Fei Mei Cheng v. Attorney General of the United States

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-2022

_____________

FEI MEI CHENG

A/K/A PEI KWAN LEE,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of an Order

of the Board of Immigration Appeals

(Agency Case Number A077-354-013)

Argued July 12, 2010

Before: FUENTES, ALDISERT, and ROTH, Circuit Judges

(Opinion Filed: October 6, 2010)

Theodore N. Cox, Esq. [ARGUED]

Henry Hwang, Esq.

401 Broadway, Suite 701

New York, NY 10013

Counsel for Petitioner

Briena L. Strippoli, Esq. [ARGUED]

Ann M. Welhaf, Esq.

Sada Manickam, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

OPINION OF THE COURT

FUENTES, Circuit Judge:

Fei Mei Cheng (“Cheng”) is a citizen and native of

China. While living in China’s Fujian Province, Cheng became

pregnant but under Chinese law was too young to marry her

boyfriend. Over the course of her pregnancy, local family

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planning officials employed a pattern of escalating threats in an

effort to persuade her to abort the pregnancy, but Cheng resisted

and gave birth to a daughter. In response to her resistance to the

population control laws and to induce her to undergo a

sterilization procedure, the officials confiscated the family farm

and truck, forbade Cheng from working on the farm, threatened

to take her newborn daughter away from her, and imposed

various economic and other sanctions. Cheng was ultimately

forced to have an intrauterine device (“IUD”) inserted, and soon

thereafter, she and her boyfriend fled to the United States. Upon

arrival, she applied for protective relief, invoking 8 U.S.C. §

1101(a)(42), which makes eligible for asylum a “person who has

been forced to . . . undergo involuntary sterilization, or who has

been persecuted for . . . other resistance to a coercive population

control program.”

The Immigration Judge (“IJ”) denied her application and

the Board of Immigration Appeals (“BIA”) affirmed,

concluding, among other things, that Cheng had not been

persecuted and that the mistreatment to which she was subjected

was unrelated to her resistance to China’s population control

policies. We disagree with both of these conclusions and will

therefore grant the petition for review.

I.

A.

The facts underlying Cheng’s asylum application, which

the IJ found credible and which are uncontested, are as follows.

Cheng was born and raised in China’s Fujian Province. Fujian

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Province is “known for being a place where the one-child policy

has been enforced with special vigor—a reputation that persists

still today.” Lin v. Mukasey, 517 F.3d 685, 688 (4th Cir. 2008)

(quotation marks, brackets, and citation omitted). In June 1995,

when she was nineteen years old, Cheng met and started dating

Zailin Chen (“Chen”), a twenty-three-year-old man who lived in

her village. Cheng became pregnant in March 1996. Although

Cheng and Chen wanted to get married, the two were not

permitted to wed because they fell below their village’s age

requirement for marriage—in the village, women were not

permitted to marry before the age of twenty-three, and men were

not allowed to be married before the age of twenty-five.

In May 1996 township officials discovered that Cheng

was pregnant. The officials attempted to pressure Cheng into

having an abortion, but she refused. The official responsible for

birth control and family planning in Cheng’s township, Feng

Ying, then paid a visit to Cheng at her parents’ home, where

Cheng lived. Ying insisted that Cheng have an abortion and

informed her that if she did not terminate her pregnancy, her

reputation would be damaged and she would lose her job.

Again, Cheng refused to comply with these demands.

Approximately one month later, four township officials went to

Cheng’s home to confront her about the pregnancy. Cheng was

not home at the time of the visit, but her mother was, and the

officials warned her mother that if Cheng did not agree to have

an abortion voluntarily, the officials would force her to do so.

As a result of these threats, Cheng and Chen went into

hiding in another city, where they stayed with Chen’s aunt.

While Cheng and Chen were away, township officials returned

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to Cheng’s parents’ house in the middle of the night. The

officials were “furious” when they discovered that Cheng was

not home, and they threatened her parents with seizure of the

family’s farm and truck, which were the source of the family’s

livelihood, if Cheng did not cooperate with the authorities and

have an abortion. (App. at 736.)

Cheng continued to defy the officials’ demands and gave

birth to a daughter on January 1, 1997. When township officials

learned that Cheng had given birth, they immediately followed

through on their threat to confiscate the farm and truck, which

Cheng and her family “depended on . . . to make a living.” (Id.)

In addition, Ying, the leader of the township’s family planning

cadre, went to Cheng’s residence to inform the family that

because Cheng had violated the law by refusing to have an

abortion, the entire family was forbidden from working on the

confiscated farm. Ying also ordered Cheng to participate in a

six-month re-education program. Finally, the township

government ordered that Cheng and Chen each be sterilized.

Cheng’s family members attempted on multiple occasions to

persuade the officials not to compel the couple to be sterilized,

but the officials rejected their requests. After their family

members’ unsuccessful conversations with township officials,

Chen (whom Cheng characterized as young and temperamental)

engaged in a physical altercation with a government officer and

was detained.

