Chun Hua Zheng v. Eric H. Holder, J , 666 F.3d 1064 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2322
C HUN H UA Z HENG,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A088-779-713.
A RGUED D ECEMBER 14, 2011—D ECIDED JANUARY 31, 2012
Before P OSNER, M ANION, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The petitioner is a Chinese
woman who applied for asylum and for withholding
of removal on the ground that because of her opposition
to China’s “one child” policy she faces persecution if she
is returned to China. She applied for asylum seven years
after the expiration of the one-year deadline, see 8 C.F.R.
§ 1208.4(a)(2), and with only the most threadbare of
2 No. 11-2322
excuses, and so the Board of Immigration Appeals was
on solid ground in rejecting her application for asylum.
Her application for withholding of removal, also
denied by the Board, remains for consideration. The
withholding of removal provision of the immigra-
tion law provides relief for asylum seekers who missed
the one-year deadline; it states that “the Attorney
General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom
would be threatened in that country because of the
alien’s race, religion, nationality, membership in a par-
ticular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). (A person “who has been persecuted
for . . . 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).) This
means, the Supreme Court has held in a notably loose
interpretation of the statutory language, that the alien
must “establish by objective evidence that it is more
likely than not that he or she will be subject to persecu-
tion upon deportation.” INS v. Cardoza-Fonseca, 480
U.S. 421, 430 (1987); see Benitez Ramos v. Holder, 589
F.3d 426, 431 (7th Cir. 2009); Viridiana v. Holder, 646
F.3d 1230, 1239 (9th Cir. 2011). (The Court meant “sub-
jected,” not “subject.”)
A regulation provides that “if the applicant [for with-
holding of removal] is determined to have suffered
past persecution in the proposed country of removal on
account of . . . political opinion, it shall be presumed
that the applicant’s life or freedom would be threatened
No. 11-2322 3
in the future in the country of removal on the basis of
the original claim.” 8 C.F.R. § 1208.16(b)(1)(i). Zheng
argues that she was persecuted in China because of her
opposition to the “one child” policy. If she is right (the
Board ruled that she was wrong), she is entitled to
the presumption.
She lived in Fujian Province. Her cousin became preg-
nant, and because the cousin was not married family
planning officers (three in number) came to her home
to arrest her, perhaps intending to force her to have an
abortion because in Fujian Province women are “not
allowed to give birth out of wedlock.” Immigration
and Refugee Board of Canada, “China: Treatment of
Pregnant, Unmarried Women by State Authorities, Par-
ticularly in Guangdong and Fujian; Whether Unmarried
Women Are Obliged to Undergo Pregnancy Tests by
Family Planning Officials,” June 23, 2009, www.irb-
cisr.gc.ca:8080/RIR_RDI/RIR_RDI.aspx?l=e&id=452415
(visited Jan. 3, 2012). Zheng happened to be visiting
the cousin when the officers arrived, and she forcibly
resisted their effort to seize the cousin. The officers re-
sponded by kicking, beating, and cursing her. She was
bruised, and to an undetermined extent bloodied. The
family planning officers called the police, who came
and arrested her, and she was in jail for three days
and while there was beaten twice. Apparently she
didn’t seek medical attention for any injuries inflicted
by the assaults, but we do not know whether it would
have been feasible for her to do so; we are not
informed about the conditions and availability of med-
ical care for persons in her situation in Fujian Province.
4 No. 11-2322
Upon releasing her from jail (no charges having been
filed), the police instructed her to report back to them
every week—we don’t know why. She did this for
three weeks; she testified that the police abused her
verbally on her visits. She then fled the country (that
was in 1999) and came to the United States, where she
married and gave birth to two children, who apparently
(as is not uncommon among Chinese emigrants) are at
present living with their grandparents in China. She
fears that if returned to China she will be forcibly
sterilized for having had two children. Her cousin and
her father have written her that she will be “punished”
if she returns, but the letters don’t indicate what the
writers think the punishment will be.
The initial question is whether she’s proved that the
beatings were persecution, because if they were she
gets the benefit of the presumption. The immigration
judge, the Board, and the government in its brief all
point out that worse beatings than Zheng received
have been held not to constitute persecution, but the
cases are all over the lot and this court’s “worse beatings”
cases, at least, are distinguishable. In Zhu v. Gonzales,
465 F.3d 316 (7th Cir. 2006), for example, the applicant
for relief, who was the boyfriend of a woman sought
for violating the one-child policy, was hit with a brick
by angry family planning officers who went to his
home, looking for the girlfriend. But it was an isolated
incident; he was not arrested, or otherwise molested.
