Zhu v. Ashcroft, 02-61098.

• Decision Date: 19 August 2004
• Docket Number: No. 02-61098.,02-61098.
• Citation: 382 F.3d 521
• Parties: Yuqing ZHU, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

382 F.3d 521

Yuqing ZHU, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.

No. 02-61098.

United States Court of Appeals, Fifth Circuit.

August 19, 2004.

Brian K. Bates (argued), Quan, Burdette & Perez, Houston, TX, for Petitioner.

Jennifer Paisner (argued), David V. Bernal, Richard M. Evans, Asst. Director, Thomas Ward Hussey, Dir., Susan Houser, U.S. Dept. of Justice, Civ. Div., Imm. Lit., Washington, DC, Hipolito Acosta, U.S.INS, Houston, TX, Caryl G. Thompson, U.S.INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.^*

DeMOSS, Circuit Judge:

Petitioner Yuqing Zhu is a native and citizen of China. She entered the United States legally on a business visitor's visa and received various visa reclassifications and extensions until the Immigration and Naturalization Service ("INS") terminated her legal status in April 2000. Zhu then applied for asylum and withholding of removal and her case went before an Immigration Judge ("IJ"). The IJ denied her petition. Zhu appealed to the Board of Immigration Appeals ("BIA"). The BIA affirmed "without opinion, the result of the decision below." Zhu filed a timely petition for review of the BIA decision and also filed with the BIA a motion to reconsider. The BIA denied Zhu's motion. She now appeals the BIA's affirmance without opinion of the IJ's denial of her asylum petition and request for withholding of removal. We vacate the BIA's decision and remand to the BIA.

BACKGROUND

Yuqing Zhu is a native and citizen of China. She entered the United States legally in October 1997 on a business visitor's visa. Zhu received various visa reclassifications and extensions until the INS terminated her legal status in April 2000.

Zhu applied for asylum in October 2000, after which the INS referred her to an immigration court. The INS issued a notice to appear in December 2000, in which Zhu was charged with a failure to comply with the conditions of her visa. Zhu admitted to the charges in the notice. In fact, it appears that it was because of Zhu's own honest indications to the INS that she was not employed or a student sufficient to establish eligibility for a work or student visa because she was busy raising her child that began the process of terminating her legal status in the United States. Based on her admissions, Zhu was ordered removable as charged. She thereafter applied for asylum, withholding of removal, relief under the Convention Against Torture (CAT), and, alternatively, for voluntary departure.

In an affidavit attached to her application for asylum, Zhu attested that she had an abortion in 1994. Zhu stated: "Although I was not physically forced to do so, I had no real choice." Zhu explained that childbirth out of wedlock is illegal in China and carries consequences. She described the abortion as traumatic.

An IJ held a hearing. Zhu testified to the following. In 1994, while living in China, in the province of Zhejiang, Zhu became pregnant by her boyfriend. She was unmarried. She and her boyfriend would not have been allowed to marry because she would have been forced to undergo a medical examination. Zhu elected to have an abortion because China's family planning policies prohibited single women from having children, and she would have ended up in jail had she given birth. Zhu traveled to a remote town where no one would recognize her to have the abortion. Zhu feared being recognized because "this is a punishable matter."

Zhu was three months' pregnant when she had the abortion. Her boyfriend made the arrangements. She was not given anesthesia for the three-and-a-half-hour procedure, and she had to be held down. Because of the pain, Zhu asked that the procedure be stopped. Zhu saw the fetus, which was already formed, cut up and placed in the trash.

Later, but while still in China, Zhu had a relationship with a "Mr. Wong," and she discovered he was married but he wanted to continue the relationship. In September 1997, while still in China, Zhu found out that she was pregnant again—this time by "Mr. Wong." Wong became angry about the pregnancy and wanted her to have an abortion because he did not want any issues with his family, friends, or political party. Zhu feared having an another abortion because of her prior experience. Additionally, she had an ovary removed in 1997 and was concerned that an abortion would affect her health.

