to the venue change, unless excep-
tional circumstances . . . permit departure from this policy.”
Id. Those exceptional circumstances include a supervening
rule of law, compelling or unusual circumstances, new
evidence, or such clear error in the previous decision that
its result would be manifestly unjust. Id. None of those
exceptional circumstances are present here. The amend-
ment superceding Chang affected only the application of the
law to the earlier fact findings concerning the marriage and
the abortion, not the legal prerequisites for making those
fact findings. Moreover, there was no new evidence or other
compelling circumstances which accounted for the IJ’s
contrary determination. The IJ’s mere difference of opinion
regarding credibility is not enough to overcome law of the
case concerns, and the prior determinations should have
been given deference.
No. 04-1706 9
In any case, the reasons for the adverse credibility
determinations in this case are unsupportable, and there-
fore the IJ decision cannot stand on that basis alone. First,
the IJ determined that Zhang was not actually married
because he failed to provide corroborating evidence of the
marriage and because he failed to establish that the
marriage was valid under Chinese law. Under the REAL ID
Act of 2005, “no court shall reverse a determination made
by a trier of fact [in a removal case] with respect to the
availability of corroborating evidence . . . unless the court
finds . . . that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.”
8 U.S.C. § 1252(b)(4). We recently discussed the impact of
that provision:
All that this means is that an immigration judge’s
determination that if there was evidence to cor-
roborate the alien’s testimony the alien could and
should have presented it is entitled to reasonable
deference. The precondition to deference is that the
immigration judge explain (unless it is obvious) why
he thinks corroborating evidence, if it existed, would
have been available to the alien. [citations omitted] . . .
To be entitled to deference, a determination of availabil-
ity must rest on more than implausible asser-
tion backed up by no facts.
Hor v. Gonzales, 421 F.3d 497, 500-01 (7th Cir. 2005).
Accordingly, in Hor we rejected the IJ’s demand for corrobo-
ration of an alien’s tale of abuse in the form of affidavits by
co-workers, because the IJ gave no explanation for thinking
the co-workers would provide such affidavits in light of the
murderous nature of the group involved in the abuse. Id. at
501. Similarly, the Hor court rejected the IJ’s demand that
Hor provide copies of documents he had filed in court in
Algeria, noting that there was no reason to doubt that Hor
did not possess such copies and that we cannot presume
that such copies are as readily available in disordered
10 No. 04-1706
nations as in the United States. Id. Similarly, the IJ’s
determination that the affidavit from his former wife was
“available” to Zhang was based solely on unsubstantiated,
implausible assertions by the IJ without any record sup-
port. Zhang explained at the hearing that his wife was
angry at him for leaving China, and that she moved from
the area and had remarried. He testified that his sister had
contacted his wife’s family and they had told the Zhangs not
to contact them anymore. The IJ does not mention this
testimony in faulting Zhang for failing to provide a state-
ment of the marriage from his wife. Considering that his
wife had remarried and lived in a different town, it is not at
all surprising that she would not want to have contact with
him. The IJ should have at least addressed that testimony
in faulting Zhang for failing to obtain corroboration.
Despite the IJ’s misgivings concerning the marriage, the
IJ assumed that a ceremony took place but held that Zhang
had failed to establish that the ceremony constituted a
marriage under Chinese law. That is a Catch-22. Zhang’s
asylum claim is based on China’s enforcement of its popula-
tion 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 pre-
cisely 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.
Congress passed § 601(a)(1) of the IIRIRA to ensure that
families who are victims of forced abortion and sterilization
under China’s population control policy would receive
asylum, yet the IJ denied the claim precisely because that
population control policy rendered the marriage illegal.
That would entirely subvert the Congressional amendment,
and deny asylum to anyone whose sterilization or abortion
was set in motion by a decision to marry and procreate prior
to the minimum age. Where a traditional marriage cere-
mony has taken place, but is not recognized by the Chinese
No. 04-1706 11
government because of the age restrictions in the popula-
tion control measures, that person nevertheless qualifies as
a spouse for purposes of asylum. Ma v. Ashcroft, 361 F.3d
553, 558-61 (9th Cir. 2004).
In addition to questioning the marriage, the IJ also
held that Zhang failed to establish by credible evidence that
his wife had suffered a forced abortion at the hands of the
government. The government, to its credit, does not attempt
to defend the IJ’s determination that Zhang failed to
establish that the forcible abortion occurred. Again, the IJ
relied on the lack of a statement from the wife or her
family, without addressing Zhang’s explanation for his
inability to obtain such corroboration. The IJ also relied on
the lack of any hospital record of the forced abortion. Yet
there is no support for the contention that such a hospital
record could be obtained. In fact, we have previously
addressed this very issue in Lin v. Ashcroft, 385 F.3d 748(7th Cir. 2004). In Lin, we discussed the State Department’s
Profile of Asylum Claims and Country Conditions for China,
which reports that the U.S. Embassy and Consulates are
unaware of any so-called “abortion certificates.” According
to Embassy officials, the only document of that nature is
one provided only in cases of voluntary abortions, in which
certificates are provided to allow the patient to obtain time
off work. Id. at 753-54. The absence of a hospital certificate,
then, provides no reason to doubt Zhang’s testimony, and in
fact is entirely consistent with that testimony.
