Xu Ming Li Xin Kui Yu v. John Ashcroft, Attorney General ( 2004 )

Opinion by Judge MICHAEL DALY HAWKINS; Dissent by Judge KLEINFELD.

MICHAEL DALY HAWKINS, Circuit Judge:

In this fact-intensive case, we examine the reach of congressional efforts to ease immigration asylum requirements for individuals affected by China’s population control policies. In 8 U.S.C. § 1101(a)(42)(B), Congress made clear that individuals forced to undergo abortion or sterilization would be deemed to have been persecuted on account of political opinion. At issue here is the application of another category of asylum-seekers covered by this statute: those persecuted for “other resistance” to those policies. Id. Specifically, we must determine whether a young woman who announced her opposition to government population control policies and is thereafter subjected to a forced gynecological exam and threatened with future abortion, sterilization of her boyfriend, and arrest satisfies this latter category. Because we determine that she does, we grant the petition for review of Xu Ming Li (“Li”) and remand the petition of Xin Kui Yu (“Yu”) for further consideration in light of the grant to Li.

FACTS AND PROCEDURAL HISTORY

Li and her boyfriend, Yu, lived in a rural village in the province of Fujian, China. After they met, they formed a nearly immediate attachment. They spent a great deal of time with each other and were quite open about their desire to marry. Within days of their first meeting, false rumors spread in the village that Li and Yu were living together and that Li was pregnant. This led to a visit by a local population control officer. Accused of being pregnant and told to end her relationship with Yu, Li responded by stating: “I’m going to have many babies ... you have nothing to do with this.” The village official responded with a pointed warning: ‘You will pay for this.”

Two days later, two government nurses picked up Li from her home and took her to the local birth control department, where two men pinned her down on a bench while a doctor conducted a forced gynecological examination. Surrounded by four persons involved in the thirty-minute examination, Li screamed in protest to no avail. Her attempts to resist were overcome by brute force. After the officials determined that Li was not pregnant, she was again pointedly warned: “If you keep on doing this, we will take you back any minute we want to give you [another] examination. And if you are found to be pregnant, then you are subject to abortion and your boyfriend will also be ... sterilized.”

Thereafter, Li and Yu applied for a marriage license and were denied for not meeting the minimum age requirements. They proceeded to mail out wedding invitations announcing them intention to marry anyway, but when Li and Yu learned that warrants had been issued for their arrest, they fled China prior to getting married. Periodic visits by security officials to the homes of Li and Yu then began and continued through the time of the hearing before the Immigration Judge (“IJ”).

After fleeing China, Li and Yu came to the United States, where the Immigration and Naturalization Service (“INS”) issued Notices to Appear to both, alleging that they were subject to removal. Both were brought before the IJ. Conceding their removability, Li and Yu applied for political asylum and withholding of removal and brought requests for relief under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). 8 U.S.C. § 1231(b)(3)(A); CAT, opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20, at 20 (1988). The IJ found Li’s and Yu’s hearing testimony to be entirely credible, but denied relief, determining that Petitioners had failed to demonstrate persecution. Petitioners were ordered removed to China. Petitioners appealed to the Board of Immigration Appeals (“BIA”), which adopted the reasoning of the IJ and dismissed the appeal, making the removal order final on January 13, 2000. Li’s and Yu’s petitions for review to this court were timely filed.

A three-judge panel affirmed the BIA’s denial of Petitioners’ asylum, withholding of removal, and CAT claims. Li v. Ashcroft, 312 F.3d 1094 (9th Cir.2002). We vacated the panel opinion and agreed to rehear this case en banc. Li v. Ashcroft, 335 F.3d 858 (9th Cir.2003). As a result, this is the first opinion of a circuit court to address Congress’s “other resistance” language.

The BIA had jurisdiction under 8 C.F.R. § 3.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252(a) and 8 C.F.R. § 208.18(e).

STANDARD OF REVIEW

We review factual findings underlying the denial of an asylum application for “substantial evidence.” See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The BIA’s determination must be upheld if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Id. (quoting 8 U.S.C. § 1105a(a)(4)). To reverse the BIA we must find that the evidence presented by Petitioners was such that a reasonable fact-finder would be compelled to conclude that Petitioners were persecuted or had a well-founded fear of persecution based on their resistance to China’s population control policies. See id.