During Chen’s detention, the officials escalated the

pressure on Cheng. They informed her that if she did not

comply with their orders, the government would take her baby

from her, and Chen would be detained for months. If Cheng

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relented, however, they informed her that she could keep the

baby, that Chen would be released, and that the confiscated farm

and truck would be returned to Cheng and her family. To

sweeten the deal, the officials informed Cheng that if she

relented immediately, she would not have to be sterilized, but

instead could have an IUD inserted. “Under such pressure and

out of . . . concern about the fate of [the] new baby and [Chen],”

Cheng acceded to the officials’ orders. (Id. at 738.) As her

declaration indicates, Cheng thought that she could change her

mind and escape the procedure at the last minute, but she was

immediately “dragged” to a minivan and driven to a medical

clinic. (Id.) According to the unopposed statement in Cheng’s

declaration, an IUD is meant to be inserted when a woman is

having her period; because she was not having her period at the

time when she was forced to have the IUD inserted, the

procedure was “very painful” and Cheng “screamed” in pain

when the IUD was inserted. (Id.) After the procedure, she was

required to submit to gynecological examinations every three

months in order to verify the IUD’s presence. She found it

difficult to keep all of these appointments because she had to

work in another city to make ends meet; whenever she missed

an appointment, she was assessed a fine that she could not

afford to pay.

Once her daughter was old enough, Cheng sought to send

her to daycare. The township government informed Cheng that,

because she had disobeyed the family planning laws, her

daughter would not be permitted to attend daycare. She pleaded

with township officials, who ultimately agreed to admit her

daughter but required Cheng to pay twice the regular tuition on

account of her violation of the population control laws.

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Thereafter, township officials learned that one of

Cheng’s neighbors was attempting to have a baby in hiding in

violation of the family planning policy. The officials forced the

neighbor to undergo a sterilization procedure. During the

procedure, Cheng’s neighbor was treated “like a pig”—her

hands and legs were tied, she was not given sufficient

anesthesia, and she screamed throughout the operation. (Id. at

739.) Cheng knew that she would be exposed to the same harm

if she ever attempted to have another child, which she intended

to do. In 2000, she and Chen paid snakeheads to smuggle them

out of China and into the United States.1

B.

Shortly after her arrival in the United States, Cheng was

served with a Notice to Appear and charged with being

removable pursuant to 8 U.S.C. § 1182(a)(6)(C)(1) and

1182(a)(7)(A)(i)(I). She applied for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). On November 1, 2005, the IJ convened a hearing at

which Cheng testified to the facts reviewed above. Cheng

further testified that she had given birth to a second child shortly

after entering the United States, and that at the time of her

testimony she was pregnant with a third child. She testified that

she feared that if she were compelled to return to China with

two foreign-born children, she would be sterilized.

1

“A ‘snakehead’ is a professional smuggler of Chinese

migrants.” Lin, 517 F.3d at 687 n.1 (citation omitted).

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The IJ, finding the entirety of Cheng’s testimony

credible, granted her application for asylum. In an oral decision,

the IJ first found that Cheng had not satisfied her burden of

proving that she was the victim of past persecution—the

involuntary insertion of an IUD and the requirement that Cheng

submit to regular gynecological examinations, the IJ concluded,

were insufficiently severe to constitute persecution. Based upon

the fact that Cheng “would return to China having three children

with two of them being unauthorized,” however, the IJ

concluded that there was a reasonable probability that Cheng

would be sterilized—and, therefore, persecuted, see 8 U.S.C. §

1101(a)(42)—if she were compelled to return to China. (App.

at 277.) The IJ additionally noted that beyond the risk of

sterilization, Cheng faced the prospect of incurring severe

economic distress as a result of the fines and fees associated

with violating China’s family planning policies. The IJ thus

granted Cheng’s asylum application, but certified the matter to

the BIA in light of the dearth of Board precedent on the issues

raised by the case.

The BIA, in a non-precedential opinion, vacated the IJ’s

order and remanded the case for further proceedings. The BIA

first concluded that mandatory IUD insertion alone does not

bring a person within the definition of “refugee” in the

Immigration and Nationality Act (“INA”). Additionally, the

BIA observed that, following the IJ’s decision in this case, it had

issued two precedential decisions addressing the asylum

applications of persons claiming to have been persecuted

pursuant to China’s one-child policies, which made it

appropriate for the IJ to reconsider the case in light of the recent

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decisions.2 The BIA thus remanded the case to the IJ to address

the impact of the new authority upon Cheng’s asylum

application.

On remand, the IJ denied Cheng’s application. He

explained that it was “curious and troublesome,” (id. at 77), that

the BIA had elected not to address the significance of Cheng’s

resistance to the IUD and the resultant harms she encountered

for purposes of the asylum statute’s “other resistance” prong,3

but he interpreted the Board to have implicitly rejected Cheng’s

argument that she satisfied the “other resistance” criteria.

