Li v. Ashcroft

• Decision Date: 29 January 2004
• Docket Number: No. 00-70157.,00-70157.
• Citation: 356 F.3d 1153
• Parties: Xu Ming LI; Xin Kui Yu, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

356 F.3d 1153

Xu Ming LI; Xin Kui Yu, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 00-70157.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 16, 2003.

Filed January 29, 2004.

COPYRIGHT MATERIAL OMITTED

Robert B. Jobe (argued), Law Office of Robert B. Jobe, San Francisco, CA, and Michael P. Karr, Michael P. Karr & Associates, Sacramento, CA, for the petitioners.

Greg D. Mack (argued), Alison R. Drucker and Russell J.E. Verby, U.S. Department of Justice, Washington, DC, for the respondent.

Dr. John Aird, Silver Spring, MD, amicus curiae in support of petitioners.

On Petitions for Review of an Order of the Board of Immigration Appeals. Agency Nos. A77-169-374, A77-169-373.

Before: SCHROEDER, Chief Judge, PREGERSON, REINHARDT, T.G. NELSON, KLEINFELD, HAWKINS, THOMAS, GRABER, WARDLAW, PAEZ, and CLIFTON, Circuit Judges.

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 their 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, 21 I. & 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).

1. "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...