The beating that Zheng received in her cousin’s home
was, as far as we are able to glean from the scanty
No. 11-2322 5
record, the consequence of her forcibly resisting her
cousin’s arrest. A person injured resisting the arrest of
another person is not necessarily a victim of persecution,
even if that other person is. Lin v. Attorney General, 555
F.3d 1310, 1316-17 (11th Cir. 2009). Zheng may have
been resisting her cousin’s arrest in an effort to protect
her cousin rather than because of opposition to the gov-
ernment’s policy. But she says she opposed it, and the
immigration judge deemed her credible. Still, there is a
“difference between opposing a policy, and the tactics
to which one resorts in opposing it. However abhorrent
China’s one-child policy may be, it would not be persecu-
tion for China to have jailed the petitioner had she as-
saulted the family-planning officers . . . when they forced
an entrance to her cousin’s house.” Li v. Holder, 612
F.3d 603, 606 (7th Cir. 2010) (citations omitted); see also
Gao v. Holder, 429 Fed. App’x 64 (2d Cir. 2011) (per
curiam). In the United States, and we imagine in
virtually all other countries, it is a crime to resist an
arrest violently even if it is an unlawful arrest; for
there are legal remedies against false arrest.
The beatings that Zheng received in jail may have
been motivated by her opposing the government’s family
planning policy, but may instead have reflected the
sadism or misogyny of police or jail guards (Zhu v. Gonzales
likewise may have involved an isolated instance of
police out of control), or anger at her for having fought
with the family planning officers. She testified that during
the three-day detention the guards had “scolded me
all along saying that I was resisting against the national
law and in the public place—and also violate the
6 No. 11-2322
national law in public, and also insulted the law.”
The precise force of “resisting,” “violat[ing],” and “in-
sult[ing]” is unclear, but it could be “forcibly resisting.”
The lack of compelling evidence that the motivation
for the beating was her opposition to China’s coercive
population control program is a more important con-
sideration in an evaluation of her claim of persecution
than that she did not seek medical treatment and ap-
parently was not badly hurt. Beating a woman (if
the motivation is one of the grounds for persecution in
8 U.S.C. § 1231(v)(3)(A) that forbids removal of the victim,
including “political opinion,” which in turn includes
resistance to China’s one-child policy) crosses the line
that distinguishes persecution from mere harassment.
The Board having failed to define persecution, we’ve
suggested that it “involves . . . the use of significant physi-
cal force against a person’s body, or the infliction of
comparable physical harm without direct application
of force (locking a person in a cell and starving him
would be an example), or nonphysical harm of equal
gravity.” Stanojkova v. Holder, 645 F.3d 943, 948 (7th
Cir. 2011) (emphasis in original). That the physical force
need not be so great as to inflict a serious injury is illus-
trated by Beskovic v. Gonzales, 467 F.3d 223, 224 (2d Cir.
2006), where the petitioner claimed that he had been
“arrested by Serbian police, detained, interrogated, and
beaten on two separate occasions . . . [and that] the
Serbian authorities took these actions because they be-
lieved him to be associated with the Kosovo Liberation
Army (’KLA’). His detentions lasted two to three hours,
during which the Serbian police interrogated and physi-
No. 11-2322 7
cally abused him.” The court thought beating (as distin-
guished from the technical battery that consists of any
offensive touching of a person’s body) quite likely to
cross the line that separates harassment from persecu-
tion, id. at 226, but the ground for the beating (it must
be one the grounds listed in section 1231(b)(3)(A))
is critical, and is opaque in this case.
Without the benefit of the presumption based on
past persecution, an applicant for withholding of
removal may have a very tough row to hoe. Because
illegal aliens tend to be impecunious, or at most only
moderately prosperous, they do not have the resources
to commission experts to conduct systematic studies of
the conditions in their country of origin that they
will confront if they are sent back. At best they can
point to such studies as may already exist. But we
haven’t found systematic studies of how China
nowadays administers its one-child policy, either gen-
erally or in the particular case of a woman who returns
to Fujian Province after having given birth to more
than one child in the United States, and who having
come from Fujian must return there if she is removed
from the United States; the government does not
suggest that Zheng would be permitted to return or
relocate to another province.
