Zheng v. Ashcroft

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAO LAN ZHENG,  No. 03-70087
Petitioner,
v.  Agency No.
A77-169-033
JOHN ASHCROFT, Attorney General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 10, 2004—Pasadena, California
Filed September 2, 2004
Amended February 15, 2005
Before: Thomas G. Nelson, A. Wallace Tashima and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
The opinion filed at 382 F.3d 993 is amended in full as
follows:
1889
ZHENG v. ASHCROFT 1893
COUNSEL
David Z. Su, El Monte, California, for the petitioner.
Robbin K. Blaya, United States Department of Justice, Office
of Immigration Litigation-Civil Division, Washington, D.C.,
for the respondent.
OPINION
FISHER, Circuit Judge:
Xiao Lan Zheng, a citizen of the People’s Republic of
China, petitions for review of the denial of his applications for
asylum and withholding of removal. He claims that local Chi-
nese officials forced his wife, Xiu Qin Wen, to abort their first
child because they had not reached the legal age for marriage
and were not authorized to have a child. Furthermore, he
claims that the officials fined the couple for violating family
planning polices and instructed one of them to report for ster-
ilization after Wen’s second pregnancy. The Immigration
Judge (“IJ”) found that Zheng was not credible, and the Board
of Immigration Appeals (“BIA”) summarily affirmed. We
grant the petition for review because substantial evidence
does not support the IJ’s adverse credibility finding. We con-
clude, therefore, that Zheng is automatically eligible for asy-
lum, and remand to the BIA to exercise its discretion whether
to grant Zheng asylum and to determine in the first instance
whether Zheng is eligible for withholding of removal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Zheng testified before the IJ to the following events. He
was born in the town of Lunchen in Fuqing city, which is
1894 ZHENG v. ASHCROFT
located in the southeastern province of Fujian. On May 1,
1992 when Zheng was 21 years old, he married Wen who was
19 at the time. They were each respectively one year shy of
the legal age for marriage. They had a small, traditional Chi-
nese wedding ceremony but did not apply for a marriage cer-
tificate because they were underage. When Wen was five
months pregnant, birth control officials forcibly took her from
Zheng’s family home in Lunchen on October 7, 1992 to have
an abortion. Zheng was not home at the time and was working
in a different town within Fuqing City. He heard about the
incident from his wife’s brother the next morning and went
home immediately. By the time he arrived home in the after-
noon, Wen had already returned from the hospital. She told
him that the officials had come to their house late in the eve-
ning, taken her to a government building and held her there
along with other pregnant women until they took her to the
hospital for the abortion the next morning.
Three days later, a town official came to their house and
told Zheng that they had to pay a fine of 20,000 RMB1 for an
early marriage and unauthorized pregnancy. They did not pay
the fine because of their limited income and because they did
not believe they should have to pay the fine after Wen already
had been forced to undergo the abortion. Zheng and Wen col-
lectively earned 6,000 RMB annually, with Zheng working as
a painter and a bulldozer operator and Wen sewing in a fac-
tory. In April 1994, after they had reached the legal age for
marriage, they went to the town government office to apply
for a marriage certificate but were denied because they had
not yet paid the 20,000 RMB fine.
Around October of that year, they discovered that Wen was
pregnant again. Because they were afraid that the officials
would find out that she was pregnant, they went into hiding
in Wen’s uncle’s house in the town of Funlu. In March 1995,
they moved out of her uncle’s house but did not return to
1
RMB denotes currency in RenMinBi.
ZHENG v. ASHCROFT 1895
Zheng’s home in Lunchen, instead renting a room in Funlu.
Their daughter, Yun Zheng, was born on August 15, 1995. In
October, after birth control officials learned of the birth of
their daughter, an official paid a visit to Zheng’s family home
in Lunchen and told Zheng’s parents to ask Zheng or Wen to
go to the government office to be sterilized. They were
assessed a second fine of 20,000 RMB because they did not
have a marriage certificate or authorization for the birth of
their daughter.
In April 1999, Zheng left China for the United States by
boat, and a month later, the American Coast Guard inter-
cepted and detained him in Guam. The Immigration and Natu-
ralization Service initiated removal proceedings against him,
and he applied for asylum, withholding of removal under INA
§ 241(b)(3) and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“Convention Against Torture”),
opened for signature Feb. 4, 1985, art. 3, S. Treaty Doc. No.