§ 1101(a)(42). As to whether Cheng had a reasonable fear of

future persecution in the form of sterilization based upon her

past experiences and the fact that she then had three children,

2

In these decisions, the BIA held (1) that a person has

been compelled to undergo an abortion, for purposes of the

asylum statute, when a reasonable person would objectively

view the threat for refusing the abortion to be genuine, and when

the threat, if executed, would itself amount to persecution, see

In re T-Z-, 24 I. & N. Dec. 163 (BIA 2007); and (2) that an

asylum applicant who has had a second child in the United

States must have evidence that Chinese nationals with foreign-

born children are subject to sterilization in their province of

origin in order to show a reasonable fear of persecution, see In

re C-C-, 23 I. & N. Dec. 899 (BIA 2006).

3

As we discuss in detail, infra, § 1101(a)(42) makes a

person eligible for asylum if (s)he was persecuted on account of

“other resistance to a coercive population control program.”

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the IJ concluded that the mere fact that Cheng had two foreign-

born children was not enough to satisfy her burden of

establishing a likelihood that she would be sterilized if forced to

return to China. The IJ concluded, finally, that Cheng was not

eligible for withholding of removal or CAT relief.

The BIA affirmed the IJ’s order in a single-member, non-

precedential decision. In its decision, the Board relied primarily

upon In re M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008), a

precedential decision issued after the IJ’s second opinion

wherein the BIA held (1) that the insertion of an IUD does not

constitute persecution in and of itself absent aggravating

circumstances, and (2) that the reinsertion of an IUD typically

is not persecution on account of resistance to a family program,

since women in China whose IUDs fall out or are removed

always have the devices reinserted, whether or not they resisted

the family planning program. See id. at 643 (“[B]ecause

reinsertion is a standard procedure in China . . . [reinsertion of

an IUD is] a routine medical procedure that is carried out

regardless of the manner in which the first IUD was removed or

fell out.”).

Applying In re M-F-W- & L-G- to Cheng’s case, the BIA

held that the insertion of Cheng’s IUD did not occur under

sufficiently aggravating circumstances to constitute persecution.

Even if the mandatory use of an IUD were sufficient to

constitute persecution, moreover, the BIA concluded that Cheng

had failed to establish a nexus between the acts complained of

and her resistance to China’s family planning program. As the

BIA explained, “the respondent has offered no basis to show

that the IUD was inserted because of her resistance to China’s

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family policy and not merely as part of a routine medical and

family planning policy.” (App. at 5.) Any economic harms

Cheng experienced as a result of her township officials’ actions,

the Board stated, were not “substantial” enough to warrant a

finding of persecution. (Id.) The BIA thus dismissed Cheng’s

appeal, and she thereafter filed a timely petition for review with

this Court.

II.

“Because the BIA issued an opinion, rather than a

summary affirmance, we review the BIA’s (rather than the IJ’s)

decision.” Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 106

(3d Cir. 2010) (internal quotation marks and citation omitted).

“We review the BIA’s legal determinations de novo, subject to

the principles of deference articulated in Chevron v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).”

Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010)

(citations omitted). We apply a deferential “substantial

evidence” standard of review to the agency’s factual findings.

McAllister v. Att’y Gen., 444 F.3d 178, 185 (3d Cir. 2006).

Under this standard, “we may reverse only if a reasonable

adjudicator would be compelled to conclude to the contrary.”

Toure v. Att’y Gen., 443 F.3d 310, 316 (3d Cir. 2006)

(quotation marks, brackets, and citation omitted); see also 8

U.S.C. § 1252(b)(4)(B); I.N.S. v. Elias-Zacarias, 502 U.S. 478,

481 (1992). However, our deference under this standard “is

expressly conditioned on support in the record,” Toure, 443 F.3d

at 316 (quotation marks and citation omitted), and “[t]he BIA

may not ignore evidence in the record that favors the petitioner.”

Kang v. Att’y Gen., --- F.3d ----, 2010 WL 2680752, at *4 (3d

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Cir. 2010) (citation omitted); accord Chavarria v. Gonzalez, 446

F.3d 508, 517 (3d Cir. 2006) (“[T]he requirement that the BIA’s

decision be supported by substantial evidence is not an empty

one.”); Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 290-

91 (3d Cir. 2007).

III.

In 1996, Congress passed and President Clinton signed

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”). Among other things, IIRIRA added

the following language to the then-existing definition of

“refugee” in the Immigration and Nationality Act (“INA”):

[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.

