Li v. Gonzales

Court Case Details
Court Case Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Q

H

L

,

IAO

UA

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Petitioner,

v.

No. 03-2525

A

R. G

, Attorney

LBERTO

ONZALES

General,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A77-957-264)

Argued: February 2, 2005

Decided: May 2, 2005

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Petition denied by published opinion. Judge Williams wrote the
majority opinion, in which Judge Luttig joined. Judge Gregory wrote
a dissenting opinion.

COUNSEL

ARGUED: Ning Ye, HEMENWAY & ASSOCIATES, Flushing,
New York, for Petitioner. Michelle Elizabeth Gorden, Senior Litiga-
tion Counsel, UNITED STATES DEPARTMENT OF JUSTICE,
Office of Immigration Litigation, Washington, D.C., for Respondent.
ON BRIEF: Peter D. Keisler, Assistant Attorney General, M. Jocelyn
Lopez Wright, Assistant Director, UNITED STATES DEPART-

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MENT OF JUSTICE, Office of Immigration Litigation, Washington,
D.C., for Respondent.

OPINION

WILLIAMS, Circuit Judge:

Qiao Hua Li, a citizen of the People’s Republic of China, petitions

for review of a final order of the Board of Immigration Appeals (BIA)
denying her application for asylum and withholding of removal. Li
maintains that she is entitled to refugee status because she was perse-
cuted for her resistance to China’s coercive population control pro-
gram. Specifically, Li argues that she was persecuted for having an
unauthorized child because she was fined 10,000 Renminbi (RMB)
and she was required to have an intrauterine contraceptive device
(IUD) implanted against her will. Li also alleges that she has a well-
founded fear of being persecuted in the future if she returns to China.
The BIA concluded that the fine and the IUD requirement did not rise
to the level of persecution and that any fear Li had of future persecu-
tion was not well founded. Because the BIA’s decision was not mani-
festly contrary to law or an abuse of discretion, we affirm.

I.

Li was born on March 12, 1980 in Fuzhou, Fujian Province, China.

In January 1997, Li married Jing Cai Yang, in a traditional marriage
ceremony despite the denial of their application for a marriage certifi-
cate because Li was underage.

Four months later, Li became preg-

1

nant even though she and Yang lacked a marriage certificate. Fearing
that the Chinese government would force her to abort the unautho-
rized pregnancy, Li and her husband fled into the mountains, and her
child was born on January 12, 1998. Li and her husband returned
home eight months after the child was born. Upon returning, they
were fined 10,000 RMB for the unauthorized birth. They did not pay
the fine and were "harassed" by family-planning authorities. In her

Chinese law prohibits women from marrying until they are twenty

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years of age.

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brief, Li contends that this fine was more money than she and her hus-
band earned in a year.

In addition, after Li returned home, Chinese officials "forced [her]

to submit to an IUD insertion against [her] will." (J.A. at 1, 10; Supp.
J.A. at 24.) Li initially experienced "abnormal menstruation" from the
IUD, but the effects lessened over time and now Li can "tolerate it."
(J.A. at 10; Supp. J.A. at 24.) She was checked every few months by
Chinese doctors to ensure that the IUD was still in place and that she
was not pregnant. Li testified that the family-planning officials came
to her home in China to collect the fine every year and that her hus-
band did not live at home in order to avoid being harassed by the offi-
cials. Li’s son lives with her parents. Li testified that she repeatedly
asked to remove the IUD while in China, but the Chinese officials
refused those requests. Although Li has been in the United States
since 2001, she has not had the IUD removed. She testified that she
"dare not have it removed" because she fears the repercussions if she
is returned to China and it has been removed. (Supp. J.A. at 66.)

Li incurred a debt to smugglers of more than $60,000 for help to

flee China through Hong Kong and Japan. She arrived in the United
States, at the Los Angeles International Airport, on July 31, 2001, and
was detained by officials because she failed to present proper travel
documents. Because Li told the officials that she feared returning to
her native China, she was referred to an asylum officer for an inter-
view. See 8 U.S.C.A. § 1225(b)(1)(A) (West). Following this inter-
view, the asylum officer determined that Li had a "credible fear of
persecution" and that further proceedings were necessary. See 8
U.S.C.A. § 1225(b)(1)(B)(ii).

The Government charged Li with removability and began removal

procedures against her. Li conceded removability, but requested asy-
lum and withholding of removal. Li’s proceedings initially com-
menced in California, but were transferred to New York, where Li
moved upon arrival in the United States. In November, 2001, a status
hearing was conducted in New York. During that hearing, Li’s immi-
gration case was transferred again, to Virginia, where Li apparently
now resides.

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On November 20, 2002, the immigration judge (IJ) conducted the

merits hearing in Li’s case. Li was not accompanied by counsel to the
courtroom. When the IJ asked Li where counsel was, Li responded
that she was "not expecting him," and that he was not coming
"[b]ecause the fee [wa]s too high" and she "couldn’t afford it."

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(Supp. J.A. at 53.) After the IJ conferred with counsel by telephone
to confirm that he was no longer representing Li, the hearing contin-
ued.

