Zhu v. Gonzales

Decision Date23 July 2007
Docket NumberNo. 05-60891.,05-60891.
Citation493 F.3d 588
PartiesYuqing ZHU, Petitioner, v. Alberto GONZALES, U.S. Attorney General, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Brian K. Bates (argued), Reina Bates Imm. Law Group, Houston, TX, for Zhu.

Gary Layton Anderson (argued), San Antonio, TX, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, Washington, DC, Trey Lund, U.S. Imm. & Customs Enforcement, Field Office Dir., Attn: Carl Perry, New Orleans, LA, Sharon A. Hudson, U.S. Citizenship & Imm. Services, Houston TX, for Respondent.

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

Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.

WIENER, Circuit Judge:

Petitioner Yuqing Zhu, a native and citizen of China, previously applied for asylum and withholding of removal, contending that she qualifies for both forms of relief, because she was subjected to a forced abortion in China. The Immigration Judge ("IJ") denied the application, concluding that Zhu's asylum application was untimely and that she was not forced to have an abortion but rather chose to do so voluntarily. The Board of Immigration Appeals ("BIA") affirmed without an opinion. In Zhu v. Ashcroft,1 we vacated and remanded to the BIA with instructions to clarify its holding. On remand, the BIA again affirmed, agreeing with the IJ and finding that the application was untimely and that Zhu "chose to have an abortion." Zhu then filed this petition for review of the BIA's order.

Although we do not have jurisdiction to review the decisions that Zhu's asylum application was untimely, we do to review the denial of her petition to review her application for withholding of removal — and we do so now. We conclude that Zhu's abortion was indeed forced, as a reasonable person in Zhu's position "would objectively view the threats for refusing the abortion to be genuine," and that harm, "if carried out, would rise to the level of persecution."2 Thus, as Zhu was subjected to past persecution, we presume that her "life or freedom would be threatened in the future in [China]."3 Accordingly, Zhu qualifies for withholding of removal as a matter of law. We reverse the judgment of the BIA regarding Zhu's entitlement to withholding of removal and remand to the BIA with instructions to enter an order withholding removal, in accordance with this opinion.

I. FACTS AND PROCEEDINGS

As the facts of this case are fully set forth in Zhu v. Ashcroft,4 we summarize them only briefly here. In 1994, while still in China, Zhu, who was unmarried, became pregnant by her boyfriend. Then, as now, China's family planning policies prohibited unmarried women from having children. Zhu and her boyfriend would not have been allowed to marry and thereby avoid that prohibition, because they would have been forced to undergo medical testing, which would have revealed her pregnancy and barred their marriage. The IJ credited Zhu's testimony that she believed that Chinese law required her to have an abortion; indeed, she had heard of one woman who had been forced to undergo an abortion in her ninth month of pregnancy. This is borne out by the 1999 State Department Country Conditions Report on Human Rights in China ["The 1999 Country Conditions Report"], which indicates that, although contrary to official government policy, forced and coerced sterilizations and abortions continue to occur, as family planning officials are under "intense pressure to meet family planning targets set by the Government."5 The IJ also credited Zhu's testimony that she believed that she might lose her job, its benefits, and her housing if she did not undergo an abortion. The 1999 Country Conditions Report states that

[d]isciplinary measures against those who violate policies can include fines (sometimes called a "fee for unplanned birth" or a "social compensation fee"), withholding of social services, demotion, and other administrative punishments that sometimes result in loss of employment. Fines for giving birth without authorization vary, but they can be a formidable disincentive.6

And the IJ credited Zhu's testimony that children born to unmarried women are not recognized as citizens, and are denied admission to school and refused medical treatment. In the face of all this governmental duress, Zhu concluded that she had no choice but to have an abortion. In 1997, Zhu became pregnant again. She did not want to have another abortion, because of the pain and loss she felt as a result of her first abortion, and because she was concerned about her health. Believing that she faced the possibility of imprisonment, fines, unemployment, abortion, and possibly even sterilization if she did not have an abortion, she decided to try to come to the United States, where she hoped to give birth. She obtained a business visa through her work, and entered the United States in October 1997. Her daughter was born in the United States in May 1998. Zhu received various extensions on her business visa, after which she received student and work visas. She stopped working in June 1999, and the Immigration and Naturalization Service ("INS") terminated her legal status in April 2000. In October 2000, she applied for asylum, withholding of removal, relief under the Convention Against Torture ("CAT"), and, only in the alternative, for a voluntary departure.

