Li Ying Zheng v. Eric H. Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-3081 & 12-2566
L I Y ING Z HENG,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A099-358-996
A RGUED A PRIL 9, 2012—D ECIDED JULY 11, 2013
Before F LAUM and H AMILTON, Circuit Judges, and
F EINERMAN, District Judge.Œ
F EINERMAN, District Judge. Li Ying Zheng, a citizen of
China, illegally entered the United States in February 1999
and over seven years later applied for asylum and with-
Œ
The Honorable Gary Feinerman, of the Northern District of
Illinois, sitting by designation.
2 Nos. 11-3081 & 12-2566
holding of removal. The immigration judge denied
asylum and found her removable, and the Board of Im-
migration Appeals dismissed her appeal and ordered her
removed. This court docketed as No. 11-3081 Zheng’s
timely petition for judicial review of the Board’s asylum
and removal order. After oral argument was heard in
No. 11-3081, the Board denied a motion to reconsider
that Zheng had filed in September 2011. Zheng then
filed a second petition for judicial review to challenge
the Board’s denial of reconsideration. The second peti-
tion was docketed in this court as No. 12-2566, deemed
a successive appeal to No. 11-3081, and submitted to
this panel. For the following reasons, the first petition is
granted and the second petition is denied as moot.
I. Background
In late 1998, when she was under the legal age for
marriage in China, Zheng became pregnant by her then-
boyfriend, who also was under age. The government
family planning office in Zheng’s region in Fujian
Province scheduled her for an appointment on Decem-
ber 15, 1998; after failing to appear, Zheng received
notice that she was scheduled for a pregnancy examina-
tion on January 15, 1999. Days before the scheduled
examination, family planning officials brought Zheng to
the hospital in Changle City, where she underwent an
abortion. Zheng left China shortly thereafter and entered
the United States on February 18, 1999. She later
married and had one child in July 2000 and another in
October 2005.
Nos. 11-3081 & 12-2566 3
Zheng filed an asylum application in July 2006. The
application claimed that Zheng had undergone a forced
abortion in Fujian and that she feared that, if returned
to China, she would be sterilized for having had two
children in the United States. Zheng was issued a notice
to appear on November 1, 2006. The notice charged her
as removable pursuant to 8 U.S.C. § 1227(a)(1)(A) for
lacking a valid entry document when entering the
United States.
On May 27, 2008, after a hearing, the immigration
judge delivered an oral ruling that denied Zheng’s ap-
plication for asylum and withholding of removal.
The judge held that Zheng had missed the one-year
deadline for filing an asylum application, 8 U.S.C.
§ 1158(a)(2)(B), and did not qualify for any exception
to the deadline, id. § 1158(a)(2)(D). The judge held in
the alternative that even if the birth of Zheng’s second
child was a circumstance that allowed for an exception
to the one-year deadline, asylum would have been
denied on the merits because the birth of two children
in the United States does not give rise to a well-founded
fear of future persecution and thus does not establish
eligibility for asylum.
With respect to withholding of removal, the immigra-
tion judge found that Zheng had not shown that it was
more likely than not that, due to the birth of her two
children in the United States, she would be persecuted
upon her return to China by means of forced sterilization
or otherwise. To support that finding, the judge cited
the State Department’s 2007 Country Profile of Asylum
4 Nos. 11-3081 & 12-2566
Claims and Country Conditions for China (“2007 Country
Profile”), which the judge read to say that neither the
national nor provincial governments in China mandated
the sterilization of parents of two children if at least
one child was born abroad. The report acknowledged
that children born abroad could be excluded from free
public education and other social services, which led
the judge to recognize that Zheng’s children, if they
returned with her to China, could face economic hard-
ships. But this, the judge concluded, did not rise to the
level of persecution warranting withholding of removal.
The immigration judge also denied Zheng’s request for
withholding of removal based on her claim to have suf-
fered past persecution in China, finding that her testi-
mony regarding her alleged persecution was not
credible given various inconsistencies in her account of
what had happened to her in China.
Zheng appealed, and the Board of Immigration
Appeals dismissed the appeal on August 24, 2011. The
Board assumed for the sake of argument that Zheng’s
application was either timely filed or subject to a valid
exception to the filing deadline. On the merits, the
Board affirmed the immigration judge’s findings that
Zheng had not been subject to past persecution and that,
if returned to China, she would not face a reasonable
possibility of being forcibly sterilized or otherwise perse-
cuted for having had two children without permission
while in the United States.