The IJ concluded that Li had not been persecuted and did not have

a well-founded fear of persecution because neither the fine nor the
IUD insertion were severe enough to amount to persecution.

The IJ

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also noted that Li had not had the IUD removed while she was in the
United States, and that her husband and child were still living in
China. The IJ ordered that Li be removed to China.

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All of Li’s testimony at the hearing has been translated from the Man-

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darin and Fu-zhou languages.

The IJ also concluded that Li could not have been fined for having a

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child out of wedlock based on the timing of Li’s marriage. This conclu-
sion was erroneous and was apparently not relied on by the BIA. The IJ,
apparently as a result of the language barrier, did not understand that Li’s
1997 marriage was not sanctioned by the Chinese government and that
therefore any child born of the marriage was not authorized by the one
child policy. This error was not fatal, however, because the IJ also ana-
lyzed Li’s claim in the alternative, assuming that she had in fact been
fined for having a child out of wedlock.

At the time that the IJ rendered its decision, Hong Kong was still

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independent of China, and the IJ ordered Li removed to Hong Kong or,
in the alternative, to China. Since that time, Hong Kong has reverted to
Chinese control, and the BIA amended the IJ’s order to provide for Li’s
removal to China. In a section of her brief that is largely incomprehensi-
ble, Li apparently asks us to order that she be deported to Hong Kong,
even though she acknowledges that such an order would be "technically
impossible to . . . enforce[ ]." (Appellant’s Br. at 27.) Because this sec-
tion of Li’s brief contains no citation to legal authority, Li forfeited the
argument. See Fed. R. App. P. 28(a)(9)(A) (noting that the appellant’s
brief must contain, inter alia, "citations to the authorities . . . on which
the appellant relies."); Shopco Distribution Co., Inc. v. Commanding
General of Marine Corps
, 885 F.2d 167, 170 n.3 (4th Cir. 1989) (noting
that claims are forfeited if brief does not comply with Rule 28). In any
event, the BIA’s decision to amend the IJ’s removal order in light of
Hong Kong’s reversion to China was not an abuse of discretion.

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Li filed a notice of appeal with the BIA. On November 25, 2003,

the BIA adopted the IJ’s ruling and denied Li’s asylum claim. The
BIA found that "[Li] ha[d] not been persecuted in the past by being
forcibly sterilized or forced to have an abortion. Rather, [Li] was
required to use an intrauterine birth control device, which she contin-
ues to use in the United States of her own volition, and to pay a fine."
(J.A. at 1.) The BIA concluded that Li had failed to "establish that
either [the IUD or the fine] constitute[d] harm rising to the level of
persecution." (J.A. at 1.) The BIA also noted that "the father of [Li’s]
child, with whom she entered into a traditional marriage, remains in
China unharmed despite the non-payment of the fine." (J.A. at 1.)
Thus, concluded the BIA, Li "failed to establish an objectively rea-
sonable fear that, if . . . returned to China, she [would] suffer greater
harm, rising to the level of persecution." (J.A. at 1.) Li then filed the
instant petition for review, which we have jurisdiction to entertain
under 8 U.S.C.A. § 1252(a) (West 1999).

II.

On petition for review, the BIA’s determination that an alien is not

eligible for asylum must be upheld unless that determination is "mani-
festly contrary to the law and an abuse of discretion." 8 U.S.C.
§ 1252(b)(4)(D) (West 1999). "[A]dministrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (West 1999).
Thus, we may reverse the denial of Li’s asylum application only if the
evidence "was so compelling that no reasonable fact finder could fail
to find the requisite fear of persecution." Rusu v. INS, 296 F.3d 316,
325 n. 14 (4th Cir. 2002) (internal quotation marks omitted); see also
Blanco de Belbruno v. Ashcroft
, 362 F.3d 272, 284 (4th Cir. 2004).

Under the Immigration and Nationality Act, the Attorney General

may confer asylum to anyone who is a "refugee." Prior to 1997, cir-
cuit courts and the BIA had uniformly held that victims of China’s
"one child" policy had not been persecuted on a protected basis, and
had denied asylum requests based on this ground. See, e.g., Chen v.
INS
, 95 F.3d 801 (9th Cir. 1996); Chen Zhou Chai v. Carroll, 48 F.3d
1331 (4th Cir. 1995). To change this result, Congress, in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996

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(IIRIRA), created 8 U.S.C.A. § 1101(a)(42)(B). That section pro-
vides, in relevant part:

For purposes of determinations under this chapter, 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.

8 U.S.C.A. § 1101(a)(42)(B)(West 1999).

In Chen v. INS, 195 F.3d 198 (4th Cir. 1999), we interpreted this

section as follows:

In amending the Immigration and Nationality Act, Congress
included three additional classes of individuals in the defini-
tion of "refugee": 1) persons who had been forced to
undergo an involuntary sterilization or abortion; 2) persons
who had been persecuted for refusing to undergo such a pro-
cedure or for other resistance to a coercive population con-
trol program; and 3) persons who have a well-founded fear
of being subjected to [a forced abortion or sterilization, or
persecuted for resistance to] a coercive population control
program. See 8 U.S.C.A. § 1101(a)(42). By including appli-
cants with a "well founded fear" of persecution as a distinct
category, Congress directed that an individual in fear of a
population control program would be able to qualify for ref-
ugee status even in the absence of a showing of past perse-
cution.