Similarly, the alleged contradictions between Zhang’s
testimony and official country reports are illusory. The
IJ relies on a State Department report, concluding that “the
State Department is saying that the consequences that a
child in Fujian [Province] who is born out-of-wedlock or be-
fore the parents were legally eligible to marry would not
be forcible abortion, but would rather be a fine or some
kind . . . .” IJ Order at 7. The State Department report,
however, directly states that it “could not exclude” the
12 No. 04-1706
possibility of forced abortions of children of couples with an
early marriage. Accordingly, the State Department report
does not contradict Zhang’s testimony, and the IJ improp-
erly characterized it as such. Moreover, we have repeatedly
cautioned that “an IJ should not rely on generalized Profiles
or Country Reports to refute an applicant’s personal experi-
ence.” Dong v. Gonzales, 421 F.3d 573, 578 (7th Cir. 2005);
Bace v. Ashcroft, 352 F.3d 1133, 1139 (7th Cir. 2003) (“[I]t
would be improper to find that a witness’s credibility about
specific events could be ‘contradicted’ by a generalized State
Department report broadly discussing conditions in the
applicant’s country of origin.”); see also Lin v. Ashcroft, 385
F.3d at 754. That is precisely how the Report was used
here. We rejected such a use of the State Department report
in a factually-similar case in Dong, and we reject it here.
The IJ repeated that error in his use of the report from
the Immigration and Nationality Directorate of the U.K.—
a report supplied by the IJ himself at the hearing. That
report indicated that Fujian Province was less strict in
its enforcement of the birth control policies than other
provinces except for Guangdong. The IJ concluded that
Zhang’s testimony was at variance with those authorities,
and therefore not credible. Again, however, a general ob-
servation concerning a province as a whole cannot be
the basis for wholesale disregard of specific testimony by an
individual. Moreover, the IJ failed to address in any way
the myriad authorities provided by Zhang reaching an
opposite conclusion. Included in those were the Chicago
Tribune reports and ABC Nightline reports of testimony of
Gao Xiao Duan, the official in charge of enforcing the
population control measures in a township in Zhang’s
province (Fujian Province) during a 14-year time period
which included the time of the forcible abortion in this case.
Gao defected to the United States, bringing with her video
and documentary evidence of the strict enforcement of the
population control measures, and testified before Congress
No. 04-1706 13
as to those population control measures. In the news
reports of her testimony, she described at length the
measures undertaken in her province to assure compliance
with the planned-birth policies, including the forcible
abortion of any pregnancies in which the woman lacked a
permit for the birth, even where the pregnancy was in the
ninth month. Gao noted that women younger than 20 are
not authorized to become pregnant and thus cannot obtain
that permit. See also Forced Abortion and Sterilization in
China—The View from Inside: Hearings Before the
Subcomm. on Int’l Operations and Human Rights of the
House Comm. on Int’l Relations, 105th Cong. 8-12 (1998)
(testimony of Ms. Gao Xiao Duan),
http://commdocs.house.gov/committees/intlrel/
hfa49740.000/hfa49740_0f.htm. In contrast, the general
statements from the Immigration and Nationality Director-
ate of the U.K. were in a 2002 report, at a time subsequent
to the abortion at issue here and also subsequent to the
aforementioned testimony and ensuing inter-
national attention on Fujian Province. See also Ma v.
Ashcroft, 361 F.3d 553 (9th Cir. 2004) (discussing simi-
lar third trimester forced abortion in underage marriage,
and citing numerous sources that the policy against early
marriages and births is strictly enforced in Fujian Prov-
ince).
In an attempt to salvage the decision, the government
presents alternative grounds for denying asylum in this
case. The government argues that even if Zhang suffered
past persecution under § 1101(a)(42)(B) to qualify for
refugee status, he cannot establish a well-founded fear
of future persecution if he returned to China. The IJ did not
consider whether Zhang had demonstrated a well-founded
fear of future persecution, so ordinarily this would be a
matter that we would remand. The government argues,
however, that we may decide that issue adversely to Zhang
as a matter of law.