DISCUSSION

Section 208(a) of the Immigration and Nationality Act (“INA”) gives the Attorney General discretion to grant political asylum to any alien determined to be a “refugee” within the meaning of the INA. 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1). A refugee is defined as one who is unable or unwilling to return to his or her home 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.” Id.¹

In 1996, Congress specifically added language to the Illegal Immigration Reform and Immigrant Responsibility Act to overrule a BIA decision holding that subjection to China’s one-child policy, including forced sterilization, would not constitute persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” In re Chang, 20 I. & N. Dec. 38, 1989 WL 247513 (BIA 1989) (emphasis added). Concern for the victims of these harsh population control practices prompted Congress to amend the definition of “refugee” to include “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 population control program.” 8 U.S.C. § 1101(a)(42)(B).

Asylum has been granted under this amendment to persons who were forcibly sterilized as well as to their spouses. In re X-P-T, 21 I. & N. Dec. 634, 635, 1996 WL 727127 (BIA 1996); In re C-Y-Z, 211. & N. Dec. 915, 1997 WL 353222 (BIA 1997). But prior to this case, no circuit has addressed the meaning of the phrase “other resistance to a coercive population control program.” 8 U.S.C. § 1101(a)(42)(B).

A. Li’s Asylum Claim

Li qualifies for asylum under the “other resistance” category of the statute. Her testimony, which the IJ found credible, compellingly demonstrates that she was persecuted on account of her resistance to a coercive population control program. See 8 U.S.C. § 1101(a)(42)(B).

I. “Persecution”

The BIA concluded that Li failed to demonstrate “persecution” and hence ended the analysis with that conclusion. The record, however, compels a contrary conclusion. Our caselaw characterizes persecution as “an extreme concept,” marked by “ ‘the infliction of suffering or harm ... in a way regarded as offensive.’ ” Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995)).

Li’s forced pregnancy examination and the events that followed clearly constitute persecution. Following through on threats that she would “pay” for her announced opposition to government policy, local officials forcibly took Li to a birth control center where she was put on a bench and held down by two nurses. Even by rudimentary medical standards, the examination that followed was crude and aggressive: Li’s uterus, vagina, and cervix were probed while she resisted by kicking and screaming in fear. This examination went on for half an hour over Li’s vehement protests.² When it was finally determined that Li was not pregnant, she was told that at any time in the future, she could be subjected to the same sort of test, and that if she were pregnant, she would be subject to forced abortion and her boyfriend sterilized. The timing and physical force associated with this examination compel the conclusion that its purpose was intimidation and not legitimate medical practice.³

The “substantial evidence” standard of review means we must be deferential to the BIA’s conclusions. But deference does not mean blindness. Here, the evidence regarding Li’s forced pregnancy examination is so compelling that it dictates the conclusion that she did suffer persecution.⁴ See Ghaly, 58 F.3d at 1431.

Li has not only demonstrated past persecution sufficient to establish her eligibility for asylum, but she has also demonstrated a clear fear of future persecution. 8 U.S.C. § 1101(a)(42). The applicable two-part test requires examination of both objective and subjective components. “The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution.” Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995) (citing Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993)). Li testified that when she fled China, she was even afraid to call home because she was worried that her telephone call would be traced and that the Chinese government would send someone to arrest her. Added to this was her testimony about the post-exam threats that she could be forced to undergo a pregnancy examination at any time. Further, she was issued a government document indicating that she and her boyfriend could not have a baby for the rest of their lives. For these reasons, she fled from and fears returning to China. This credible testimony satisfies the subjective fear of future persecution part of the test. The objective inquiry requires Li to show the reasonableness of her fear of persecution. See Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994) (overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir.1996) (fear must have an objective basis in reality)). It can be satisfied by a showing of past mistreatment rising to the level of persecution. See Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000). Li’s forced examination, the accompanying threats of future abortion and/or sterilization procedure, and the issuance of a warrant for her arrest, all compellingly demonstrate that she has an objective fear of future persecution should she be forced to return to China.

Having determined that the record compels the conclusion that Li was persecuted in the past and also has a fear of future persecution, we turn to the other part of the asylum test, namely that her persecution was on account of her resistance to a coercive population control program.

2. “Coercive Population Control Program”

The “coercive population control program” that Li resisted was two-fold. It (1) set a minimum marriage age for men and women, which neither petitioner had reached at the time of the events in question, and (2) limited family size to one child per married couple.⁵ There was ample evidence, including testimony from the mayor of a neighboring city in the Fujian province, that China’s coercive population control program was in effect in the city in which Li lived at the time of her “examination.”