100-20 at 20 (1998).
In addition to testifying at his hearing to the events above,
Zheng offered into evidence his daughter’s birth report, his
own notarized birth certificate and a letter from Wen describ-
ing what happened the evening she was taken away. Zheng
testified that Wen, who was still in China, took the birth
reports to the town government office some time in 2000 to
get them authenticated, but the office refused to certify them.
Nonetheless, the IJ admitted the documents into evidence.
The government also offered into evidence the State Depart-
ment’s 1999 Country Reports on Human Rights Practices (the
“Country Report”) and its 1998 Profile of Asylum Claims and
Country Conditions for China (the “Country Profile”).
The IJ found that Zheng was not credible because (1)
Zheng’s testimony that the couple was forced to abort their
first child was inconsistent with the Country Report and Pro-
file, which stated that families are permitted to have one child
1896 ZHENG v. ASHCROFT
and maybe two if the first is a female; (2) Zheng’s testimony
about the amount of the fine for their early marriage and
Wen’s unauthorized pregnancy was inconsistent with the
amount described in the Country Profile; (3) Zheng’s testi-
mony was not detailed; (4) his testimony was inconsistent
with Wen’s letter about the time when the birth control offi-
cials took Wen away for the abortion; (5) it was unlikely that
Wen would go to the local authorities to get Zheng’s birth
certificate and Yun’s birth report certified and yet be afraid to
go to other Chinese officials in order to seek further certifica-
tion; and (6) it seemed unlikely that both Zheng and Wen
would be subjected to sterilization. Accordingly, the IJ denied
Zheng’s application for asylum.
The IJ stated that because Zheng had “failed to satisfy his
burden regarding asylum,” he would “not reach the issue of
whether or not [Zheng] merits a grant of withholding under
[INA] Section 241(b)(3).” The IJ, however, denied Zheng’s
request for withholding of removal in his final order.2 The IJ
also found that Zheng had failed to satisfy his burden of proof
for protection under the Convention Against Torture. The
BIA affirmed the IJ’s decision without opinion.
II. STANDARD OF REVIEW
Given the BIA’s summary affirmance, we review the IJ’s
decision as if it were the BIA’s decision. See Cedano-Viera
v. Ashcroft, 324 F.3d 1062, 1063 n.1 (9th Cir. 2003). We
review the IJ’s adverse credibility finding under the substan-
tial evidence standard. Chen v. Ashcroft, 362 F.3d 611, 617
(9th Cir. 2004). To determine whether substantial evidence
2
Given the IJ’s final order, we take the IJ’s prior statement to mean that
because Zheng had failed to satisfy his burden regarding asylum, Zheng
also failed to meet the more stringent burden for withholding of removal,
see Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995), not that the IJ would
not reach the issue of whether Zheng was entitled to withholding of
removal. Thus, we conclude that the withholding issue is properly before
us.
ZHENG v. ASHCROFT 1897
supports the IJ’s finding, we “evaluate each ground cited by
the [IJ] for [his] finding.” Wang v. Ashcroft, 341 F.3d 1015,
1021 (9th Cir. 2003).
III. CREDIBILITY
A. Inconsistencies with the Country Report and Profile
[1] The IJ may consider the State Department’s reports in
evaluating a petitioner’s credibility. See Duarte de Guinac v.
INS, 179 F.3d 1156, 1162 (9th Cir. 1999). The IJ may use a
country report as “supplemental” evidence to discredit “a gen-
eralized statement” made by the petitioner but “not to dis-
credit specific testimony regarding his individual experience.”
Chebchoub v. INS, 257 F.3d 1038, 1043-44 (9th Cir. 2001)
(upholding the BIA’s reliance on the country report’s state-
ment that there were no known instances of enforced exile in
Morocco and that the Moroccan government offered self-
imposed exiles amnesty, to refute the petitioner’s statement
that the government commonly forced political dissidents to
leave Morocco and to sign a document promising never to
return). The IJ, however, may not discredit a petitioner’s testi-
mony based on a statement in a State Department report that
is itself based on speculation or conjecture. See Shah v. INS,
220 F.3d 1062, 1069 (9th Cir. 2000) (stating that the State
Department’s assertion that “[an Indian political party’s]
many electoral successes belie the assertion that it is not pos-
sible for a [member of that political party] to live peaceably
in India” amounted to “nothing more than that office’s specu-
lation about the effect [that political party’s] electoral gains
will have on existing political persecution”). Moreover, as a
predicate, the petitioner’s testimony must be inconsistent with
facts contained in the country report or profile before the IJ
may discredit the petitioner’s testimony. We conclude that
there are no inconsistencies here.