Chen, 195 F.3d at 202.

In order to establish a well-founded fear of persecution, a petitioner

must make both a subjective and an objective showing. INS v.

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Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). The subjective com-
ponent can be met through the presentation of "candid, credible, and
sincere testimony demonstrating a genuine fear of persecution." Chen,
195 F.3d at 201 (internal quotation marks omitted). The subjective
"fear [must have] some basis in the reality of the circumstances and
[be] validated with specific, concrete facts," Huaman-Cornelio v.
BIA
, 979 F.2d 995, 999 (4th Cir. 1992) (internal quotation marks
omitted), and it cannot be "mere irrational apprehension," M.A. v.
INS
, 899 F.2d 304, 311 (4th Cir. 1990) (internal quotation marks
omitted). "The objective element requires the asylum petitioner to
show, with specific, concrete facts, that a reasonable person in like
circumstances would fear persecution." Chen, 195 F.3d at 202; see
also
8 C.F.R. § 208.13(b)(2)(i)(B) (2002).

If an alien can establish past persecution based on a protected fac-

tor, the alien is presumed to have a well-founded fear of future perse-
cution. Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999). In
contrast, if an alien has been mistreated in the past on the basis of a
protected factor, but the mistreatment did not rise to the level of per-
secution, the alien cannot prove a well-founded fear of future persecu-
tion merely by relying on the past mistreatment. Zalega v. INS, 916
F.2d 1257, 1261 (7th Cir. 1990) Instead, the alien must prove that she
has reason to believe she will be treated worse, i.e., persecuted, upon
return to her native country. Id.

"Persecution involves the infliction or threat of death, torture, or

injury to one’s person or freedom, on account of one of the enumer-
ated grounds in the refugee definition." Kondakova v. Ashcroft, 383
F.3d 792, 797 (8th Cir. 2004) cert. denied 125 S. Ct. 894 (2005)
(internal quotation marks omitted); accord Gormley v. Ashcroft, 364
F.3d 1172, 1176 (9th Cir. 2004) ; Liu v. Ashcroft, 380 F.3d 307, 312
(7th Cir. 2004); see also INS v. Stevic, 467 U.S. 407, 418 (1984). "Al-
though the term ‘persecution’ includes actions less severe than threats
to life or freedom, actions must rise above the level of mere harass-
ment to constitute persecution." Dandan v. Ashcroft, 339 F.3d 567,
573 (7th Cir. 2003) (internal quotation marks omitted); accord Gorm-
ley
, 364 F.3d at 1176; see Dandan 339 F.3d at 573 (holding that
three-day detention which included interrogations, beatings, and
deprivation of food and water did not compel a conclusion of past
persecution); Kubon v. INS, 913 F.2d 386, 388 (7th Cir. 1990) (find-

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ing that brief confinement for political opposition to a totalitarian
regime did not constitute persecution); Mendez-Efrain v. INS, 813
F.2d 279, 283 (9th Cir. 1987) (holding that a four-day detention did
not amount to persecution). "Persecution is an extreme concept that
does not include every sort of treatment that our society regards as
offensive." Gormley, 364 F.3d at 1176 (internal quotation marks and
alterations omitted). For example, brief detentions and repeated inter-
rogations by governmental officials over a substantial period of time
do not rise to the level of persecution. See, e.g., Zalega, 916 F.2d at
1260 (upholding BIA’s determination that alien had not been perse-
cuted despite four years of intermittent searches, arrests, and detain-
ments). Similarly, economic penalties "rise to the level of
persecution" only if such "sanctions are sufficiently harsh to consti-
tute a threat to life or freedom." Ahmed v. Ashcroft, ___ F.3d ___,
2005 WL 156631, *2 (8th Cir. Jan. 26, 2005); see also Stevic, 467
U.S. at 418. ("[Persecution] has also been construed to encompass
economic sanctions sufficiently harsh to constitute a threat to life or
freedom.").

Courts, thus, have been reluctant to categorize detentions unaccom-

panied by severe physical abuse or torture as persecution. See Dandan
339 F.3d at 574; Borca v. INS, 77 F.3d 210, 213 (7th Cir. 1996)
(upholding determination that illegal searches, interrogations and
threatening phone calls did not amount to persecution); Skalak v. INS,
944 F.2d 364, 365 (7th Cir. 1991) (upholding determination that two
three-day detentions and interrogations did not amount to persecu-
tion); Zalega, 916 F.2d at 1260 (upholding determination that
repeated interrogations did not amount to persecution). Even "[m]inor
beatings and . . . detentions lasting two or three days, do not amount
to . . . persecution." Kondakova, 383 F.3d at 797 (internal quotation
marks omitted). In contrast, when one who seeks asylum demon-
strates that he has been severely physically abused or tortured, courts
have not hesitated to characterize such treatment as persecution. Bace
v. Ashcroft
, 352 F.3d 1133, 1138 (7th Cir. 2003) (finding persecution
when petitioner was beaten successively by multiple assailants, was
attacked and cut with a razor, his home was broken into, his father
beaten, and his wife raped in front of him and his family); Asani v.
INS
, 154 F.3d 719, 725 (7th Cir. 1998) (stating that it was "likely that
the events described by [the petitioner] — being beaten resulting in
the loss of two teeth, deprived of food and water, detained in a cell

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with no room to sit, and chained to a radiator—[we]re sufficiently
serious to rise beyond the level of mere harassment"); Vaduva v. INS,
131 F.3d 689, 690 (7th Cir. 1997) (upholding determination that a
petitioner was persecuted when he was severely beaten and suffered
a broken finger).