At the oral argument we were told by Zheng’s lawyer
that the Australian government has conducted the kind
of studies we’re looking for, but all that we have been
able to find are short reports by the Australian Refugee
Review Tribunal, which reviews decisions regarding
8 No. 11-2322
refugee visas, in response to questions that arise in
the course of the tribunal’s work. The reports cull infor-
mation from various sources, including legislation and
policy statements of the country in question, our State
Department’s country reports, and reports of the United
Nations High Commissioner for Refugees. The Tribunal’s
reports contain anecdotal evidence of human rights
abuses by Chinese family planning officials, but we can
find no data on how frequently returning violators are
persecuted, as by being subjected to forced steriliza-
tion—the kind of data an alien seeking with-
holding of removal will often need in order to prove
that she is more likely than not to be persecuted if
she is returned to her country of origin.
The Tribunal’s reports point out that forced steriliza-
tions and abortions are not official provincial (or national)
policy in China and appear to have become rare. See, e.g.,
Refugee Review Tribunal Australia, “RRT Research
Response: HN34917, China,” June 16, 2009, www.mrt-
r rt .g o v.a u / A r t ic le D o c u m e n t s /7 1 /c h n 3 4 917.p df.asp x
(visited Jan. 3, 2012); see also “Women’s Rights and
China’s New Family Planning Law: Roundtable Before
the Congressional-Executive Commission on China on
Women’s Rights and China’s New Family Planning Law,”
107th Cong., 2d Sess. 4, 7-10, Sept. 23, 2002 (Statement
of Bonnie Glick), www.gpo.gov/fdsys/pkg/CHRG-
107shrg82487/pdf/CHRG-107shrg82487.pdf (visited Jan. 3,
2012). According to the State Department, Fujian is not
one of the provinces that “require ‘termination of preg-
nancy’ if the pregnancy violates provincial family-
planning regulations,” but instead merely “require[s]
No. 11-2322 9
unspecified ‘remedial measures’ to deal with unauthor-
ized pregnancies.” U.S. Department of State, 2009 Country
Reports on Human Rights Practices: China § 1(f) (Mar. 11,
2010). Couples returning to China with children born
abroad may be fined, see, e.g., Zheng v. Mukasey, 546
F.3d 70, 72 (1st Cir. 2008) (per curiam), and as noted in
Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008), these fines
(called “social compensation fees”) are stiff—often
beyond the violators’ ability to pay. But we don’t know
what happens if they don’t pay. And some officials in
Fujian Province apparently believe that children born
abroad should not be counted against the one-child limit.
Zheng v. Mukasey, supra, 546 F.3d at 73.
We need evidence-based law, just as we need evidence-
based medicine. United States v. Garthus, 652 F.3d 715,
720 (7th Cir. 2011); Zenith Electronics Corp. v. WH-TV
Broadcasting Corp., 395 F.3d 416, 419 (7th Cir. 2005); see
also Wells v. SmithKline Beecham Corp., 601 F.3d 375, 380
(5th Cir. 2010). Zheng has no feasible way of determining
how likely it is that she’ll be persecuted if she is returned
to Fujian Province. One would like the Department
of Justice, of which the Immigration Court and the
Board of Immigration Appeals are subordinate bodies,
to assemble and collate the existing bodies of data and
offer an expert opinion on the likelihood of persecution
of Chinese women returned to Fujian Province having
fled the country because of opposition to Chinese family
planning policy or an altercation with family planning
officials and having given birth to more than one child
in the United States. The analytical effort might fail
because of the fog that surrounds conditions in Fujian
10 No. 11-2322
Province—a province with a population of more than
35 million. But it should be attempted, as it has not been.
We suggested in Banks v. Gonzales, 453 F.3d 449, 453-55
(7th Cir. 2006), and repeat, that the Board of Immigra-
tion Appeals (or perhaps the Department of Homeland
Security, which handles asylum cases until an immigra-
tion judge gets involved, and presents the evidence to
that judge) adopt in asylum cases the equivalent of the
vocational experts used by the Social Security Admin-
istration in disability cases and maybe even the “Grid”
that the Administration uses to expedite and system-
atize administration, so that recurrent issues, such as
requests for asylum or withholding of removal by
aliens claiming to face persecution for violating Chinese
family planning laws, can be handled uniformly.
On the basis of the skimpy record, supplemented by
our own research, we cannot fault the immigration
judge or the Board for concluding that Zheng has not
proved that it is more likely than not that she will be
persecuted if she returns to China. The petition for
review is therefore
D ENIED.
1-31-12