Zhang, Yun Jian v. Keisler, Peter D. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3340
YUN JIAN ZHANG,
Petitioner,
v.
ALBERTO R. GONZALES, UNITED STATES
ATTORNEY GENERAL,
Respondent.
____________
On Petition for Review of an Order
of the Board of Immigration Appeals
No. A96 133 769
____________
ARGUED FEBRUARY 14, 2007—DECIDED JULY 31, 2007
____________
Before MANION, WOOD, and EVANS, Circuit Judges.
MANION, Circuit Judge. Yun Jian Zhang, a citizen of
China, seeks review of the final decision of the Board of
Immigration Appeals that denied him asylum, withholding
of removal, and relief under the Convention Against
Torture. Because Zhang has failed to demonstrate persecu-
tion on account of his resistence to China’s involuntary
population control policies, we deny review.
2 No. 05-3340
I.
Petitioner Yun Jian Zhang (“Zhang”) is a native and
citizen of China. Zhang legally married his wife, Xiu Jiang
Lui, on October 4, 1993, and when they registered their
marriage, they also registered their daughter who was born
before their marriage on January 1, 1993. They were fined
1,500 RMBs because their daughter was born before they
were of age and legally married. Zhang and his wife paid
the fine and returned to their home in Changle, Fujian
Province. A little over a year later, Zhang’s son was born
on December 8, 1994.
On March 5, 1995, Zhang’s wife attended a “female
checkup” as required by China’s family planning policies.
At this appointment, an IUD was forcibly inserted into his
wife. The government sent checkup notifications setting
forth the fines and a penalty of sterilization; she has not
returned for follow-up checkups out of fear of fines and
forced sterilization.
When Zhang’s son was of school age, Zhang attempted
to register his son with the government so he could enroll
him in school. The authorities denied Zhang’s registration
because he and his wife had failed to wait the requisite four
years after having a daughter to obtain a birth permit to
have a second child. The authorities also ordered Zhang
to pay a 3,000 RMBs fine and threatened to destroy his
house if he failed to pay the fine.
Two government officials along with four other individu-
als came to Zhang’s home to collect payment for his fine
on June 5, 1998, about one month after Zhang attempted
to register his son. When Zhang informed them that he
was unable to pay the fine, the officials and individuals
who accompanied them smashed windows, doors, and
No. 05-3340 3
portions of his roof and also took his television. Ten days
later, Zhang successfully pleaded with the governmental
officials for his son’s registration, but the fine remained
unpaid. Zhang testified that he was able to register his
son because home destruction was one of two options—
fine or damage—presented to him when he went to register
his son, though he also testified that he still owed the
government money. After the destruction of their home,
Zhang and his family went to live at his wife’s parents’
house in Lianjian, Fujian Province, about an hour’s drive
away from his house.
Both of Zhang’s children are now lawfully registered
with the Chinese government and attend public school
near his in-laws’ home, though he pays higher tuition
because the children are considered out-of-district stu-
dents. Before he came to the United States, Zhang and his
family lived safely with his in-laws for four years, and
he was gainfully employed as a construction worker dur-
ing that time.
Zhang entered the United States on or about September
20, 2001, on a cargo container ship, without being ad-
mitted or paroled into this country. Upon entry into the
United States, Zhang was taken to a Los Angeles, Califor-
nia hotel to call his family in China notifying them of his
arrival and to pay the smuggler $60,000.1 On September 19,
2002, Zhang filed an application for asylum, withholding
of removal, and withholding of removal under the United
Nations Convention Against Torture (“CAT”). The IJ
conducted a hearing on January 26, 2004, at which Zhang
1
Zhang testified that while he has paid some of the money,
he still owes some to the smugglers. The amount of the balance
is unclear from the record.
4 No. 05-3340
testified. In addition to the facts set forth above, Zhang
stated that his wife and children continue to live in
Lianjiang where his wife is registered and where she
obtained identity documents from the local government
officials without incident in May 2002. Zhang also intro-
duced various exhibits including a photograph which he
described as taken in 2002 and depicting his children
standing in front of a cement sink in their destroyed home.