14 No. 04-1706
In In re C-Y-Z, 21 I. & N. Dec. 915, 917 (1997), the BIA
held that the spouse of a woman who has been forced to
undergo an abortion or sterilization procedure can establish
past persecution. Furthermore, the spouse, having demon-
strated past persecution, is entitled to a presumption of
future persecution. 8 C.F.R. § 208.13(b)(1) (an applicant
who has established past persecution “shall also be pre-
sumed to have a well-founded fear of persecution on the
basis of the original claim.”) Because Zhang’s wife has
remarried, the government argues that he can no longer
“bootstrap” onto her claim, and can no longer claim the
benefit of the rule that a husband may vicariously assert
the injury to his wife. This contention is without merit. At
its heart, the government’s claim rests on the notion that
Zhang suffers no persecution, independent of his wife, as
the result of the forcible abortion of his child. Although his
wife was certainly a very direct victim of China’s population
control measures, Zhang was a victim as well. The forcible
abortion has deprived him of his unborn child, of the ability
to realize the family that his wife and he had desired, and
forever deprived him of the ability to become a parent to
that unborn son or daughter with his wife. That loss is
certainly not lessened by the subsequent break-up of the
marriage, because that simply means he may have been
deprived of his only chance to parent a child with that
former spouse. Given the stress on a relationship that an
involuntary abortion or sterilization would produce, it
would be particularly perverse for courts to treat a subse-
quent break-up of the marriage as somehow lessening the
impact of that persecution. An argument analogous to the
government’s theory has been rejected by the BIA and the
courts. Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 200); In re
Y-T-L, 23 I. & N. Dec. 601 (2003). The government in those
cases argued that a spouse whose wife had been involun-
tarily sterilized had no fear of future persecution because
her involuntary sterilization removed any threat of future
sterilization or forcible abortions. That convoluted argu-
No. 04-1706 15
ment was properly rejected because it would allow the act
of persecution itself to constitute the change in circum-
stances that would result in the denial of asylum, and
would categorically deny asylum to a class of persons that
Congress clearly intended to protect. 399 F.3d at 1203; 23
I. & N. Dec. at 605. In rejecting such a claim, the court
and the BIA focused on the special nature of the persecu-
tion and the need to give full force to the intent of Congress.
The BIA emphasized that the act of forced sterilization is
not a discrete act, but rather a permanent and continuous
form of persecution that deprives the couple of the child or
children who might have eventually been born to them. 399
F.3d at 1202; 23 I. & N. Dec. at 607. The BIA held that
persons who have suffered involuntary sterilization have a
well-founded fear of future persecution because they will be
persecuted for the remainder of their lives due to that
sterilization. 399 F.3d at 1203; 23 I. & N. Dec. at 607. The
Qu court noted a similar impact for forced abortions:
Forced abortion, as a form of persecution, possesses
similar unusual characteristics. Again, the pain,
psychological trauma, and shame are combined with the
irremediable and ongoing suffering of being perma-
nently denied the existence of a son or daughter. Thus,
forced abortions, without more, also likely will result in
statutory entitlement to asylum eligibility and with-
holding of removal. In fact, an even stronger argument
may exist that the presumption is necessarily rebutted
in involuntary abortion cases, because the applicant
may still face additional persecution in the future in the
form of more forced abortions, involuntary sterilization,
and other coercive population control practices.
399 F.3d at 1202 n.8.
That logic applies equally to Zhang. In addition to be-
ing permanently denied the existence of that son or daugh-
ter with his wife, he remains subject to the same population
control measures. That his wife has remarried does nothing
16 No. 04-1706
to eliminate that risk. There is nothing in this record to
indicate that Zhang has no desire to marry and have
children, or that he now agrees with China’s population
control measures. He is still subject to all of China’s
population control measures, including the ban on underage
marriages and early births, which are still problematic if he
marries a woman under that age limit. In fact, if his
marriage had remained intact, the government would
undoubtedly be arguing that there was no threat of future
persecution because they would no longer be under the legal
age to have children under those population control mea-
sures. This twisted logic has already been rejected by the
BIA and the courts. The government has failed to identify
any changes that are “fundamental in nature and go to the
basis of the fear of persecution.” 23 I. & N. Dec. at 605. The
mere speculation that Zhang may not run afoul of those
population control measures given the break-up of his
marriage is insufficient to rebut the presumption of future
persecution. The government raises no other argument that
Zhang lacks a well-founded fear of future persecution, nor
does it suggest that it would raise any other argument if the
matter were remanded. Because we reject the government’s
sole argument that he lacks a well-founded fear of future
persecution because of the break-up of his marriage, the
government has failed to demonstrate a well-founded fear
of future persecution as a matter of law. Finally, the IJ’s
alternative determination that Zhang would not merit a
favorable exercise of discretion even if he were found
eligible for asylum, is based on the same erroneous credibil-
ity determinations and the improper consideration of the
fraud charge withdrawn years earlier. Accordingly, we
grant the petition for review, vacate the BIA’s denial of
withholding of removal and asylum, grant withholding of
removal, hold Zhang eligible for asylum, and remand to the
Attorney General to exercise his discretion whether to grant
asylum.
No. 04-1706 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-19-06