Pub. L. No. 104-208, Tit. VI-A, § 601(a)(1), 110 Stat. 3009-546,

3009-689 (codified at 8 U.S.C. § 1101(a)(42)). Cheng argues

that being forced to wear an IUD constitutes “sterilization” for

purposes of this statute, and that, alternatively, she was

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persecuted on account of her resistance to China’s coercive

population control program. We review the IIRIRA-modified

provisions of the INA before addressing the merits of Cheng’s

contentions.

A.

The INA gives the Attorney General the discretion to

grant asylum to non-citizens who were persecuted in the country

of their nationality or who have a reasonable fear of persecution

on account of a variety of statutorily enumerated grounds. See 8

U.S.C. § 1158(b)(1)(A). The INA does not define the term

“persecution,” but instead orients the asylum provisions around

the definition of the word “refugee.” Prior to 1996, the INA

defined “refugee” in relevant part as:

[A]ny person who is outside any country of such

person’s nationality . . . and who is unable or

unwilling to return to, and is unable or unwilling

to avail himself or herself of the protection of,

that 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.

8 U.S.C. § 1101(a)(42)(A).4

4

We recently outlined the bases for proving eligibility

for asylum under this provision as follows:

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In 1996, Congress passed IIRIRA, which, among other

things, expanded the INA’s definition of the term “refugee” to

include persons who have been subjected to, or who reasonably

fear being subjected to, persecution as a result of a coercive

population control program. As we recently explained,

Congress amended § 1101(a)(42)(A) “for the express purpose of

overturning the BIA’s decision in Matter of Chang, 20 I. & N.

Under the terms of this provision, [an asylum

applicant] may show that he is eligible for asylum

by proving either that he was previously

persecuted on account of a statutorily enumerated

ground, or that he has a well-founded fear of

future persecution on account of a statutorily

enumerated ground. Persecution includes, but is

not limited to, threats to life, confinement, torture,

and economic restrictions so severe that they

constitute a threat to life or freedom.

Espinosa-Cortez, 607 F.3d at 107 (quotation marks and citations

omitted). An asylum applicant who establishes that (s)he was

previously persecuted on account of a statutorily enumerated

ground is entitled to a rebuttable presumption that the applicant

has a well-founded fear of future persecution. See Lukwago v.

Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003) (citation omitted).

In the absence of such a presumption, the applicant must

establish a well-founded fear of future persecution through

proof of (1) a subjective fear of persecution (2) that is

objectively reasonable. See Gomez-Zuluaga v. Att’y Gen., 527

F.3d 330, 346 (3d Cir. 2008).

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Dec. 38 (B.I.A 1989).” Lin-Zheng v. Att’y.Gen., 557 F.3d 147,

151 (3d Cir. 2009) (en banc) (citation omitted). In Chang, the

BIA determined that it could not conclude “that implementation

of the ‘one couple, one child’ policy in and of itself, even to the

extent that involuntary sterilizations may occur, is persecution

or creates a well-founded fear of persecution ‘on account of

race, religion, nationality, membership in a particular social

group, or political opinion.’” 20 I. & N. Dec. at 44. The BIA

reasoned that China’s family planning policies were “solely tied

to controlling population” and were not “a guise for acting

against people for reasons protected by the Act,” meaning that

a person subjected to such policies could not be considered a

victim of persecution. Id.

Congress concluded that this reasoning was “unduly

restrictive,” and expanded the definition of “refugee” to include

certain victims of persecution related to coercive family

planning and population control policies. H.R. Rep. No.

104-469(I), at 174 (1996). Congressman Christopher H. Smith

succinctly summarized the expanded definition of “refugee” by

explaining that “[f]orced abortion, forced sterilization, and other

severe punishments inflicted on resisters to . . . [China’s

population control] program are persecution on account of

political opinion.” 142 Cong. Rec. H2589-01 (daily ed. Mar. 21,

1996) (comments of Rep. Smith).

As the BIA has since explained, the IIRIRA-amended

definition of “refugee” creates four new categories of refugees

who are eligible for asylum: (1) “person[s] who ha[ve] been

forced to abort a pregnancy,” (2) “person[s] who ha[ve] been

forced . . . to undergo involuntary sterilization,” (3) “person[s]

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. . . who ha[ve] been persecuted for failure or refusal to undergo

such a procedure or for other resistance to a coercive population

control program,” and (4) “person[s] who ha[ve] . . . a well

founded fear that [they] will be forced to undergo such a

procedure or subject to persecution for such failure, refusal, or

resistance.” 8 U.S.C. § 1101(a)(42)(A); see also In re M-F-W-

& L-G-, 24 I. & N. Dec. at 635. “The first and second

categories of aliens are ‘deemed’ by section 601(a) of the

IIRIRA to be refugees,” In re M-F-W- & L-G-, 24 I. & N. Dec.

at 635—that is, under the plain language of the statute, a person

who has been forced to undergo either an abortion or

sterilization pursuant to a coercive population control program

is automatically eligible for asylum. The third and fourth

categories make asylum available to an immigrant who has not

undergone compelled abortion or sterilization if the applicant

can show past persecution for failing or refusing to undergo

such a procedure or for otherwise resisting the population

control program, or a well-founded fear of abortion,

sterilization, or persecution on account of such failure, refusal,

or resistance.