On the latter point, the Board read the 2007 Country
Profile to say that central government policy prohibited
Nos. 11-3081 & 12-2566 5
the use of physical coercion to compel persons to
submit to abortion or sterilization, and also to say that
consular officials visiting Fujian Province had not found
any cases of such physical coercion. While acknowl-
edging that there “undoubtedly” had been some
instances of forced abortion and sterilization imposed on
the parents of children conceived and born in China,
the Board stated that “the issue before us in this case
is different because the children involved were born in
the United States, and hence are citizens of this country,”
and found that Zheng’s evidence “does not document
any instance where enforcement measures rising to the
level of persecution have been imposed on the parents
of children who are United States citizens.” And while
the Board also acknowledged that violators of China’s one-
child policy had been fined, it found that enforcement
of the policy in Fujian Province had been “lax” and
“uneven,” that couples unable to pay the fine immedi-
ately are allowed to pay in installments, and that Zheng,
having lived in the United States for several years, had
not established that she would be unable to pay such a
fine or that such a fine would rise to the level of persecu-
tion.
For these reasons, the Board concluded that Zheng
had failed to satisfy her burden of showing an entitle-
ment to asylum. Given this, the Board also held that
Zheng had failed to satisfy the higher standard required
for withholding of removal.
6 Nos. 11-3081 & 12-2566
II. Discussion
Because the Board “agreed with the [immigration judge]
and supplemented his opinion with additional observa-
tions of its own[,] . . . we review the [immigration judge’s]
decision wherever the Board has not supplanted it with
its own rationale,” and “where the Board has spoken,
we review its opinion.” Sarhan v. Holder, 658 F.3d 649, 653
(7th Cir. 2011); see also Juarez v. Holder, 599 F.3d 560, 564
(7th Cir. 2010) (“When . . . the BIA agrees with the IJ’s
decision but supplements the IJ’s decision with its own
explanation for rejecting the appeal, we review the IJ’s
decision as supplemented by the BIA’s reasoning.”). Our
task is to review the denial of relief for substantial evi-
dence, which means that we should deny the petition
for review if the Board’s decision “is ‘supported by rea-
sonable, substantial, and probative evidence on the
record considered as a whole.’ ” Moab v. Gonzales, 500
F.3d 656, 660 (7th Cir. 2007) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)).
To prevail, an applicant for asylum must show that
she is a “refugee,” meaning a person “who is unable or
unwilling to return to … [her] country because of persecu-
tion or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
Forced abortion or sterilization, or persecution for resis-
tance to coercive population control policies, constitutes
persecution on the basis of political opinion. See ibid. (“[A]
person who has been forced to abort a pregnancy or
to undergo involuntary sterilization, or who has been
Nos. 11-3081 & 12-2566 7
persecuted 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 [persecution] shall be deemed to have
a well founded fear of persecution on account of political
opinion.”); Ping Zheng v. Holder, 701 F.3d 237, 241 (7th
Cir. 2012); Shi Chen v. Holder, 604 F.3d 324, 330-31
(7th Cir. 2010). “If [an applicant] establishes that [she]
suffered past persecution for a protected reason, a pre-
sumption arises that [she] also has a well-founded fear
of future persecution for the same reason.” Yi Xian Chen
v. Holder, 705 F.3d 624, 628 (7th Cir. 2013). If an applicant
does not establish past persecution, she must show that
her fear of future persecution is “subjectively genuine
and objectively reasonable.” Bolante v. Mukasey, 539 F.3d
790, 794 (7th Cir. 2008). To carry her burden of proof as
to objective reasonableness, an applicant must present,
“either through the production of specific documentary
evidence or by credible and persuasive testimony . . . [,]
specific, detailed facts showing a good reason to fear that
he or she will be singled out for persecution.” Ibid.; see
also Hassan v. Holder, 571 F.3d 631, 643 (7th Cir. 2009).
We assume for the sake of argument that the Board
was correct to conclude that Zheng had not demon-
strated past persecution on account of violating China’s
family planning policies. With respect to whether
Zheng demonstrated “a subjectively genuine and objec-
tively reasonable” fear of future persecution, Bolante,
539 F.3d at 794, the Board did not dispute, and the gov-
ernment does not deny here, that Zheng’s fear is subjec-
8 Nos. 11-3081 & 12-2566
tively genuine, and the record plainly supports Zheng
in this regard. Zheng’s first petition for review therefore
turns on whether she has established an objectively
reasonable fear of sterilization or other persecution
based upon her giving birth to two children while
living in the United States.