1898 ZHENG v. ASHCROFT
1. Forced abortion of first child
The IJ found that the Country Report and Profile were
inconsistent with Zheng’s testimony that Wen was forced to
abort their first child. Specifically, the IJ stated,
The Country Reports and the Profile are devoid of
any reports regarding a couple required to undergo
an abortion when they had no children at all. In fact,
the Country Reports seem inconsistent with
[Zheng’s] rendition of the facts . . . in that the first
child is allowed, and it is only after one child has
been born and a second child is anticipated that an
abortion might become probable. In fact, since
[Zheng’s] first child was a daughter it seems further
unlikely that he and his wife would have been
required to undergo an abortion since the policy
seems to be that they would be permitted to apply for
a second child.
The IJ relied on the following description of family planning
policies in Chinese urban areas:
Fujian Province — The policy is generally a one-
child policy. However, in some southern urban areas,
if the parents’ first child is female, they may apply
after a set number of years (usually 4) to conceive a
second child in the hope that it will be male. Fujian
province’s lax enforcement of family planning rules
has been criticized in the official press.
Country Profile at 21.3
3
The IJ also relied on a similar description in the Country Profile
regarding family planing policies in rural areas of China. See Country
Profile at 22. However, Zheng testified that Lunchen was in an urban area.
Thus, the Country Profile’s description of family planning policies in rural
areas, without more, cannot support the IJ’s finding of an inconsistency.
ZHENG v. ASHCROFT 1899
[2] However, this policy does not necessarily apply to cou-
ples who are not legally married. Rather, different rules apply
to unmarried couples. For instance, the Country Report says,
“Unmarried women cannot get permission to have a child.”
See Country Report, available at http://www.state.gov/www/
global/human_rights/1999_hrp_report/china.html (last visited
July 14, 2004). Thus, even though married couples are permit-
ted to have one child and maybe even two if their first child
is a girl, unmarried couples are not permitted to have any.
Because Zheng and Wen were not legally married, the town
officials may have prohibited them from having any children,
essentially treating them as an unmarried couple. Moreover,
the Country Report states, “The U.S. Consulate General in
Guangzhou is not aware of any forced abortions of . . . chil-
dren of couples with an early marriage (but could not exclude
the possibility).” Because the Country Report explicitly
acknowledges the possibility of such a forced abortion,
Zheng’s testimony that Wen was forced to abort their child is
not inconsistent with that report.
Furthermore, according to the Country Report and Profile,
China does not have a uniform family planning policy across
the country. Rather, these policies vary from region to region
and township to township because they are implemented
through local regulations. See Country Report (“The national
family planning policy is implemented through provincial and
local regulations.”); Country Profile at 21 (“Family planning
committees are generally in place down to the township level,
but implementation at the village level, which is relevant to
most asylum applicants, is the responsibility of local offi-
cials.”). Although the Country Profile tries to capture some of
the variation from locality to locality by breaking up its
descriptions into regions, it is not so comprehensive as to
describe the polices and practices in each city, let alone each
township or village. Thus, the policies described in the Coun-
try Report or Profile for each region must be read in light of
local variation in policies.
1900 ZHENG v. ASHCROFT
[3] The Country Report and Profile also acknowledge that
abuses occur and corrupt officials may deviate from the offi-
cial policy. For instance, the Country Profile says, “The Gov-
ernment prohibits the use of force to compel a person to
submit to abortion or sterilization,” but later states, “Poor
supervision of local officials who are under intense pressure
to meet family planning targets sometimes results in abuse
such as forced abortion and sterilization.” Country Profile at
25. Similarly, the Country Report says, “In a meeting with
foreign diplomats, [a] senior official did not deny that abuses
may have occurred, but insisted that coercion was not the
norm, nor government policy . . . .” Therefore, regardless of
what the official policy may be in a particular township
regarding the number of children a couple is allowed to have,
it is possible that corrupt officials may deviate from that pol-
icy and force a couple to abort their child even if the couple
has not surpassed the legally permissible number of children.