In this case, Li argues that she has suffered past persecution for her

resistance to China’s coercive population control program and that
she has a well-founded fear that the persecution will recur if she
returns to China. Specifically, Li contends that both the 10,000 RMB
fine and the required insertion of the IUD were persecution for having
had an unauthorized child. For the reasons that follow, we hold that
the BIA’s decision that neither the fine nor the IUD insertion
amounted to persecution was not manifestly contrary to law or an
abuse of discretion.

We first consider whether the BIA was compelled to conclude that

the 10,000 RMB fine amounted to persecution. As we have noted,
economic penalties rise to the level of persecution only if they are so
harsh as to constitute a threat to life or liberty. According to Li,
10,000 RMB, an amount equivalent to approximately $1,300, is more
than one year’s wages for her family in China. Although we acknowl-
edge that Li’s fine is a harsh one, we do not believe that it is so large
as to compel a finding that it threatens Li’s life or freedom. The 2000
State Department Report on China, which was adopted by the IJ,
notes that "[i]n Quanzhou, Fujian Province, the fine for violating birth
quotas is . . . to be paid over a 12 to 13 year period." U.S. Department
of State Country Reports on Human Rights Practices for 2000 (China)
available at http://www.state.gov/g/drl/rls/hrrpt/2000/eap/684.htm
(released Feb. 23, 2001). Thus, Li and her husband were given a sub-
stantial period of time to repay the fine, mitigating any risk that the
magnitude of the fine posed to Li’s life or freedom. Our conclusion
is buttressed by the fact that Li was willing to incur a debt of more
than $60,000 to the smugglers who brought her to this country. Given
that Li was willing to undertake such a sizeable obligation voluntar-
ily
, we cannot reasonably say that the BIA was compelled to conclude
that the much smaller fine threatened Li’s life or freedom.

We next consider whether the BIA was compelled to conclude that

Li was persecuted when she was required to submit to the insertion

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of an IUD. Here, because Li has not alleged that she was or will be
subject to, or has refused to undergo, a forced abortion or forced ster-
ilization, we must consider only whether she "has been persecuted . . .
for other resistance to a coercive population control program" or has
a well-founded fear of such persecution. 8 U.S.C. § 1101(a)(42).
Moreover, because neither the Board nor the IJ addressed the issue of
whether the mistreatment Li alleges was imposed "for other resistance
to a coercive population control program," we would be required to
remand to the Board for an initial determination on that issue if it
were necessary to dispose of this case. See INS v. Ventura, 537 U.S.
12, 17 (2002) (per curiam). Therefore, we address only the narrow
issue of whether the penalties of which Li complains constituted "per-
secution" within the meaning of 8 U.S.C. § 1101(a)(42).

Of these penalties, we have already determined that the fine did not

rise to the level of economic "persecution." Thus, we have only to
consider whether the IUD requirement constituted persecution. More-
over, because Li challenges only the insertion of the IUD as mistreat-
ment constituting persecution, our holding is correspondingly narrow.
In particular, Li does not argue that the harms and injuries associated
with compelled IUD usage — such as the continuing invasion of her
most intimate bodily privacy and the potentially indefinite disabling
of her reproductive capability — when taken together with the fla-
grant violation of personal privacy involved in the actual insertion of
the IUD, might collectively rise to the level of "persecution." Instead,
apparently because she has voluntarily chosen to leave the IUD in
place during her residence in the United States, (Supp. J.A. 25), Li
challenges on appeal, as the treatment constituting persecution, only
the act of inserting the IUD. (See Pet. Br. at 27-35; Supp. J.A. at 32
("The IUD, as an instrument, in the victim’s body, is not itself a per-
secution[;] the process of forceful insertion of the IUD into the body
of an unwilling recipient is a persecution.").)