Cheng argues that she is eligible for asylum under the

second, third, and fourth categories. She contends that being

forced to wear an IUD is tantamount to sterilization, and that

even if it were not, she was previously persecuted and has a

well-founded fear of future persecution on account of her

resistance to China’s coercive population control policies. We

consider these contentions in turn.

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B.

As we noted above, under the plain language of the INA,

if a non-citizen has been compelled to undergo an abortion or

sterilization procedure, she is “deemed” to have been persecuted

on account of political opinion and need not present evidence of

the persecutor’s motive. See 8 U.S.C. § 1101(a)(42)(A). Cheng

argues that being compelled to wear an IUD and being forced to

submit to regular gynecological examinations constitutes

sterilization because it inhibits a woman’s capacity to reproduce

for as long as the IUD remains in place. That is, because under

China’s population control policies the IUD is to remain in place

throughout a woman’s reproductive life, Cheng argues that

forced IUD insertion is tantamount to sterilization and is

therefore per se persecution under the INA. See id. The BIA,

interpreting the term “sterilization” in § 1101(a)(42)(A), has

held otherwise, concluding that being forced to wear an IUD is

different in kind from being forced to undergo a sterilization

procedure. See In re M-F-W- & L-G-, 24 I. & N. Dec. at 636.

For the following reasons, we conclude that the BIA’s

interpretation of the statutory term “sterilization” is entitled to

deference and that Cheng’s IUD-insertion-is-sterilization

argument is unavailing.5

5

We are unpersuaded by the Respondent’s suggestion

that we lack jurisdiction to consider this issue because it was not

raised before the BIA. The Respondent is correct that an

immigrant must “raise or exhaust his or her remedies as to each

claim or ground for relief [before the BIA] if he or she is to

preserve the right of judicial review of that claim,” and that this

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In its recent precedential opinion, In re M-F-W- & L-G-,

the BIA explained that although “[o]ne could argue that the

perpetual use of an IUD, or any other birth control method,

throughout a woman’s child bearing years until menopause

effectively results in a form of sterilization,” the plain language

and legislative history of the statute indicated that forced IUD

waiver rule is jurisdictional. Hoxha v. Holder, 559 F.3d 157,

159 & n.3 (3d Cir. 2009) (quotation marks and citation omitted).

However, while Cheng did not argue this issue when her appeal

was before the BIA for the second time, her initial brief to the

BIA (when the IJ certified the case to the Board) certainly can

be read to raise this issue. In particular, Cheng argued in her

initial brief that “[o]ne of the key issues presented for the

Board’s determination is whether the forced IUD insertion and

gynecological exams are sufficient in itself [sic] for a finding of

past persecution,” and the Board addressed (and rejected) this

argument in its first opinion. (App. at 194, 201 (emphasis

added).) We have explained that “so long as an immigration

petitioner makes some effort, however insufficient, to place the

Board on notice of a straightforward issue being raised on

appeal, a petitioner is deemed to have exhausted her

administrative remedies,” and Cheng’s initial submission is

more than sufficient to satisfy this undemanding standard. Lin

v. Att’y Gen., 543 F.3d 114, 121 (3d Cir. 2008) (quoting Joseph

v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006)). Nor was

Cheng required to reargue the issue before the Board after the

IJ’s second decision, given that the Board already had the

opportunity to address the issue in the first instance. See Popal

v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005).

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insertion was not per se persecution. Id. The BIA looked first

to the statutory language, reasoning as follows:

[T]he verb to “sterilize” is defined as “to make

sterile,” which means “[i]ncapable of sexual

reproduction.” Webster’s II New Riverside

University Dictionary 1137 (1994). This

definition makes clear the permanency of the

sterilization procedure—i.e., that it leaves one

incapable of having children—and leads us to

reject the argument that IUD use should be treated

as the equivalent of sterilization.

Id. The BIA explained that an IUD is “a method of birth

control” that, in contrast with the permanency of sterilization, is

“a temporary measure meant to provide for birth planning and

not to remove all possibility of future birth opportunities.” Id.

(emphasis omitted). The Board confirmed its construction of

the statutory language by looking to IIRIRA’s legislative

history. As the Board explained, “Congress was clearly aware

of China’s use of IUDs as a birth control method separate from

sterilization because both terms were used in describing China’s

family planning policy.” Id. (citation omitted). If Congress had

intended to include forced IUD insertion among the bases for

per se refugee status (as it did with abortion and sterilization),

the BIA reasoned, then it could have done so expressly. See id.

“It is harm of [the] magnitude and permanency [of abortion and

sterilization] that Congress treated as automatically amounting

to qualifying persecution.” Id. at 641.