The government introduced into evidence the U.S. State
Department’s Profile of Asylum Claims and Country
Conditions for China which describes the fines imposed
for births without authorization from the Chinese govern-
ment, including that “[u]npaid fines have sometimes
resulted in confiscation or destruction of private property.”
The government also submitted to the IJ the U.S. State
Department’s Country Report on Human Rights Practices
for China which similarly describes fines imposed for
family planning violations, including that “[u]npaid fines
sometimes have resulted in confiscation or destruction
of homes and personal property by local authorities.”
The IJ found Zhang to be credible, but denied Zhang’s
petition for asylum, withholding of removal, and relief
under CAT, although she granted his request for voluntary
departure. Specifically, the IJ concluded that the fines
Zhang received did not amount to persecution, particularly
because he was able to register his son without harm. As to
the destruction of Zhang’s home, the IJ held that the
photograph of his children in front of a cement sink in an
unknown facility was insufficient to establish that the
home was destroyed because it could have been taken
anywhere. The IJ further explained that Zhang failed to
establish that his home destruction was tied to his or his
wife’s violation of China’s family planning laws and
No. 05-3340 5
concluded that “[a] failure to pay monies owed to the
government and the repercussions thereof do not establish
past persecution on account of political opinion.” As for
Zhang’s fear of future persecution, the IJ held that fear of
prosecution for illegal departure is not a legitimate basis
for asylum and that his fear of sterilization is unfounded,
particularly because he and his wife lived relatively
unharmed between the time of his son’s birth and
Zhang’s departure from China.
Zhang appealed to the Board of Immigration Appeals
(“BIA”). The BIA dismissed Zhang’s appeal concluding
that he had “failed to establish a nexus between his circum-
stances and one of the protected grounds in the Act.”
Noting that the IJ did not find the photograph persuasive,
the BIA adopted the IJ’s decision and concluded that “the
language defining ‘refugee’ in the Act [was not] so elastic
that the ‘other resistance’ component of the statute includes
the refusal to pay fines or a single IUD insertion.” As
for fear of future persecution with forced sterilization,
the BIA stated that if the governmental authorities were
going to “take action against” Zhang, they would have
done so during the eight years after his son’s birth and
before he came to the United States.
Zhang now petitions this court to review the denial of his
petition for asylum based in the destruction of his home.
On apppeal Zhang does not challenge the fines imposed
or the forcible insertion of an IUD into his wife.
II.
We review the denial of asylum under the highly defer-
ential substantial evidence standard which requires that
the decision be “supported by reasonable, substantial, and
6 No. 05-3340
probative evidence on the record considered as a whole.”
Sina v. Gonzales, 476 F.3d 459, 461 (7th Cir. 2007) (citations
omitted). “We will reverse only if the evidence presented
is such that a reasonable factfinder would have to conclude
that the requisite fear of persecution existed.” Gjerazi v.
Gonzales, 435 F.3d 800, 808 (7th Cir. 2006) (internal citations
and quotation omitted). See 8 U.S.C. § 1252(b)(4)(B) (stating
that “the administrative findings are conclusive unless
any reasonable adjudicator would be compelled to con-
clude to the contrary.”). Also, we may not reverse simply
because we would have decided the case differently.
Margos v. Gonzales, 443 F.3d 593, 597 (7th Cir. 2006) (cita-
tions omitted). Instead, we will reverse only if the evid-
ence compels a contrary conclusion. Youkhana v. Gonzales,
460 F.3d 927, 931 (7th Cir. 2006) (citation omitted). As in
this case, “[w]hen the BIA adopts the IJ’s decision
while supplementing the decision with its own reasoning,
the IJ’s decision, as supplemented by the BIA’s decision,
becomes the basis for review.” Gjerazi, 435 F.3d at 807.