After a hearing in which Zhu testified, the IJ denied her application for asylum, withholding of removal, and relief under CAT. The IJ concluded that Zhu's application was untimely, as she had filed it more than a year after arriving in the United States. The IJ also held that she did not qualify for an exception to the one-year filing deadline. In so holding, the IJ stated that "filing the asylum application some 6-1/2 months after her nonimmigrant status . . . expired and some 3 years after her initial arrival in the United States is not reasonable." The IJ also addressed the merits of her claim, concluding that Zhu was credible, but that, as a matter of law, she had not been forced to have an abortion. Rather, ruled the IJ, she "voluntarily went to have the abortion upon the belief that she need[ed] to abide by the law and that she had no other way out, other than having an abortion." In so holding, the IJ temporized that Zhu had "to take responsibility for her own personal choices and her personal choice of having a child."7 The IJ ruled that Zhu was removable and granted Zhu voluntary departure. Zhu appealed to the BIA, and the BIA affirmed without an opinion.

On appeal, we vacated the BIA's dismissal and remanded with instructions that the BIA issue an opinion clarifying its reasons for dismissing Zhu's appeal. An opinion was necessary, we noted, because we had "no way of knowing whether the BIA affirmed the IJ's decision on a nonreviewable basis, i.e., untimeliness, or a reviewable basis, i.e., the merits of Zhu's asylum claim."8 We then specified the issues that needed to be addressed on remand:

[S]hould the BIA decide upon remand that Zhu's application for asylum was timely or her untimeliness is excused, the merits of her asylum application should be addressed. Most significantly, "forced" under 8 U.S.C. § 1101(a)(42) needs to be defined and whether Zhu meets such definition and therefore can be considered to have suffered past persecution needs to be determined. If unsatisfied with the BIA's resolution, Zhu can appeal. If, however, the BIA finds Zhu's application to be timely but decides not to address the merits of her claim and merely affirms the IJ's decision, then Zhu can appeal such a decision to this Court and this Court will then review the IJ's decision as the final agency determination concerning the merits of her claim. Further, even if the BIA determines that Zhu's application for asylum was not timely filed, the issue of whether Zhu was eligible for withholding of removal remains because there is no time bar in seeking withholding of removal. Again, here some similar but not identical unsolved issues should be addressed by the BIA on remand, most importantly whether Zhu has suffered past persecution or if she has a well-founded fear of future persecution. The BIA, utilizing its expertise as an agency skilled in making such evaluations, can address these issues and, if unsatisfied, Zhu can appeal. If the BIA decides not to address the withholding of removal claim, then the IJ's decision is a final agency determination subject to review again in this Court. In other words, we are neither deciding the merits of Zhu's claim nor prohibiting her from pursuing the merits of her claim at some later date.9

On remand, the BIA issued a terse opinion, holding that the IJ did not err in "finding the respondent's application for asylum untimely, without adequate excuse, or . . . in his alternative denial of her application on the merits." Specifically, the BIA stated,

[w]ith regard to timeliness, we adopt and affirm the [IJ]'s ruling that the application for asylum was untimely filed and did not satisfy any of the regulatory excuses for such untimeliness. . . . [I]n this case, we agree with the [IJ] that the respondent failed to file her asylum application within a reasonable amount of time. Furthermore, we agree with the [IJ]'s finding that the respondent failed to establish past persecution or a well-founded fear of future persecution. We note that the respondent testified that the government did not force her to have the abortion, nor did she have any problems with the government due to her pregnancy. From the record, it appears that the respondent made a decision and chose to have an abortion.

Thus, despite our clear instruction, the BIA did not define the term "forced" under 8 U.S.C. § 1101(a)(42). It dismissed Zhu's appeal of the IJ's denial of her petition. Zhu filed this petition, challenging the BIA's order.10

II. APPLICABLE LAW AND ANALYSIS
A. Standard of Review

We generally have authority to review only the decision of the BIA....

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