3. “Resistance”

Li resisted this coercive population control program in two ways: vocally and physically. First, she vocally resisted the marriage-age restriction when she told the village official that she wanted “freedom for being in love” and when she publicly announced her decision to marry even after a license was refused. She also resisted the one-child policy when she told the official she intended “to have many babies,” that she did “not believe in the policy” limiting family size, and that she did not want him to “interfere.” Second, she resisted physically by kicking and struggling when forced to undergo a gynecological examination.

4. “On Account Of’

For persecution to qualify as “on account of,” the applicant must possess a protected characteristic and that protected characteristic must have motivated the persecutor to harm the applicant. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. Congress determined that those who resist coercive population control policies should enjoy protection. See 8 U.S.C. § 1101(a)(42)(B). Li fits into this category and thus possesses a protected characteristic. The only question, then, is whether her resistance motivated the government officials to harm her through the forced pregnancy examination.

Li clearly would not have been forcibly examined for pregnancy but for her resistance to China’s population control program. When confronted about her relationship with her boyfriend and told to end it, she defied the village official with her comments about not believing in the policy, having many children with her boyfriend, and directing the official not to interfere in her life. The forced pregnancy exam which Li underwent occurred just two days after this exchange. Therefore the exam, which we determined to be persecution, was clearly “on account of’ her attempts to resist the population control policies, and Li has demonstrated the requirements of the statute.

Although we determine that Li is eligible for asylum, the ultimate decision to grant asylum is discretionary.⁶ We do anticipate, however, that the Attorney General will give appropriate consideration to this court’s view of the seriousness of Li’s treatment at the hands of Chinese officials and the threat she faces if returned.

While asylum is discretionary, withholding of removal is mandatory. As this separate issue of withholding of removal was neither fully briefed nor argued specifically to the en banc court, we do not decide it at this time.

We also need not address Li’s CAT claims at this time. We grant her petition for review.⁷

B. Yu’s Asylum Claim

The IJ and BIA also denied Yu’s asylum claim. In many ways, his claim factually parallels Li’s. According to Yu’s testimony, he fears future persecution stemming from the threat of future sterilization and the outstanding warrant for his arrest. Yu may also be able to demonstrate resistance to a coercive population control policy through his testimony indicating that he decided to get married, even when he was denied a license by the village leader, in an attempt to avoid the future harm to the couple that was threatened when Li was forcibly examined. Thus Yu may qualify for asylum in his own right.

Because the record is less developed as to Yu, however, it is appropriate to remand his case to the BIA for consideration of his petition in light of our grant to Li. See INS v. Ventura, 587 U.S. 12, 14-18, 128 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (remand appropriate where asylum issue not fully considered by the BIA).

CONCLUSION

We grant Li’s petition and remand for further proceedings consistent with this opinion. Petition remanded as to Petitioner Yu.

1 . An alien may alternatively be entitled to withholding of deportation upon showing a "clear probability” that the alien’s life or freedom would be threatened in his or her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1253. "Clear probability” requires a showing that persecution is "more likely than, not” a slightly more stringent standard than the showing of a “well-founded fear” required for eligibility for asylum. Rebollo-Jovel v. INS, 794 F.2d 441, 443 (9th Cir.1986). However, once an applicant meets this threshold, relief is mandatory. Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000).

2 . Making an argument never made by the government in its briefs, the dissent suggests that what happened to Li was no different than a "standard Chinese village obstetric procedure[]” and goes on to analogize Li's forced pregnancy exam to other routinely mandated medical procedures. [Dissent at 1167]. A forced gynecological examination lasting thirty minutes and attended by threats does not meet any civilized understanding of a routine medical procedure.

3 . Early pregnancy is best and most often detected by a blood or urine test that detects the fi subunit of human chorionic gonadotropin (HCG). Lori A. Bastían, MD, MPH and Joanne T. Piscitelli, MD, Is This Patient Pregnant? Can You Reliably Rule in or Rule Out Early Pregnancy by Clinical Examination?, Journal of the American Medical Association, Aug. 20, 1997, at 588. See also Williams Obstetrics, 26-28 (21st ed.1997). A physical examination may detect evidence of pregnancy, such as a change in color in the vaginal mucosa (the "Chadwick sign”), or the softening of the cervix, but neither sign is usually detectable prior to six weeks gestational age. Williams Obstetrics at 25-26; Bastían and Piscitelli at 587. The record demonstrates that Li and Yu met only two and one-half weeks prior to the examination. Thus, tire physical examination would not have yielded any of the signs of pregnancy, if Li were indeed pregnant.