To succeed on a claim for asylum, a petitioner must
establish that he is a refugee by “demonstrat[ing] that he
is unable or unwilling to return to his country 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.” Bejko v.
Gonzales, 468 F.3d 482, 484 (7th Cir. 2006) (citation omitted).
“If he has demonstrated past persecution, he is entitled
to a rebuttable presumption of a well-founded fear of
future persecution.” Id. at 484-85 (citation omitted). “The
Illegal Immigration Reform and Immigrant Responsibility
Act amended the definition of “refugee” to cover certain
applicants seeking relief from China’s one-child policy
who before the amendment could not establish persecu-
No. 05-3340 7
tion on one of the five enumerated grounds.” Zheng v.
Gonzales, 409 F.3d 804, 808 (7th Cir. 2005) (citing Lin v.
Ashcroft, 385 F.3d 748, 752 (7th Cir. 2004)).
An applicant may establish past persecution based on
political opinion if the applicant “(1) has been forced to
abort a pregnancy, (2) has undergone involuntary steriliza-
tion, (3) has been persecuted for failing or refusing to
undergo either such procedure, or (4) has been persecuted
for ‘other resistance to a coercive population control
program.’ ” Id. (quoting 8 U.S.C. § 1101(a)(42)(B)). “Eco-
nomic harm, too, may be persecution if it is deliberately
imposed as a form of punishment and it results in suf-
ficiently severe deprivations.” Ahmed v. Gonzales, 467 F.3d
669, 673 (7th Cir. 2006) (citations omitted). In this case,
Zhang asserts that he suffered past persecution based on
political opinion, namely economic persecution for other
resistance to a coercive population control program.2
Zhang bears the burden of demonstrating that he suffered
past persecution or a well-founded fear of future persecu-
tion on account of his political opinion. See 8 C.F.R.
§ 208.13(a).
Zhang argues that the IJ erred by finding him credible,
but then denying his petition for asylum. In particular,
Zhang contends that the IJ’s determination that the
home destruction for failure to pay the fine did not con-
2
The government argues that Zhang waived his ability to argue
“other persecution” on appeal by not specifically stating that
he was proceeding on appeal on the “other persecution” prong
of the statute, but we conclude that Zhang has sufficiently
presented the issue for our review by attempting to rebut the
IJ’s conclusion that he has not established past persecution
on account of political opinion.
8 No. 05-3340
stitute past persecution on account of political opinion is
in error because he established a tie between the destruc-
tion of his home and the family planning laws. He con-
cludes that he is entitled to asylum or, in the alternative,
that he is entitled to a new hearing.
Considering the record as a whole and Zhang’s testi-
mony as credible, we conclude that “reasonable, substan-
tial, and probative evidence” exists to support the IJ’s
denial of Zhang’s petition for asylum, though we come
to this conclusion through a different path.3 We are com-
pelled by the evidence to conclude that the evidence
establishes a tie between Zhang’s home destruction and
China’s coercive population control program. Both the
Country Report and the Profile of Asylum Claims for
China that the government submitted to the IJ describe
property destruction as part of the enforcement scheme
of China’s population control policies. As to Zhang’s
testimony, it is unclear whether, when he went to register
his son with the local governmental authorities, they
threatened home destruction if he failed to pay the fine (as
he stated on direct examination) or whether they presented
him with the option of paying the fine or the option of
having his house destroyed (as he stated on cross examina-
3
Because “the issue [in this case] does not require finding
new facts, but rather is narrowly confined to whether the
undisputed record evidence compels the conclusion” that Zhang
has not established economic persecution for other resistence to
China’s coercive population control policy, we do not usurp the
BIA’s fact-finding role and thus do not need to remand this
case for the BIA’s consideration. Ghebremedhin v. Ashcroft, 392
F.3d 241, 243 (7th Cir. 2004) (discussing INS v. Ventura, 537
U.S. 12 (2002)).