In sum, when read in proper context, the Country Report and
Profile are not inconsistent with Zheng’s testimony that Wen
was forced to undergo an abortion.4
2. Amount of fine for unauthorized child
The IJ found an inconsistency between Zheng’s testimony
about the amount of fines levied against him and the amount
described in the Country Profile. The IJ stated, “[I]t seems
4
To the extent the IJ’s statement that it is “unlikely that [Zheng] and his
wife would have been required to undergo an abortion” because their “first
child was a daughter” can be read as referring to Wen’s abortion in 1992,
it is logically flawed. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002)
(“[W]e . . . determine whether the reasoning employed by the IJ is fatally
flawed.”). Although Zheng’s and Wen’s first born child in 1994 was a
girl, the record neither indicates the gender of the first unborn child in
1992 nor shows that the local officials knew the gender of the fetus before
they took Wen away for the abortion. That Zheng and Wen’s child in 1994
was a girl could not have affected whether Wen would have been required
to undergo an abortion in 1992 before their daughter had even been con-
ceived.
ZHENG v. ASHCROFT 1901
that the policy is for a one time fine of twenty to forty percent
of their annual income. [Zheng] testified that he and his wife
were fined 20,000 RMB. That seems like an exorbitant
amount considering the fact that [Zheng] testified that his
annual income was simply no more than 6,000 RMB.”
The IJ relied on a description in the Country Profile under
the subheading “Zhejiang Province,” which states, “[C]ouples
that are not underage but cohabit and have an unauthorized
child are liable to a one-time fine of 20 to 40 percent of their
annual income.” Country Profile at 23 (emphasis added). By
its plain language, this passage does not describe the fine for
couples who are underage. Thus, it is not inconsistent with
Zheng’s testimony because Zheng and Wen were an underage
couple. Nonetheless, under the same subheading, the Country
Profile previously states, “If [couples under the legal age for
marriage] have a child they are liable to a fine of between 20
and 50 percent of their annual income until they legally regis-
ter their marriage.” Id. A fine of 20,000 RMB would still be
significantly greater than 20 to 50 percent of Zheng’s and
Wen’s annual income.
[4] The subheading, however, indicates that the descrip-
tions quoted above are referring to the amount of the fine in
Zhejiang province, not Fujian province. Because family plan-
ning policies can vary significantly from region to region in
China, the Country Profile’s description of the fine amount in
Zhejiang province does not create an inconsistency with
Zheng’s testimony because Zheng lived in Fujian province.
[5] Indeed, the Country Report and Profile describe much
higher fines in Fujian. Under the subheading “Fujian Prov-
ince,” the Country Profile says, “The standard fine is twice a
family’s gross annual income.” Country Profile at 26. The
Country Report gives an even higher amount: “In Quanzhou,
Fujian province, the fine for violating birth quotas is three
times a couple’s annual salary . . . .” A fine of 20,000 RMB
is roughly three times Zheng’s and Wen’s combined annual
1902 ZHENG v. ASHCROFT
salary of 6,000 RMB. The amount of Zheng’s fine and the
amount described in the Country Report and Profile are not
significantly different.
To the limited extent that the amounts differ, Zheng’s testi-
mony is not inconsistent with the Country Report and Profile
because they contain two other facts that could reasonably
account for the difference in amount. First, the Country
Report acknowledges that family planning fines vary depend-
ing on locality. See Country Report (“Fines for giving birth
without authorization vary . . . .”). Thus, the fine amount in
the town of Lunchen could be slightly higher or lower than in
other towns or cities in Fujian province. Second, the Country
Report recognizes that family planning fines are subject to
abuse by corrupt officials. See id. (“Corruption related to fam-
ily planning fines is a widespread problem.”). Hence, corrupt
town officials may have demanded that Zheng and Wen pay
a fine higher than the amount authorized by local regulations.
3. Sterilization of both Zheng and Wen
The IJ found it “unlikely that both [Zheng] and his wife
would be subjected to sterilization,” reasoning that “the policy
in China for a couple who have had more than one child [is]
that one of the couple be sterilized.” According to the Country
Profile, “there is no requirement that a specific member of the
couple have the appropriate sterilization procedure, but gener-
ally it is the women who have the procedure performed.”