Our analysis of whether or not to defer to In re M-F-W-

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& L-G-—a precedential opinion of the BIA interpreting the

statute that the agency is charged to implement—is governed by

the familiar two-step inquiry of Chevron. See, e.g., Kaplun, 602

F.3d at 265. First, we assess “whether Congress has directly

spoken to the precise question at issue.” Ndayshimiye v. Att’y

Gen., 557 F.3d 124, 129 (3d Cir. 2009) (quoting Chevron, 467

U.S. at 842). If the plain meaning of the statute is unambiguous,

then the statutory text controls, and no deference to the agency’s

interpretation of that text is called for. See Chang v. I.N.S., 119

F.3d 1055, 1060 (3d Cir. 1997). If, however, “by employing

traditional tools of statutory construction” we are unable to

arrive at an unambiguous reading of the statutory language, Lee

v. Ashcroft, 368 F.3d 218, 222 (3d Cir. 2004) (quotation marks

and citation omitted), then “we proceed to the second step and

determine whether the BIA’s reading of the provision is a

reasonable one.” Ndayshimiye, 557 F.3d at 129 (citation

omitted). If the agency’s interpretation is reasonable, “we must

let the interpretation stand.” Id. To determine that the Board

has reasonably construed the statute, we “need not conclude that

the agency construction was the only one it permissibly could

have adopted . . . or even the reading the court would have

reached if the question initially had arisen in a judicial

proceeding.” Chevron, 467 U.S. at 843 n.11 (citations omitted);

see also Chang, 119 F.3d at 1060 (“[W]e will not substitute our

own judgment for that of the BIA, but we must also reject any

interpretation by the BIA that is ‘arbitrary, capricious, or

manifestly contrary to the statute.’” (quoting Chevron, 467 U.S.

at 844)).

Turning to the first step of the inquiry, we must

determine whether or not “Congress has directly spoken to the

-20-

precise question at issue,” Chevron, 467 U.S. at 842—that

question being whether § 1101(a)(42)’s use of the term

“involuntary sterilization” encompasses compelled lifelong IUD

usage. Cheng argues that the term “involuntary sterilization”

unambiguously includes forced IUD insertion, contending that

women who have been compelled to wear IUDs have undergone

“an involuntary procedure which leaves them incapable of

sexual reproduction.” (Pet’r Br. 31.) According to Cheng, the

fact that Congress did not specify any particular type of

sterilization procedure (such as tubal ligation, vasectomy, or

hysterectomy) indicates that Congress meant for the term

“sterilization” to encompass any procedure that renders a person

incapable of reproduction, including forced IUD insertion.

Because under China’s population control program, compelled

IUD usage is accompanied by regular gynecological

examinations to monitor the continued presence of the device,

Cheng argues that forced IUD insertion leaves a woman

permanently incapable of reproduction and thus is

unambiguously a form of sterilization.

We cannot agree with Cheng that “Congress has directly

spoken to the precise question” of whether sterilization

encompasses the compelled use of a birth control device like an

IUD. Chevron, 467 U.S. at 842. As the BIA reasoned in In re

M-F-W- & L-G-, the plain meaning of the word “sterilization”

does not unambiguously encompass temporary methods of

inhibiting a person’s reproduction such as the forced use of

IUDs and other birth control devices. Webster’s defines the

word “sterilization” as “a procedure by which a human or other

animal is made incapable of reproduction— compare

CASTRATION, SPAYING.” Webster’s New Int’l Dictionary

-21-

2238 (3d ed. 1993). On its face, “sterilization” appears to

include only procedures that permanently eliminate a person’s

reproductive capacity, as the dictionary references to such

permanent and irreversible procedures as castration and spaying,

and the use of the phrase “made incapable,” make clear. Id.; see

Gerber v. Hickman, 291 F.3d 617, 622 (9th Cir. 2002) (en banc)

(“Sterilization is . . . permanent[] and irreparable.”); Robinson

v. Parrish, 720 F.2d 1548, 1550 (11th Cir. 1983) (per curiam)

(“[S]terilization . . . [is a procedure that results in] the permanent

inability to have children.”) (quotation marks and citation

omitted).