No. 05-3340 9
tion). Under either scenario, it is clear is that Zhang’s
home was damaged as part of the family planning en-
forcement scheme.4 Furthermore, the government con-
ceded at oral argument that the reason Zhang sustained
damage to his home was because of his failure to abide by
the population control laws in China.
Despite the existence of a nexus between the home
damage and China’s family planning policies, Zhang has
not demonstrated that his situation is sufficiently severe to
constitute economic persecution. See Ahmed v. Gonzales,
467 F.3d at 673 (“Economic harm, too, may be persecu-
tion if it is deliberately imposed as a form of punishment
and it results in sufficiently severe deprivations.”). Based
on Zhang’s testimony, the officials damaged the door,
windows, and roof of his home, but the destruction about
which Zhang testified was not irreparable, particularly
for someone who made his livelihood doing construc-
tion. Also, Zhang was not deprived of access to employ-
ment, but was gainfully employed as a construction worker
while he was in China. Cf. Borca v. INS, 77 F.3d 210, 216
(7th Cir. 1996) (holding that an alien who was a radio-
logist and was barred from any government employment,
except farm labor established “imposition of substantial
economic disadvantage on account of her political opin-
ion.”). In addition, Zhang and his family had shelter at
his in-laws’ home where they lived safely; the government
4
Damage to the home apparently is in lieu of the fine. By
inflicting damage equal to or greater than the amount of the
fine, the punishment and deterrent are rendered. See U.S.
Dep’t of State Country Report on Human Rights Practices for
China (1998); U.S. Dep’t of State Profile of Asylum Claims
and Country Conditions for China (2001).
10 No. 05-3340
did not interfere with him or his family after the govern-
ment officials damaged his home.
Zhang cites several cases from our sister circuits in
which government officials, when enforcing China’s
population control policies, inflicted home damage and
other forms of economic punishment. Only in Li v. Att’y
General of United States, 400 F.3d 157 (3d Cir. 2005), did the
court address whether the Chinese government’s actions
amounted to persecution; the other cases did not discuss
economic persecution. In Li, the Third Circuit concluded
that a severe economic restriction existed amounting to
persecution where
[i]n the aggregate, a fine of more than a year and a
half’s salary; blacklisting from any government em-
ployment and from most other forms of legitimate
employment; the loss of health benefits, school tuition,
and food rations; and the confiscation of household
furniture and appliances from a relatively poor family
constitute deliberate imposition of severe economic
disadvantage which could threaten his family’s free-
dom if not their lives.
Id. at 169. Zhang’s condition in China is not comparable
to that of Li. Unlike Li, Zhang maintained employment.
Zhang also registered his son without paying the fine, and
his children attended public school. Additionally, he and
his family lived in peace with his wife’s family, despite
the unpaid fine and his wife’s failure to attend checkups.
This is not a situation where Zhang and his family left
Changle and went into hiding to avoid governmental
authorities and thus were not bothered: Zhang’s children
are pupils at the public school, Zhang’s wife obtained
documents from governmental authorities as late as 2002,
and Zhang’s wife and children returned to Changle in
No. 05-3340 11
2002 when the photograph of his home was taken. Taking
the evidence as a whole, we conclude that “reasonable,
substantial, and probative evidence” supports the IJ’s
denial of Zhang’s petition for asylum.
Finally, Zhang argues that he is entitled to asylum based
on a fear of future persecution. However, Zhang bases this
claim solely on the fact that he suffered past persecution
through the destruction of his home. Because Zhang has
failed to establish past persecution, he is not entitled to
the rebuttable presumption of future persecution. Bejko,
468 F.3d at 484-85 (citation omitted). Therefore, absent
any other evidence of past or future persecution, Zhang
has not established a that he is entitled to asylum because
of a fear of future persecution.
III.
Because the evidence does not compel a conclusion that
Zhang suffered past persecution based on a political
opinion and because Zhang has not established the likeli-
hood of future persecution, we DENY his petition for
review.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-31-07