4 .Li describes her experience as rape-like. Given her refusal to consent to the physically invasive and emotionally traumatic examination of her "private parts,” this analogy is certainly not far-fetched. And, as we have recognized, rape may constitute persecution. Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir.1996); see also Shoafera v. INS, 228 F.3d 1070, 1074 (9th Cir.2000).

The dissent's reliance on Prasad v. INS, 47 F.3d 336 (9th Cir.1995) and Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir.2003) is misplaced. [Dissent at 1167-1168]. Prasad held that detention combined with a physical attack could constitute persecution, but that the specific attack against Prasad where he was "hit on his stomach and kicked from behind” was not "so overwhelming as to necessarily constitute persecution.” 47 F.3d at 339. Li's "rape-like” exam was such a personal invasion of her body that the two cases can hardly be compared. Hoxha is similarly inapposite. There, the court found that the one incident of physical violence was not connected to any specific threat and that all other threats against the Petitioner were harassment and not persecution because they were unfulfilled. Hoxha, 319 F.3d at 1182. In Li’s case, there was a clear threat when the government official told her she would "pay” followed by a forced physically invasive exam just two-days later.

5 . The Government argued, and the dissent finds a "permissible reading” of the record, that Li resisted the marriage laws only and not the population control policy, relying on Li’s applying for a marriage license, sending out wedding invitations, and testifying that she and Yu came to America “to get married and then ... find employment....”

The early marriage policy is an integral part of the population control policy. Nevertheless, in the case before us, Li and Yu opposed not only the early marriage aspect of the policy, but clearly and forcefully resisted the restrictions placed on the number of children a family may legally have. Importantly, this resistance, for which Li was subjected to the forced pregnancy exam, occurred before she ever applied for a marriage license.

The dissent also points to the Government’s argument that because Petitioners have now reached legal age to marry, they could now marry and start a family without violating the law, and thus that the BIA could have reasonably concluded that Li and Yu now have "nothing to fear.” Yet a warrant for Li’s arrest remains in effect. Even after she would have reached legal age to marry in China, officials have continued to periodically visit her house in China, purportedly looking to arrest her. Li herself testified that if she went back to China, she believes she would be arrested and jailed. As Li clearly resisted the population control program by resisting the actual pregnancy exam and informing the village official that came to visit her house that she would not abide by the prohibitions on multiple pregnancies or pregnancies prior to marriage, we are not presented with the question of whether resistance to the marriage-age aspect of the program alone would satisfy the statutory standard.

6 . It was indicated at oral argument that there was a cap on the number of yearly asylum grants to those persecuted for resistance to a coercive population control policy. If that cap has already been met, Li could be granted conditional asylum until she can adjust her status consistent with tire cap. See Matter of G-C-L-, 23 I & N Dec. 359, 2002 WL 1001051 (BIA 2002) and Matter of Y-T-L, 23 I & N Dec. 601, 608, 2003 WL 21206539 (BIA 2003) (BIA granted asylum "conditioned upon an administrative determination by the Service that a number is available for such a grant under section 207(a)(5) of the Act, 8 U.S.C. § 1157(a)(5) (2000)”).

7 . The dissent’s suggestion that INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002), requires a remand to the agency is misplaced. The IJ, whose opinion we effectively review because it was adopted by the BIA, reviewed all the evidence, found the claimant’s testimony credible, and considered whether Li's actions were on account of resistance to a coercive population control policy.

The IJ found that the conduct and circumstances of the examination did not amount to persecution, but accepted the testimony that demonstrated the exam was in retaliation for, or "on account of,” Li’s opposition to the population control policies. The IJ also concluded that it could be said that Li offered resistance to a coercive population control program when she was forcibly subjected to the medical examination. The IJ thus did consider whether Li resisted a coercive population control policy. There is therefore no need to remand under Ventura for the agency to consider whether any persecution was on account of resistance to a coercive population control program. The agency has already considered the factual and legal contentions as to Li's claims.