Lishou Wang v. Loretta E. Lynch ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1261
LISHOU WANG,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A088-577-598
____________________
ARGUED AUGUST 4, 2015 — DECIDED OCTOBER 26, 2015
____________________
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Lishou Wang, a 51-year-old Chi-
nese citizen, petitions for review of the denial of his applica-
tions for asylum and withholding of removal based on his
resistance to China’s coercive population-control policy. An
immigration judge found that Wang did not testify credibly
about the crux of his claim, which involves a beating he suf-
fered while struggling to prevent his wife from being forced
2 No. 15-1261
to receive what he believed to be a sterilization procedure.
But the IJ misunderstood Wang’s testimony about the nature
of the procedure his wife ultimately received—the implanta-
tion into her arm of a contraceptive device. Further the IJ
erred by concluding, alternatively, that Wang could not
show past persecution because he resisted only his wife’s
forced contraceptive implant as opposed to a forced abortion
or sterilization. We grant the petition and remand for further
proceedings.
I. BACKGROUND
We recount the facts primarily from Wang’s testimony
during his final removal hearing. In China Wang worked as
a farmer in a village in the eastern province of Shandong. He
married in 1988, and the following year his wife gave birth
to a daughter. Three months later government officials re-
quired his wife to have an intrauterine device (“IUD”) im-
planted. But five years later the IUD “fell off,” and she again
got pregnant. Under government policy, though, too little
time had passed since having their first child, so officials
forced her to abort the pregnancy. (Wang does not rely on
this abortion for his asylum claim.) By 2000, Wang and his
wife were able to have another child, a son.
The events at the heart of these proceedings occurred
three months after their son’s birth, when government offi-
cials went to their house and threatened to sterilize either
Wang or his wife. Wang protested and fought against the
officials, who pushed him to the floor, kicked him, and beat
him with batons until he passed out from “severe, excruciat-
ing pain” in his leg. At some point he heard a neighbor tell-
ing the officials to stop before they killed him. Wang was
taken to a hospital, where he learned that his foot was bro-
No. 15-1261 3
ken. In the meantime officials had returned to his house and
forced his wife to undergo a procedure in which a contracep-
tive called “Norplant” was surgically inserted into her arm. 1
(This procedure engendered considerable confusion at the
hearing, as Wang first labeled it “tubal ligation” before clari-
fying that he meant the “birth control implant on my wife’s
upper arm” or “skin implant.”) His wife became ill from the
implant, and the couple had no further children.
Nine years later Wang entered the United States on a
three-month business visitor’s visa that he had procured
from a snakehead. More than a year after his entry, he ap-
plied for asylum and withholding of removal, contending
that he had been persecuted for resisting the government of-
ficials’ demands to sterilize him or his wife. The Department
of Homeland Security referred his application to an IJ and
charged him with removability for overstaying his visa,
see 8 U.S.C. § 1227(a)(1)(B). Wang conceded the charge and
renewed his requests for relief. 2
Wang supported his testimony with documents about
the ordeal. He included an affidavit in which he described
1 According to an uncredited pamphlet in the record entitled
“Facts About Norplant,” Norplant is the brand name of a contraceptive
consisting of 6 small capsules that are implanted under the skin of a
woman’s upper arm and is 99% effective at preventing pregnancy for up
to 5 years. The pamphlet warns that possible side effects of the drug in-
clude weight gain, headaches, heavy vaginal bleeding, missed periods,
stomach pain, chest pain, leg pain, trouble breathing, and pus or bleed-
ing at the insertion area.
2 The IJ excused Wang’s failure to meet the one-year deadline for
filing his asylum application, see 8 U.S.C. § 1158(a)(2)(B), (D), and the
government has never challenged that determination.
4 No. 15-1261
how family-planning officials beat him, broke his foot, and
then sterilized his wife while he was in the hospital. He also
submitted medical records noting that he had suffered a
“bone fracture” and that his wife had undergone “surgery
by Norplant device implantation.” Finally he added letters
from his wife and mother-in-law describing the procedure as
“[s]ubcutaneous ligation.”
The IJ denied all relief. The IJ credited Wang’s testimony
about his background, his family, and the circumstances of
his departure from China, and acknowledged that Wang
“could qualify for asylum based on past persecution if he
showed that he resisted a coercive population program.” But
the IJ did not credit Wang’s testimony about the incident
with family-planning officials. Instead, the IJ found “clear
inconsistency” in Wang’s alternative characterizations of his
wife’s procedure as both a forced tubal ligation and a forced
implantation of a birth-control device. These two procedures
were so “markedly different,” explained the IJ, that there
was “no reason to think” they “could be confused in any
way.” And even if Wang were telling the truth about his
wife forcibly receiving a contraceptive, the IJ continued in
the alternative, he could not establish past persecution be-
cause he had resisted only an implant, not a forced abortion
or sterilization. Finally, the IJ added, Wang did not present
sufficient corroboration to clarify his inconsistent testimony.
The Board upheld the IJ’s decision, finding the adverse
credibility determination not clearly erroneous. It explained
that the IJ was not required to accept Wang’s explanation for
confusing tubal ligation with a Norplant implantation, espe-
cially since the two procedures were “vastly different.”
Without credible testimony, the Board concluded, Wang’s
No. 15-1261 5
documentary evidence was insufficient to meet his burden
of proof for asylum or withholding of removal. The Board
declined to address the IJ’s alternative conclusion that Wang
could not qualify for asylum because he had not resisted a
forced abortion or sterilization.
