Zhang v. Gonzales, 01-71623.

• Decision Date: 26 May 2005
• Docket Number: No. 01-71623.,01-71623.
• Citation: 408 F.3d 1239
• Parties: Xue Yun ZHANG, Petitioner, v. Alberto GONZALES, United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.3d 1239

Xue Yun ZHANG, Petitioner, v. Alberto GONZALES, United States Attorney General,^* Respondent.

No. 01-71623.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2002.

Submission withdrawn December 18, 2002.^**

Resubmitted May 19, 2005.

Filed May 26, 2005.

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Peter K. Huston, Patricia Bonheyo (argued), Randall T. Kim, Elisa Lee, Latham & Watkins, San Francisco, CA, for the petitioner.

Paul Fiorino, Richard M. Evans, Michael J. Dougherty, Nancy Friedman (argued), Office of Immigration Litigation, Department of Justice, Washington, D.C., for the respondent.

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

Before COWEN,^*** HAWKINS, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Xue Yun Zhang, a Chinese citizen, arrived in the United States seeking asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge ("IJ") denied relief, and the Board of Immigration Appeals ("BIA") dismissed the appeal. Ms. Zhang's petition for review presents a question of first impression in this court: is a child of a parent who was forcibly sterilized automatically eligible for asylum under 8 U.S.C. § 1101(a)(42)(B)? We hold that she is not.

To be eligible for asylum or withholding of removal, Ms. Zhang must demonstrate that she suffered past persecution or has a well-founded fear of future persecution on account of a protected ground. The BIA determined that Ms. Zhang did not suffer persecution and that she does not have a well-founded fear of future persecution upon returning to China. We hold that the BIA's determination is not supported by substantial evidence. We therefore grant her petition for review and remand for further proceedings consistent with this opinion.

I. Background

Xue Yun Zhang was fourteen years old in April 2000 when she left China for the United States. Because neither the IJ nor the BIA¹ made a negative credibility finding we accept Ms. Zhang's testimony before the IJ as true. Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir.2004). We take the following facts from her testimony and asylum application.

Ms. Zhang is the oldest of three children in her family. She was born in Changla City, China on September 16, 1985. Two years later, Ms. Zhang's parents had a second girl. The government permitted two children per family in the rural village where the Zhang family lives, but Ms. Zhang's parents decided to have a third child. On January 8, 1992, Ms. Zhang's brother was born. The family successfully hid the third child from authorities for six years. His existence became known to officials in November 1999, when Ms. Zhang's parents decided to enroll their son in school. As required by law, Ms. Zhang's parents reported the boy's birth to local officials and placed his name in the family registry.

After learning that the Zhang family had more children than allowed, government officials ordered Mr. Zhang to be sterilized. On April 2, 2000, several officials from the local birth planning bureau came to the Zhang family home early in the morning. The officials took Mr. Zhang away by car to be sterilized. Describing this incident, Ms. Zhang testified, "My mother was crying, and our sisters and brothers were crying, and we did not want my father to be taken away to be forced to terminate his reproduc[tive] ability." After the operation, Ms. Zhang's father was physically weakened and he was unable to resume work in his previous occupations—housing construction and agriculture. To earn income, Ms. Zhang's mother began working as a babysitter for other families' children. Officials imposed a fine of 23,000 renminbi ("RMB")—at the time, about $2,800—on the Zhang family. The family could not pay the fine. Officials confiscated some of the family's possessions and threatened to evict the family from its home. The children were prohibited from attending further school until the fine was paid. Ms. Zhang was in seventh grade at the time.

According to Ms. Zhang's asylum application, "[i]n light of these problems, my father thought that there was no future for me in China so when he heard of an opportunity to send me here, he did so." Ms. Zhang's mother obtained a fraudulent passport and visa, and made arrangements to smuggle Ms. Zhang to the United States. On April 21, 2000, the Immigration and Naturalization Service ("INS") apprehended Ms. Zhang at Los Angeles International Airport, where she requested asylum and withholding of removal. She told the INS officer who took her sworn statement that she wanted "to learn English and work here." When asked why she left her home country, she answered, "I want to come to study and work." When asked if she was afraid to return to her country, she said that she was.

At Ms. Zhang's hearing before the IJ, her counsel argued that she was eligible for asylum and related relief on the theory that she had experienced persecution in China as the child of parents who had violated China's family planning policies. Her counsel also argued that Ms. Zhang had a well-founded fear of future persecution because she feared that she would be arrested, beaten, and tortured if returned to China.

The IJ denied Ms. Zhang's application for relief. The IJ recognized that individuals who have been forcibly sterilized, as well as their spouses, are deemed to be refugees and are therefore eligible for asylum. But he ruled that the children of forcibly sterilized parents are not automatically eligible for asylum. The IJ concluded that Ms. Zhang had not carried her burden of showing that she, herself, had been persecuted on account of her political opinion, nor her burden of showing that she had a well-founded fear of future persecution. Ms. Zhang timely appealed to the BIA, which adopted the IJ's decision and dismissed the appeal. This petition for review followed. As of February 4, 2002, the INS was still holding Ms. Zhang in detention while her case was pending. We have since been informed by her counsel that she is no longer in detention.

Where, as here, the BIA reviews the IJ's opinion de novo, we review the BIA's decision and those portions of the IJ's decision adopted by the BIA. Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002). We review de novo the BIA's legal conclusions, granting deference to its reasonable interpretation of ambiguous statutory provisions. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). We review findings of fact, including whether Ms. Zhang suffered persecution or has a well-founded fear of future persecution, for substantial evidence. Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir.2004). "To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it[.]" INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original).

II. Discussion

A. Automatic Statutory Eligibility for Asylum

To be eligible for asylum, an applicant must show that she is a person who is "unable or unwilling" to return to her country of origin "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." 8 U.S.C. § 1101(a)(42)(A). Under 8 U.S.C. § 1101(a)(42)(B), an individual who has been forcibly sterilized is automatically deemed eligible for asylum. In relevant part, § 1101(a)(42)(B) provides that

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, 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 a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

As we and the BIA have construed this provision, spouses of individuals who have been sterilized are also automatically deemed eligible for asylum. Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir.2004) (en banc); Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir.2004); In re C-Y-Z-, 21 I. & N. Dec. 915, 918 (BIA 1997).

Ms. Zhang's counsel urges us to extend automatic asylum eligibility to the children of forcibly sterilized parents. The statute, however, does not plainly indicate that such children are deemed eligible. At most, the statute is ambiguous on this point, as its text states that "a person who has been forced to abort a pregnancy or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion." 8 U.S.C. § 1101(a)(42)(B) (emphasis added). The statute does not explicitly make eligible the child of someone who has been forcibly sterilized. When the text of the INA is ambiguous, we defer to the BIA's reasonable construction of the statute it administers. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Espejo v. INS, 311 F.3d 976, 979 (9th Cir.2002). The "BIA should be accorded Chevron deference as it gives ambiguous statutory terms `concrete meaning through a process of case-by-case adjudication[.]'" Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)).

We reject agency interpretations of the INA that "contravene other indications of congressional intent" or that "produce absurd results." Ma, 361 F.3d at 558 (quotation marks and citations...