Country Profile at 24. However, Zheng’s testimony is not
inconsistent with the Country Profile, because Zheng never
testified that both he and Wen were required to be sterilized.
Rather, he testified that town officials told his parents to “ask
myself or my wife to go to the office and be sterilized.”
(Emphasis added). The government concedes that the IJ mis-
stated Zheng’s testimony.
ZHENG v. ASHCROFT 1903
B. Lack of detail
[6] The IJ remarked that Zheng’s “testimony was not terri-
bly detailed.” The IJ did not elaborate further or identify any
examples of how Zheng’s testimony lacked detail. On the
contrary, Zheng’s testimony in the record was fairly detailed.
He recalled the dates of all the relevant events and even the
time of day regarding major events, such as when he arrived
home after he learned about Wen’s forced abortion. He identi-
fied specific locations and addresses of where they hid to
elude the birth control officials. Although Zheng did not
describe the 1992 abortion incident in great detail, he testified
that he was not at home when it happened. Even though he
did not witness the incident firsthand, he still conveyed sev-
eral details that he learned from his wife such as what time
Wen was taken, where she was taken to and the manner in
which the officials sedated her for the abortion.5 The IJ erro-
neously faulted Zheng for not providing further details. See
Akinmade v. INS, 196 F.3d 951, 957 (9th Cir. 1999) (“[T]he
IJ erroneously faulted [the petitioner] for not providing further
details about the location and manner of his arrest and his
mistreatment by the police”).
C. Inconsistency regarding time
[7] The IJ noted an inconsistency between Zheng’s testi-
mony and Wen’s letter regarding the time when officials took
Wen away for the abortion: “[Zheng] said that the birth con-
trol officials came to his house at 1:00 a.m. in the morning
and took his wife[,] [w]hereas the wife’s letter states that the
birth control officials came to his house about 11:00 p.m.”
Even assuming that the IJ is correct about the inconsistency
in time,6 a discrepancy of two hours is a minor inconsistency
5
Wen provided many more details about what happened in her letter.
6
When Zheng testified that “it was about 1:00 a.m.,” it is unclear
whether he was referring to the time that the officials came to his family
home or the time that Wen was being held in the government building
with the other women.
1904 ZHENG v. ASHCROFT
that cannot support an adverse credibility finding. See Vilorio-
Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988) (conclud-
ing that inconsistencies between petitioner’s and his cousin’s
testimony regarding the year when they were chased by a
right-wing death squad and how long they hid in a third man’s
home that evening were “minor inconsistencies” that were
“not an adequate basis for an adverse credibility finding”).
D. Implausibility of Wen’s authentication attempts
[8] The IJ expressed doubt as to the plausibility of Zheng’s
testimony due to an apparent inconsistency in his description
of how Wen attempted to get certain documents certified.
Specifically, the IJ stated,
[Zheng] testified . . . that his wife took [his birth cer-
tificate] and their daughter’s birth certificate to the
Chinese officials in a local town and was refused to
get them certified . . . . It seems inconsistent then
that she would go to the local authorities who were
the ones that allegedly persecuted her in the first
place and then be afraid to go to other Chinese offi-
cials in order to get them further certified.
Zheng did not testify, however, that there were other Chinese
officials who could have certified the documents or that Wen
was afraid to go to such officials. Thus, there is no inconsis-
tency in his testimony.
IV. REMAND
[9] Having held that the IJ’s adverse credibility finding is
not supported by substantial evidence, we must decide
whether to rule on Zheng’s eligibility for asylum and with-
holding of removal ourselves or whether to remand to the BIA
to make these determinations. When the BIA has not consid-
ered an issue, “the proper course, except in rare circum-
stances, is to remand to the agency for additional investigation
ZHENG v. ASHCROFT 1905
or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002)
(internal quotation marks omitted).
[10] “Under Ventura, when we reverse the BIA’s adverse
credibility determination, we must ordinarily remand the case
so that the BIA can determine whether the applicant has met
the other criteria for [asylum] eligibility.” He v. Ashcroft, 328
F.3d 593, 604 (9th Cir. 2003). However, we have recognized
that remand for a determination of asylum eligibility is not
necessary when the petitioner is “automatically eligible for
asylum” if his testimony is believed. Id.; see Ge v. Ashcroft,
367 F.3d 1121, 1127 (9th Cir. 2004); Wang, 341 F.3d at 1023.
A person whose spouse has been forcibly sterilized or forced
to have an abortion is automatically eligible for asylum. See
Ge, 367 F.3d at 1127; He, 328 F.3d at 604. Thus, if Zheng’s
testimony that Wen was forced to have an abortion of their
child is believed, he is necessarily eligible for asylum.