Therefore, on this issue, the sole question presented to us is

whether the single event of insertion of the IUD constituted persecu-
tion. Moreover, even as to this single act, Li does not allege force,
physical abuse, or other equivalent circumstances, and thus she does
not challenge the manner or means of the insertion. Contrast Li v.
Ashcroft
, 356 F.3d 1153, 1158 (9th Cir. 2004) (holding that a half-
hour compelled gynecological examination, conducted by means of

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force and physical restraint while the victim resisted by kicking and
screaming, constituted "persecution"). Rather, Li claims only that she
was required to submit to what we are left (by the bareness of the
record and her arguments) to believe was a medically routine inser-
tion. That is, but for the fact that the procedure was required, the
record contains no evidence that the procedure differed from a volun-
tary IUD insertion, which typically does not cause substantial pain or
lasting side effects. See Novak’s Textbook on Gynecology 225 (How-
ard Jones III et al., eds., 11th ed. 1998); Williams Obstetrics 1363
(Gary F. Cunningham et al., eds., 20th ed. 1997); Danforth’s Obstet-
rics and Gynecology
633 (James R. Scott et al., eds., 7th ed. 1994).
On these specific and bare allegations, we cannot conclude that the
BIA’s holding that insertion of the IUD alone did not constitute perse-
cution was "manifestly contrary to law." 8 U.S.C. § 1252(b)(4)(D). If
our review here were de novo, or if the record contained evidence of
forcible mistreatment or physical abuse of Li during the IUD inser-
tion, or if Li’s argument on appeal were not so narrowly limited to
the single act of insertion, we might well be prepared to hold that the
compulsory insertion and required usage of an IUD constitutes "per-
secution" within the meaning of 8 U.S.C. § 1101(a)(42). In any event,
we would certainly not treat any such claim as dismissively as the IJ
and BIA evidently treated Li’s claim. But, as we are constrained by
the standard of review, the bareness of the record, and the issue as
deliberately limited by the petitioner, we cannot conclude that the
BIA’s determination that Li was not "persecuted" was manifestly con-
trary to law.

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Our dissenting colleague mischaracterizes our interpretation of "per-

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secution." He argues that we require a finding of "force," construed nar-
rowly to mean "physical restraint," as a necessary predicate to a finding
of "persecution." See post at 17-18. But there is not even a hint of such
in our opinion. On the contrary, our holding explicitly leaves open the
possibility that the required insertion and continuous usage of an IUD
might constitute "persecution," even absent any physical force or
restraint whatsoever. Moreover, from our discussion of persecution via
economic penalties, it is obvious that "persecution" does not always
involve physical force or restraint. We have concluded merely that the
absence of physical force in the insertion of Li’s IUD is one relevant fac-
tor
among several in our determination that the Board did not manifestly
err in holding that such an isolated event did not rise to the level of per-
secution. Judge Gregory’s suggestion that we require a showing of physi-
cal restraint for any allegation of "persecution" is thus baseless.

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Finally, given that we have upheld the BIA’s conclusion that Li did

not suffer past persecution, we must also uphold the BIA’s conclusion
that she has not demonstrated a well-founded fear of future persecu-
tion. Li presented no evidence suggesting that she will be treated any
worse upon her return to China than she has been in the past. Zalega,
916 F.2d at 1261. Therefore, the BIA was not compelled to conclude
that Li had an objectively reasonable fear of future persecution for
resistance to China’s coercive population control program.

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III.

For the foregoing reasons, we conclude that the BIA did not abuse

its discretion when it determined that Li was not persecuted for resis-
tance to China’s coercive population control program. We also con-
clude that the BIA did not abuse its discretion when it determined that
Li had not established a well-founded fear of future persecution.
Accordingly, we deny Li’s petition for review.

PETITION DENIED

GREGORY, Circuit Judge, dissenting:

Even assuming, as the majority finds, that the insertion of Li’s IUD

was a "medically routine insertion," this insertion was still persecu-
tion because Li was compelled coercively to submit to a procedure
that caused her harm, that she found offensive, and that was done in
violation of her personal bodily privacy. Moreover, Li resisted
China’s coercive population control program by voicing her opposi-
tion to the IUD’s insertion and its continued required use. However,
I would remand this case to the BIA to consider whether, per 8 U.S.C.
§ 1101(a)(42)(B), Li’s persecution was on account of any such resis-
tance. Therefore, I respectfully dissent.

Li also argues that she was denied due process by the absence of

6

counsel during her hearing before the IJ. Because Li did not make this
argument in her appeal to the BIA, the claim is procedurally defaulted,
and we may not consider it. 8 U.S.C.A. § 1252(d)(1)(2) (West 1999).

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I.

Prior to 1997, the BIA consistently held that persecution under

China’s "one child" family planning policy was not persecution "on
account of political opinion," and that victims of these policies were
therefore not entitled to asylum. In response to this interpretation,
Congress amended the definition of "refugee" to include those who
had been persecuted under a coercive family planning program, or
who legitimately feared such persecution. See 8 U.S.C. § 1101(a)(42)
(1999).

Since this amendment some jurisprudence on what qualifies as past

persecution or a well-founded fear of future persecution has emerged.
Notably, courts have interpreted the plain language of the statute to
provide that forced abortions and sterilizations are per se persecution
and trigger asylum eligibility. Li v. Ashcroft, 356 F.3d 1153, 1157
(9th Cir. 2004); Wang v. Ashcroft, 341 F.3d 1015, 1020 (9th Cir.
2003). Spouses of those subject to abortions and sterilizations have
also been granted asylum. He v. Ashcroft, 328 F.3d 593, 603-04 (9th
Cir. 2003); Qi v. Ashcroft, 329 F.3d 140, 144-45 (2d Cir. 2003); In
re C-Y-Z
, 21 I. & N. Dec. 915, 918 (BIA 1997). A well-founded fear
of future persecution has been established in cases in which the Chi-
nese government forbade a woman to have a child based on her par-
ents’ violation of the one-child policy, Zheng v. Ashcroft, 108 Fed.
Appx. 523, 525 (9th Cir. 2004), and in which a woman, who had also
experienced past persecution, feared she would have to undergo steril-
ization and imprisonment for removing an IUD if she returned to
China, Wang v. Ashcroft, 341 F.3d 1015, 1018 (9th Cir. 2003).