II. ANALYSIS
Because the Board affirmed the decision of the IJ and
added its own reasoning, we review both decisions, see Khan
v. Holder, 766 F.3d 689, 695 (7th Cir. 2014); Georgieva v. Holder,
751 F.3d 514, 519 (7th Cir. 2014), bearing in mind that factual
and credibility determinations must be supported by sub-
stantial evidence, see Tawuo v. Lynch, 799 F.3d 725, 727
(7th Cir. 2015); Liu v. Lynch, 788 F.3d 737, 741 (7th Cir. 2015),
while legal conclusions are reviewed de novo, see Antia-Perea
v. Holder, 768 F.3d 647, 658–59 (7th Cir. 2014).
A. Credibility
Wang persuasively argues that the IJ’s credibility finding
is flawed because the IJ mistook Wang’s innocent confusion
over the name of his wife’s medical procedure for a conclu-
sion that it never occurred. The IJ improperly discredited
Wang’s testimony by relying solely on his mistaken labeling
of the procedure as “tubal ligation” even though he consist-
ently described it as involving a “skin implant” and “birth
control implant on my wife’s upper arm.” 3 Throughout his
testimony Wang explained that he understood the conse-
3 This confusion apparently was exacerbated by interpretation
glitches. For example, Wang first testified (through an interpreter) that
the family-planning officials had tried to force his wife to have a “vasec-
tomy.” When the IJ pressed Wang to clarify, the interpreter interjected
and acknowledged that she had erred and meant to say “tubal ligation.”
6 No. 15-1261
quence of his wife’s procedure—whether labeled a “tubal
ligation” or a Norplant implantation—to be her inability to
conceive another child. Wang emphasized that he thought of
Norplant as the same as a “sterilization procedure” or “tubal
ligation” because “in China, without certain identification,
you cannot remove this implant from your body.” Although
tubal ligation is in fact different from a contraceptive im-
plant, Wang said nothing at the hearing to suggest that he
grasped the difference between the two procedures. Conse-
quently the IJ lacked substantial evidence to use Wang’s
misunderstanding of the term “tubal ligation” to discredit
his uncontradicted testimony that family-planning officials
implanted a contraceptive device into his wife’s arm.
B. Past Persecution
Next Wang challenges the IJ’s alternative conclusion—
which the Board did not disturb—that even if he credibly
had testified about his wife’s forced Norplant implantation,
he could not demonstrate past persecution as described in
8 U.S.C. § 1101(a)(42) because he did not resist a forced abor-
tion or sterilization. The IJ misconstrued this statute.
Under § 1101(a)(42), if Wang’s wife were forcibly steri-
lized or forced to have an abortion, she could establish per se
persecution on account of political opinion. See Chen v. Hold-
er, 604 F.3d 324, 331 (7th Cir. 2010). And in that case Wang
could seek relief for himself if he had been harmed for resist-
ing her sterilization or abortion. See id.; Jin v. Holder, 572 F.3d
392, 397 (7th Cir. 2009). But Wang also may seek relief if he
suffered persecution for engaging in “other resistance to a
coercive population control program,” 8 U.S.C. § 1101(a)(42).
Under this provision, the precise procedure that Wang’s
wife underwent as part of that program is beside the point.
No. 15-1261 7
China’s “coercive population control program” is not limited
to only forced abortions and sterilizations; it also forces cou-
ples to use birth-control measures such as condoms, pills,
and IUDs. See Population and Family Planning Law (P.R.C.)
(promulgated by the Standing Comm. Nat’l People’s Cong.,
Dec. 29, 2001, effective Sept. 1, 2000), reprinted in U.S. Dep’t
of State, 2007 China Profile of Asylum Claims & Country
Conditions; see also Chen v. Holder, 737 F.3d 1084, 1089
(7th Cir. 2013). Wang’s claim that he was punished for op-
posing the efforts of family-planning officials to enforce the
population-control program, either by sterilizing him or his
wife or by implanting a contraceptive device into his wife’s
arm, thus falls within the protection of the statute.
On remand the Board must assess two matters in the first
instance. See Kone v. Holder, 620 F.3d 760, 763–64 (7th Cir.
2010). First it must decide whether Wang’s attempted inter-
ference with the family-planning officials, when they came
to his house threatening to implement population-control
measures, qualifies as “other resistance.” See, e.g., Cheng v.
Att’y Gen. of U.S., 623 F.3d 175, 190 (3d Cir. 2010) (“other re-
sistance” includes refusing to comply with demands to abort
pregnancy, fleeing town to escape family-planning officials,
defying orders to undergo sterilization, frustrating officials’
attempts to have IUD inserted, and missing multiple gyneco-
logical appointments); Matter of M-F-W- & L-G-,
24 I. & N. Dec. 633, 638 (B.I.A. 2008) (resistance “must be as-
sessed against the failures or refusals to comply with official
demands to adhere to birth planning policies” and includes
acts such as “removing an IUD or failing to attend a manda-
tory gynecological appointment”); cf. He v. Holder, 749 F.3d
792, 796 (9th Cir. 2014) (marrying underage, having children
earlier than allowed, and paying partial fine for violating
8 No. 15-1261
policy do not constitute the “overt” and “persistent defi-
ance” required to qualify as “other resistance”). Second it
must determine whether the harm Wang alleges to have suf-
fered—a beating that led to hospitalization and a broken
foot—amounts to persecution. See, e.g., Chen v. Holder,
705 F.3d 624, 629 (7th Cir. 2013) (persecution encompasses
harm such as beatings, detention, arrest, interrogation, and
imprisonment).
III. CONCLUSION
We GRANT the petition for review and REMAND this
case to the Board for further proceedings.