Zhu believed that Chinese law required her to abort the child. She also believed that had she stayed in China she would have been denied medical treatment and would have been forcibly sterilized. She also believed she would lose her job with its benefits and her housing. Were she to have the child, the child would not have been recognized as a citizen and, therefore, would have been refused admission to school and medical treatment. Zhu decided to try to come to the United States where she could have the baby.

Through her work, Zhu requested the opportunity to study in the United States and because she scored well on her employer's testing she was granted the opportunity. Zhu entered the United States on a business visitor's visa in October 1997 with three months' authorized stay. Zhu extended her business visitor's visa for six months, then received student and work visas. Her daughter was born in the United States in May 1998. Zhu, however, did not work after June 1999 because her daughter's health was not good at that time. Zhu did not file her asylum application within one year of her arrival in the United States because she was busy studying and caring for her child and her legal visa status kept getting extended. When her legal status was terminated in April 2000, it appears Zhu contacted several attorneys and looked into applying for asylum and ultimately applied by October 2000.

On cross-examination, Zhu testified that on her application for asylum she stated that she did not know anyone in the United States when she arrived but that Jiang Wang, the father of her child, was living in the United States.¹ Zhu maintained that she had not seen Wang since coming to the United States and that he had not given her any money. Zhu testified that upon her arrival in the United States she moved in with Chen Fen Wang, a different person. Zhu listed on an INS form relative to her status as a student that her means of financial support while a student was from "Friend/Jun Wang." Zhu testified that she never accepted money from Jiang Wang, the child's father, and that she paid for her schooling herself.

Zhu introduced into evidence a newspaper article relative to China's family planning policy. On cross-examination it was brought out that the Chinese official quoted in the article stated that there is no forced abortion in China and that children born out of wedlock are not discriminated against by officials, but that the woman are ridiculed and scorned for what is considered their selfish and irresponsible act of getting pregnant.

The INS submitted reports and articles on the conditions in China. Included was a "1999 Department of State Country Report on Human Rights Practices for China," which stated the following. "Unmarried women cannot get permission to have a child." "Population control policy relies on education, propaganda, and economic incentives, as well as on more coercive measures, including psychological pressure and economic penalties." People who comply with China's family planning regulations receive financial rewards such as monthly stipends, preferential medical and educational benefits, and old-age insurance. The penalties for violating the family planning regulations include fines, withholding of social services, or other administrative punishments that sometimes result in the loss of employment. In the province of Zhejiang, where Zhu was from, violators are assessed a fine of 20 percent of the parents' salary, assessed over five years. The report further stated that "[c]entral government policy formally prohibits the use of force to compel persons to submit to abortion or sterilization," although there were some documented instances in which family planning officials used coercion, including forced abortion and sterilization, to meet family planning goals. The report stated that during an unauthorized pregnancy a woman may be visited by family planning workers and pressured to terminate the pregnancy.

The IJ determined that Zhu was removable as charged. In reaching its decision, it is not clear what the IJ relied on; but it appears the IJ considered Zhu's application, her testimony, the country reports submitted by the INS, and the IJ's own personal feelings about out-of-wedlock pregnancies and unwed motherhood. The IJ considered Zhu's application for asylum contemporaneously as an application for withholding of removal.

The IJ found Zhu to be credible, stating that her "testimony generally tracked most of the information that she presented with her application for political asylum." The IJ also noted, however, that Zhu's credibility was clouded because she revealed only under cross-examination that the father of her child was in the United States.

The IJ determined as an initial matter that Zhu's application for asylum was untimely because she had one year from her arrival in the United States to file it. The IJ noted that the regulations had changed to permit Zhu to file the application within a "reasonable" amount of time from her arrival if she could show extraordinary circumstances. The IJ determined Zhu's application was not filed in a reasonable amount of time given that Zhu's authorization to stay in the United States was adjusted several times and that she waited more than six months after the INS denied her last request for an extension to file the application. The IJ held this despite the fact that Zhu had apparently spent those six...