Less defined are cases in which an applicant seeks asylum based

on "other resistance to a coercive population program." 8 U.S.C.
§ 1101(a)(42) (1999). The first and only extensive discussion of this
category of asylum-seekers is the Ninth Circuit’s decision in Li v.
Ashcroft
, 356 F.3d 1153 (9th Cir. 2004). In Li, the court confronted
the issue of "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 category. 356
F.3d at 1156.

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In concluding that she did qualify for asylum, the court analyzed

each component of persecution on account of resistance to a coercive
population program. Under its discussion of "persecution," the court
concluded that Li suffered a forced pregnancy examination (in which
she was held down) after she announced her opposition to China’s
"one-child" policy and that this qualified as past persecution. Id. at
1158. It also found that Li had a well-founded fear of future persecu-
tion because she was threatened with future abortion and/or steriliza-
tion as well as imprisonment. Id. at 1159.

The Ninth Circuit then looked at whether a "coercive population

control program" existed in Li’s city. It found ample evidence that
China’s program was in effect in Li’s city and that it applied to Li
because: 1) it set a minimum age for marriage that Li had not met,
and 2) limited family size to one child per couple. Id. at 1159-60.
Next, the court considered Li’s "resistance" and found that she
resisted in two ways: 1) she vocally resisted the marriage-age restric-
tion when she publicly announced her decision to marry after being
denied a marriage license and told an official that she planned to have
"many babies," and 2) she physically resisted by struggling during the
forced gynecological examination. Id. at 1160. Finally, the court con-
sidered whether Li’s persecution was "on account of" her resistance.
In finding that it was, the court explained that "Li clearly would not
have been forcibly examined for pregnancy but for her resistance to
China’s population control program." Id.

No court has ruled on whether an involuntary IUD insertion can

qualify as persecution on account of other resistance to China’s popu-
lation control program. Indeed, the only circuit courts to consider this
issue have remanded the question for further consideration.

Thus, our

1

decision in this case is of great import.

In an unpublished disposition, the Third Circuit recently remanded a

1

case to the BIA to consider whether a fine plus IUD insertion could qual-
ify as such resistance. See Fang v. Aschroft, 114 Fed. Appx. 486 (3rd
Cir. 2004) (noting that "the Board and the Circuit Courts have not specif-
ically addressed whether a woman who unwillingly acquiesced to obtain-
ing an IUD ‘has been persecuted . . .’" and finding the BIA’s use of
streamlining case procedures thus improper).

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II.

For Li to be eligible for asylum under 8 U.S.C. § 1101(a)(42)’s

"other resistance" provision, she must demonstrate that she was sub-
ject to (1) persecution (2) on account of (3) resistance (4) to a coer-
cive population control program.

2

Looking first to "persecution," the majority seeks to cast the issue

of whether an involuntary IUD can qualify as "persecution" under the
facts of this case narrowly by asserting that Li only challenges the sin-
gle event of the insertion of the IUD and not its continued required
usage
. Ante at 10-11. It then notes that "Li does not allege force,
physical abuse, or other equivalent circumstances," but rather that she
was only required to have "a medically routine insertion" of an IUD.
Id. However, neither the record nor common sense supports such a
narrow framing of the issue.

First, a full and fair reading of the record and briefs in this case

clearly indicates that both the IUD’s insertion and its continued
required usage
are components of Li’s allegations of persecution.
Specifically, Li states that she experienced abnormal menstruation

In addition, the Seventh and Ninth Circuits have remanded similar

cases. The Ninth Circuit remanded a case in March 2004 that presented
the issue of whether a fine and an involuntary IUD can demonstrate that
one has a well-founded fear of future persecution. Chen v. Ashcroft, 362
F.3d 611, 622-23 (9th Cir. 2004). The Seventh Circuit remanded a case
in September 2004 for a determination of whether three involuntary IUD
insertions and mandatory pregnancy checkups could constitute persecu-
tion as a "coercive population control program" and whether the appli-
cant’s efforts to have an IUD removed is the type of "resistance" that
Congress sought to protect under the statute. Lin v. Ashcroft, 385 F.3d
748, 757 (7th Cir. 2004).

A strict one-child policy is in place in Li’s home, Fuzhou City,

2

because it is a large city in China. Supp. J.A. 101; see China: Profile of
Asylum Claims and Country Conditions
(U.S. State Department, April
14, 1998) (stating that Fujian Province, in which Fuzhou City lies, has
a one-child policy). Because this does not appear to be in dispute, I do
not analyze this element separately.