The forced insertion of an IUD certainly does not fall

unambiguously within this category, since an IUD can be

removed and its effect upon a woman’s reproductive capacity

eliminated.6 Cheng attempts to undermine this distinction by

6

Indeed, taken to its extreme, Cheng’s attempt to read

the permanency out of “sterilization” would lead to such bizarre

propositions as considering the use of any contraceptive (such

as a condom) to be “sterilization,” since all contraceptives

inhibit reproduction. At the risk of stating the obvious, the use

of a contraceptive ordinarily would not amount to sterilization,

since “[s]terilization is . . . permanent[] and irreparable” and the

use of a contraceptive—even an IUD, which is designed to

remain in place until removed by a physician—is not. Gerber,

291 F.3d at 622. Although the question of whether monitored,

lifelong use of an IUD can be considered sterilization (because

it is, in effect, a permanent or semi-permanent form of

contraception) presents a closer call, under Chevron, close calls

-22-

noting that it is possible (although very difficult) to undo certain

sterilization procedures, such as tubal ligation, and that the

permanence of IUD insertion in China is all but guaranteed by

the requirement of regular gynecological examinations. At

most, however, Cheng’s argument suggests that the term

“sterilization” is ambiguous when applied at the margins to such

non-obvious examples as semi-permanent and monitored IUD

insertions, and when a statutory provision is ambiguous,

Chevron dictates that we defer to the agency’s reasonable

construction of that provision. See, e.g., Ndayshimiye, 557 F.3d

at 129.

We conclude that the term “involuntary sterilization” by

definition contemplates a permanent inhibition of reproductive

capacity, and we find that Congress has not directly spoken to

the precise question of whether compelled IUD insertion, plus

monitoring, falls within the ambit of the statutory term. See

Huang v. Holder, 591 F.3d 124, 129 (2d Cir. 2010) (concluding

at the first step of the Chevron analysis that “Congress has not

determined whether . . . an IUD insertion constitutes

sterilization”).

Turning to the second step of the Chevron analysis, we

further conclude that the BIA’s interpretation of the statute is

reasonable and entitled to deference. An agency’s interpretation

of the statute it is charged with administering is entitled to

deference if it “represents a reasonable accommodation of

resolving ambiguous statutory terms may be for the agency, not

the court, to decide.

-23-

conflicting policies that were committed to the agency’s care by

the statute . . . unless it appears from the statute or its legislative

history that the accommodation is not one that Congress would

have sanctioned.” Chevron, 467 U.S. at 845 (quoting United

States v. Shimer, 367 U.S. 374, 383 (1961)).

Here, the Board’s decision that forced IUD insertion is

insufficiently permanent to constitute sterilization is not only a

permissible construction of the statute’s terms, but it also finds

support in the legislative history of IIRIRA. As the BIA

reasoned, the legislative history of IIRIRA reflects an

understanding that sterilization and birth control methods (such

as IUDs) are distinct means of inhibiting population growth.

See In re M-F-W- & L-G-, 24 I. & N. Dec. at 636 (“Congress

was clearly aware of China’s use of IUDs as a birth control

method separate from sterilization because both terms were used

in describing China’s family planning policy.” (citation

omitted)). For example, testimony before the House

Subcommittee on International Operations and Human Rights

catalogued the number of sterilizations, IUD insertions, and

abortions in a given year, suggesting that sterilizations and IUD

insertions are categorically distinct means of enforcing a

population control program. See Coercive Population Control

in China: Hearings Before the Subcomm. on Int’l Operations

and Human Rights of the H. Comm. on Int’l Relations, 104th

Cong. 8 (1995). Cheng has identified no contrary authority

suggesting that Congress equated forced IUD insertion with

sterilization.

In sum, we conclude that the BIA’s construction of the

statute is reasonable and entitled to deference. See Huang, 591

-24-

F.3d at 129-30 (“Under step two, we conclude that the BIA’s

conclusion that an involuntary IUD insertion is not an

involuntary sterilization is permissible. The BIA’s reasoning

that sterilization makes one permanently incapable of having

children, whereas an IUD is a temporary measure, is

reasonable.”). We thus reject Cheng’s contention that IUD

insertion is tantamount to sterilization.

C.

The fact that IUD insertion is not equivalent to

sterilization does not affect the remainder of Cheng’s argument,

which focuses on her more persuasive contention that she was

persecuted, not sterilized. In particular, Cheng argues that she

qualifies for asylum under § 1101(a)(42)’s prong authorizing the

Attorney General to grant asylum to a non-citizen who was

persecuted on account of the asylum applicant’s “other

resistance to a coercive population control program.” We

review the BIA’s approach to “other resistance” claims, and

explain why the Board’s decision in this case is not supported by

substantial evidence, in turn below.

1.

We have not, to date, had occasion to address the “other

resistance” provision of § 1101(a)(42) in significant detail,7 and

7

In Li v. Attorney General, 400 F.3d 157, 159 (3d Cir.

2005), we held that the petitioner had been subjected to

economic persecution on account of his resistance to China’s

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indeed, very few courts have decided cases based upon the

“other resistance” language.8 The BIA, however, discussed the

provision in depth in In re M-F-W- & L-G- (the same 2008

decision, discussed supra, in which the Board held that forced

IUD insertion is not tantamount to sterilization). In that case,

the petitioner’s other resistance claim was based upon the fact

that she removed an IUD that had been inserted after the birth of

her first child; when the authorities discovered that the IUD had

been removed, they took the petitioner to have an IUD

reinserted after detaining her for three days. 24 I. & N. Dec. at

family planning policies, but our focus in that case was upon

whether the petitioner had shown past economic persecution, not

on the requirements for establishing an “other resistance”

persecution claim.