In Chun Hua Zheng v. Holder, 666 F.3d 1064 (7th Cir. 2012),
we considered “how China nowadays administers its one-
child policy … 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.” Id. at 1067. We noted
that reports by the Australian Refugee Review Tribunal
had found that “forced sterilizations and abortions are
not official provincial (or national) policy in China and
appear to have become rare.” Ibid. We further noted that,
“[a]ccording to the State Department, Fujian is not one
of the provinces that require termination of pregnancy
if the pregnancy violates provincial family-planning
regulations, but instead merely require[s] unspecified
remedial measures to deal with unauthorized pregnan-
cies.” Id. at 1068 (internal quotation marks omitted, second
alteration in original). And we observed that “[c]ouples
returning to China with children born abroad may be
fined” and that “these fines (called ‘social compensation
fees’) are stiff—often beyond the violators’ ability to
pay,” but that “we don’t know what happens if they
don’t pay.” Ibid. (citations omitted). On that particular
record, we held that the petitioner had failed to
Nos. 11-3081 & 12-2566 9
establish that it was more likely than not that she would
be persecuted if she were returned to China. Ibid.Two more recent decisions, however, have brought to
light evidence that casts doubt upon the proposition,
central to the Board’s decision in this case, that Fujian
authorities do not count children born outside of China
for purposes of the one-child policy. In Ni v. Holder,
715 F.3d 620 (7th Cir. 2013), the petitioner, a Chinese
citizen from Fujian, was ordered removed in 2003, man-
aged to remain in the United States, and moved to
reopen his removal proceedings in 2011 after the birth
of his second child. The Board denied the motion to
reopen, holding that Ni’s evidence was insufficient to
establish a change in circumstances or country conditions.
We granted Ni’s petition for review and remanded,
reasoning that the Board had failed to properly account
for numerous official provincial and local documents of
record indicating that conditions “in and around Ni’s
small hometown of Guantou Town have since worsened”
with respect to enforcement of the one-child policy.
Id. at 626 (citations omitted). (Guantou Town is geographi-
cally proximate to Changle City, the area of Fujian Prov-
ince where Zheng resided.) We did not require the
Board to grant Ni relief; rather, noting that “the BIA’s
opinion does not demonstrate that it reviewed and con-
sidered all of Ni’s evidence,” we “conclude[d] that
further proceedings [before the Board] are necessary
before Ni’s petition for review can properly be assessed.”
Id. at 630; see also ibid. (“In closing, we note that we
make no prediction on the ultimate outcome of Ni’s
10 Nos. 11-3081 & 12-2566
motion to reopen or his application for asylum. But he
is entitled to have the expert agency, the BIA, evaluate
in a transparent way the evidence that he has presented.”).
The second decision is Qui Yun Chen v. Holder, 715
F.3d 207 (7th Cir. 2013). Like the petitioner in this case,
Chen was the mother of two children born to her in the
United States. Id. at 208. And as in this case, the Board
denied Chen’s application for asylum based in large part
on its reading the 2007 Country Profile to suggest that the
risks of forcing individuals like Chen to return to Fujian
were not significant. Id. at 209-10. We held that the
Board had over-read and placed undue reliance on the
2007 Country Profile, and also that it had ignored
other materials, such as the Congressional-Executive
Commission on China Annual Reports (available at
http://www.cecc.gov), indicating that Fujian authorities
enforce China’s one-child policy far more vigorously
than the Board had supposed. Ibid. We noted in
particular that one such document, which we called
the “Robert Lin” document, “cuts the ground out from
under what the Board called the ‘key aspect of the
case’—that because Chen’s children were born abroad,
she is in no danger of being forced to undergo steriliza-
tion.” Id. at 212. The materials of which the Board did not
take account, we concluded, resulted in “considerable
uncertainty about the application of the one-child policy,
and about the sanctions for violating it when a second
or subsequent Chinese child is born abroad.” Id. at 214.
We accordingly granted Chen’s petition, vacated the
Board’s order, and remanded to the Board for it to recon-
sider Chen’s application in light of those materials. Ibid.Nos. 11-3081 & 12-2566 11
There is no sound basis for us to resolve Zheng’s peti-
tion for review differently from the petitions for review
in Ni and Chen. Cf. Njuguna v. Ashcroft, 374 F.3d 765, 771
n.4 (9th Cir. 2004) (“The INS must give each asylum
case individualized scrutiny, but it is a foundation of
the rule of law that similarly situated individuals be
treated similarly.”). Accordingly, Zheng is entitled to
have the Board reconsider her application in light of
the materials referenced in those two decisions.
III. Conclusion
For the foregoing reasons, Zheng’s first petition for
review is granted. The decision of the Board of Immigra-
tion Appeals denying Zheng’s application for asylum
and withholding of removal is vacated and the matter
is remanded for a reevaluation of Zheng’s applica-
tion in light of the evidence referenced in Ni and Chen.
This disposition renders moot Zheng’s second peti-
tion for review, which challenges the Board’s denial
of her motion to reconsider the decision denying her
application.
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