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after the IUD was inserted, that it has caused her pain, and that she
has been subject to quarterly gynecological exams to make sure that
the IUD was still inserted. J.A. 6, 29-30, 46-47; Petitioner’s Br. at 1.
Such statements clearly indicate that Li is challenging the continued
required usage of the IUD as well as its insertion.

Second, common sense dictates that the majority’s attempt to sepa-

rate the insertion of the IUD from its continued required usage is
indeed flawed. Despite the majority’s best efforts, one cannot separate
the insertion of a device into the body — a device that only works if
it remains inserted — from the continued usage of such a device.
Rather the insertion and continued required usage of an IUD are part
and parcel of the claim of persecution.

To separate these realities in

3

such an artificial manner is to evade the very real and difficult issue
in this case — whether both the insertion of an IUD and its continued
required usage fall under the definition of "persecution."

Turning now to a full analysis of this issue, case law has character-

ized "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, 96 (9th Cir. 1996) (en banc) (quoting Ghaly v. INS,
58 F.3d 1425, 1431 (9th Cir. 1995)); see also Fatin v. INS, 12 F.3d
1233, 1240 & n.10 (3d Cir. 1993) (stating that persecution denotes
"extreme conduct"). Here, Li testified that she was required to submit
to an IUD that she did not want, that she found it uncomfortable, that
it caused abnormal menstruations, and that she asked for it to be
removed on several occasions, testimony that the IJ did not discredit.

4

Indeed, it should go without saying that if the Chinese government

3

was persecuting Li by requiring her to submit to an IUD, that then
removing the IUD (as the majority is fictionally doing by failing to con-
sider its continued required usage) would undermine the goal of that per-
secution.

The IJ only noted that Li’s failure to have it removed once present in

4

the United States, given that her husband was in China, was suspect. The
implication of the IJ’s statement is itself suspect. Li testified that she did
not dare to have the IUD removed for fear of what would happen if she
returned to China without it. That her husband is still in China but she
still had the IUD, which acts as a birth control device, is simply irrele-
vant.

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Looking to the definition of persecution, Li was compelled to submit
to a procedure that caused her suffering and that she found offensive
— a procedure in which a foreign object was inserted into her body.
In addition, Li was required to keep the IUD inserted despite both her
physical pain over its usage and her objection to its usage as a birth
control device. The insertion and continued required usage of the IUD
constitute both a violation of Li’s personal bodily privacy and a con-
tinuing invasion of that privacy. I would thus find that these acts
clearly meet the definition of "persecution."

Under the majority’s narrow consideration of the issue of "persecu-

tion," it places much weight on the fact that Li presented no evidence
that she was forcibly inserted with the IUD, suggesting in turn, that
submitting to an IUD insertion, even if one does not desire it, does
not equate to persecution. This argument assumes that Li has to dem-
onstrate that she was physically restrained for the insertion to qualify
as persecution. However, persecution under 8 U.S.C. § 1101(a)
(42)(B) is not limited to situations involving physical restraint or
force. See Ding v. Ashcroft, 387 F.3d 1131, 1139 (9th Cir. 2004)
(finding that reading into the statute a "physical restraint" requirement
would contravene the statute’s purpose to bestow refugee status onto
those individuals persecuted under China’s "coercive" population
control program). The majority’s insinuation of a physical restraint
requirement onto the statute, which it buttresses by extensively
reviewing cases in which courts have found persecution (under the
more general persecution statute) in the face of severe physical abuse,
is simply at odds with the plain language of the statute in this case
(which specifically addresses coercive population control programs)
and is thus irrelevant to our analysis here.

Yet the absence of physi-

5

Even if the definition of persecution does involve some degree of

5

"force," as the majority assumes, the ordinary meaning of "force"
includes "to constrain or compel by physical, moral, or intellectual
means or by exigencies of circumstances," Webster’s International Dic-
tionary
887 (3d ed. 1981), and "to compel, constrain, or oblige (oneself
or someone) to do something," Webster’s College Dictionary 512 (2d ed.
2000). Thus, the common meaning of "force" can apply to situations in
which one is "compelled" to do something by means other than physical
restraint and can certainly encompass what the majority refers to as a
"medically routine insertion." Indeed if one did try to struggle during the
procedure, the result would likely be only more discomfort and possible
harm to the uterus.

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cal force is the only ground on which the majority bases its finding
that the insertion of the IUD is not "persecution" under this statute.

6

Although I would find that Li was subject to persecution, under the

statute she still must demonstrate that she resisted China’s coercive
population control program and that her persecution was on account
of such resistance. Yet the IJ, whose review of Li’s claim can only
be characterized as cursory and dismissive, as well as the BIA, who
entered merely a perfunctory order adopting the IJ’s disposition, did
not reach these latter two issues. I thus review them briefly.

In considering Li’s resistance, I look to the ordinary meaning of the

word "resistance." It is defined as "the act or power of resisting,
opposing, or withstanding." Webster’s College Dictionary 1124 (2d
ed. 2000). "Resisting" in turn is defined as "to withstand, strive
against, or oppose . . . ." Id.