[11] It does not matter that Zheng and Wen are not legally
married under China’s restrictive marriage laws, because
those restrictions are “an integral part of China’s coercive
population control program.” Ma v. Ashcroft, 361 F.3d 553,
559 (9th Cir. 2004) (internal quotation marks omitted). Zheng
and Wen could not have obtained a marriage certificate at the
time of their wedding ceremony due to strict age requirements
for marriage in China. When Zheng and Wen reached the
legal age, the local officials refused to issue them a marriage
certificate because they had not paid their fines, which penal-
ized Zheng and Wen for getting married early and for having
unauthorized children. Because their marriage now is not
legally recognized due to “China’s coercive family planning
policies,” it would “contravene the fundamental purpose of
the [asylum] statute” to deny asylum to Zheng. Id. at 561.
Zheng is therefore eligible for asylum because of the forced
abortion of his child even though China does not recognize
his marriage to Wen. Accordingly, “remand for further pro-
ceedings to determine whether [Zheng] has met the criteria
for eligibility is simply unnecessary.” He, 328 F.3d at 604.
1906 ZHENG v. ASHCROFT
Thus, on remand the BIA should exercise its discretion
whether to grant asylum to Zheng.
[12] As to Zheng’s eligibility for withholding of removal,
in past cases involving coercive family planning policies, we
have remanded to the BIA to evaluate the future threat of per-
secution and whether to grant withholding on that basis. See
Ge, 367 F.3d at 1127 (remanding to the “BIA to determine,
in the first instance, whether there is a clear probability that
Ge would be persecuted if returned to China” where the offi-
cials had demanded that Ge’s parents produce him or his wife
for sterilization).
In reversing the IJ’s adverse credibility claim here, we have
concluded that petitioner’s wife was forced to have an abor-
tion and therefore suffered past persecution based on China’s
coercive family planning policies. See 8 U.S.C. § 1101(a)(42)
(treating forced abortions as past persecution). In turn, past
persecution based on a forced abortion gives rise to a regula-
tory rebuttable presumption that “the applicant’s life or free-
dom would be threatened in the future in the country of
removal on the basis of the original claim.” 8 C.F.R. § 208.16(b)(1)(i). See Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000)
(holding that once a petitioner has demonstrated past persecu-
tion, this supports “a presumption that the applicant has
shown a clear probability of future persecution so as to entitle
him to withholding of deportation”).
[13] As the parties did not brief the issue of withholding to
us on appeal in any detail, we remand to the BIA to decide
whether Zheng is entitled to withholding in light of his pre-
sumed future persecution. See In re C-Y-Z-, 21 I. & N. Dec.
915, 919 (BIA 1997) (granting withholding in a sterilization
case “because of the regulatory presumption of a well-
founded fear of future persecution that arises from a finding
of past persecution and the absence of changed country condi-
tions”); In re Y-T-L-, 23 I. & N. Dec. 601, 606 (BIA 2003)
(granting withholding in sterilization case after finding that a
ZHENG v. ASHCROFT 1907
sterilization and the passage of time did not rebut the pre-
sumption of future persecution because “[i]t is manifestly
clear that Congress intended to make eligible for asylum those
who were victims of China’s coercive family planning poli-
cies, not simply those who could be victims if returned to
China”).
[14] Accordingly, we remand to the BIA to exercise its dis-
cretion whether to grant Zheng asylum and to determine
whether Zheng is eligible for withholding of removal. See He,
328 F.3d at 604; cf. Ali v. Ashcroft, No. 03-71731, slip op. at
818 (9th Cir. Jan. 19, 2005).7
Petition GRANTED and REMANDED.
Petitions for rehearing on this amended opinion will be
considered.
7
Because Zheng has not sought review of the IJ’s order denying relief
under the Convention Against Torture, we need not decide whether
remand to the BIA would be necessary for a determination of eligibility
for relief under the Convention Against Torture.