In this case, Li testified that she did not want the IUD and that she

further asked that it be removed several times but that her requests
were denied. While Li’s voiced opposition to the IUD was not made
in a public manner, as in the Ninth Circuit’s Li case, I do not read the
statute to require public resistance. Expressing one’s opposition to the
implementation of the coercive population control program, as Li did
when she opposed the IUD’s insertion and repeatedly asked the IUD
to be removed, is no less "resistance" than would be a public repre-
sentation of her opposition. I would thus find that the record fully
supports a conclusion that Li "resisted" China’s coercive population
control program.

Under the statute, a causal connection must also exist — Li’s per-

secution must be "on account of" her resistance. Here, neither the IJ

The majority’s assertion that it has "concluded merely that the

6

absence of physical force in the insertion of Li’s IUD is one relevant fac-
tor among several in [its] determination," ante at 11 n.5, is hard to
fathom given that it distinguishes this case on the ground that it does not
involve forcible mistreatment or physical abuse and then intimates that
it "might be well prepared to hold that the compulsory insertion and
required usage constitutes persecution," if such forcible mistreatment or
physical abuse were present, id. at 11.

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nor the BIA considered whether any such causal connection exists
and the record is not otherwise clear on this issue. It could be that the
IUD’s insertion was simply a routine facet of China’s administration
of its policy, in which case the "on account of" element would not be
satisfied. See Supp. J.A. 101 (noting that "women who do not qualify
for a Family Planning Certificate that allows them to have a child
must use an intrauterine device (IUD) or implant"). Or, Li may be
able to demonstrate that at least part of the family planning officials’
motivation in subjecting her to the insertion of an IUD (or its contin-
ued required usage) was her opposition to China’s policy.

See Luk-

7

wago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003) ("A persecutor
may have multiple motivations for his or her conduct, but the persecu-
tor must be motivated, at least in part, by one of the enumerated
grounds.") (citing Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997)).
I would thus remand the case for consideration of this issue.

III.

I dissent from the majority’s conclusion that the insertion of the

IUD was not persecution as well as its assertion that Li does not chal-
lenge the continued required use of the IUD. Li was compelled coer-
cively to submit to a procedure that caused her harm and that she
found offensive, a procedure in which a foreign object was inserted
(and required to remain inserted) into her body in violation of her per-
sonal bodily privacy. This was persecution. Furthermore, Li resisted
China’s coercive population control program by voicing her opposi-
tion to the IUD’s insertion and its continued required use. I would,
however, remand the case to the BIA to consider the further question
of whether Li’s persecution was on account of her resistance.

For example, if Li presented evidence that she was subjected to an

7

IUD when others, who were similarly situated to herself but who had not
voiced opposition, were not, or that family planning officials gave some
indication that she was being subjected to an IUD because of her opposi-
tion, I believe that Li would be entitled to relief under the statute.

Referenced Cases

  1. Parastoo Fatin v. Immigration & Naturalization Service
  2. Bernard Lukwago A/K/A Melvin Haft v. John Ashcroft
  3. Fengchu Chang v. Immigration & Naturalization Service
  4. 96 Cal. Daily Op. Serv. 2252 v. Immigration
  5. Xu Ming Li Xin Kui Yu v. John Ashcroft
  6. Zi Lin Chen v. John Ashcroft, Attorney General
  7. Michael Andrew Gormley Edith Carol Gormley v. John Ashcroft
  8. De You Chen v. Immigration
  9. Wang He v. John Ashcroft, Attorney General
  10. Farid Faham Gamal Ghaly v. Immigration
  11. Antonio Mendez-Efrain v. Immigration & Naturalization Service
  12. Xuan Wang v. John Ashcroft, Attorney General
  13. Lidan Ding v. John Ashcroft, Attorney General
  14. Nataliya Vladimironva Kondakova Yuriy Leonidovich Kondakov Olga Yrievna Kondakova v. John Ashcroft
  15. Sever Vaduva v. Immigration and Naturalization Service
  16. Denada M. Bace v. John Ashcroft
  17. Mei Dan Liu v. John D. Ashcroft
  18. Nabil Raja Dandan v. John Ashcroft
  19. Barbara Skalak v. Immigration and Naturalization Service
  20. Jenica Borca v. Immigration and Naturalization Service
  21. Jan Zalega v. Immigration and Naturalization Service
  22. Sefadin Asani v. Immigration and Naturalization Service
  23. Xia J. Lin v. John D. Ashcroft
  24. Jan Kubon v. Immigration and Naturalization Service
  25. Jin Shui Qiu v. John Ashcroft
  26. INS v. Orlando Ventura
  27. INS v. Cardoza-Fonseca
  28. INS v. Stevic
  29. Constantin Rusu v. U.S. Immigration & Naturalization Service John Ashcroft
  30. Chen Zhou Chai v. William J. Carroll
  31. Yong Hao Chen v. U.S. Immigration & Naturalization Service
  32. David Daada Gonahasa v. U.S. Immigration & Naturalization Service
  33. M.A. A26851062 v. U.S. Immigration & Naturalization Service
  34. Jhonny A. Huaman-Cornelio v. Board of Immigration Appeals
  35. Shopco Distribution Company v. The Commanding General of Marine Corps Base
  36. Maria Isabel Blanco v. John D. Ashcroft