8

No court appears to have decided an “other resistance”

case since the BIA decided In re M-F-W- & L-G-. Before the

BIA’s decision in that case, the most in-depth treatment of the

“other resistance” language was the Ninth Circuit’s en banc

decision in Li v. Ashcroft, 356 F.3d 1153, 1156 (9th Cir. 2004),

which held that where “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,” persecution on account of “other resistance” has

been established. The Ninth Circuit emphasized the “crude and

aggressive” and “rape-like” nature of the examination procedure

in concluding that the petitioner had been persecuted on account

of her resistance to the family planning laws. Id. at 1158 & n.4.

-26-

634-35.

Evaluating the petitioner’s claim that she qualified for

asylum based upon her resistance to the family planning

policies, the BIA explained that, unlike persons who have been

subjected to forced abortion or sterilization, who under the

statute have per se been subjected to persecution on account of

political opinion, see § 1101(a)(42), a person claiming to have

been persecuted due to her resistance to a population control

policy must still prove that she was persecuted and that the

persecution was on account of such resistance. Specifically, the

Board held that in order to proceed under the “other resistance”

provision, the asylum applicant must prove that “(1) she resisted

China’s family planning policy, (2) she has been persecuted (or

has a well-founded fear of persecution), and (3) the persecution

was or would be because of the respondent’s resistance to the

policy.” In re M-F-W- & L-G-, 24 I. & N. Dec. at 637 (citation

omitted).

The BIA interpreted the first of these

prongs—resistance—broadly, explaining that acts such as

removing an IUD or refusing to attend a gynecological

appointment satisfy the statutory element of resistance “because

such acts, while arguably not comprising active or forceful

opposition to China’s family planning policy, would certainly

thwart the goals of the plan and be viewed with disfavor by

Chinese officials implementing the plan.” Id. at 638. By

contrast, the BIA explained that “simple grudging compliance”

with the population control program would not amount to

resistance. Id.

-27-

As to the second prong—persecution—the Board

explained that “the words ‘persecuted’ and ‘persecution’ in [the

IIRIRA-modified language within the INA’s definition of

‘refugee’] derive their meaning from the standard use of these

terms in contexts other than those related to population control.

They do not enjoy some special separate meaning within the

context of [population control] cases.” Id. at 639. Assessing

whether compelled IUD insertion in and of itself is persecutory,

the Board noted that although the involuntary insertion of an

IUD is intrusive, the procedure is typically painless and its

effects are temporary. The Board explained:

[S]imply requiring a woman to use an IUD, and

other more routine methods of China’s

implementation of its family planning policy, do

not generally rise to the level of harm required to

establish persecution . . . . [E]xamples of routine

acts implementing China’s family planning policy

that are lacking in harm sufficient to constitute

persecution include reinsertion of an IUD after

the removal of an IUD, fines for having removed

the IUD that are not excessive, regularly required

gynecological exams, and other routine fines and

threats for disobeying the policy.

Id. at 640-41 (citations omitted). The BIA made clear that

having an IUD inserted could amount to persecution in some

situations, but it explained that in order “to rise to the level of

harm necessary to constitute ‘persecution,’ the insertion of an

IUD must involve aggravating circumstances.” Id. at 642. The

Board did not elaborate upon the circumstances that would be

-28-

sufficiently aggravating to make forced IUD insertion

persecutory in and of itself.

Finally, the BIA explained that there must be a nexus

between the persecution and the person’s resistance to the

population control program in order for a non-citizen to qualify

for asylum, and that in the context of IUD insertion, this nexus

may be difficult to establish. See id. at 642-43. The Board

reasoned:

The question raised here and in many “other

resistance” cases is whether the reinsertion of an

IUD was because of the alien’s resistance to the

insertion of the first IUD, or because of its

removal, or merely because reinsertion is a

standard procedure in China. If the latter, an alien

may be unable to meet her burden of establishing

that the IUD insertion was “for,” or because of,

her resistance to China’s policies. Rather, it

would then be a routine medical procedure that is

carried out regardless of the manner in which the

first IUD was removed or fell out. This would not

be sufficient to establish the nexus required under

section 101(a)(42) of the Act.

Id. at 643. The Board concluded that the petitioner had merely

experienced the routine implementation of China’s family

planning policy; the forced insertion of an IUD in that case was

insufficiently harmful to constitute persecution and was not

related to the petitioner’s resistance to the policy. See id. at 644.

-29-

2.

Applying the framework of In re M-F-W- & L-G- to this

case, the BIA, in a single-member, non-precedential decision,

concluded that Cheng failed to demonstrate that she had been

persecuted or that she had a reasonable fear of future

persecution on account of her resistance to China’s population

control policies. With regard to the resistance prong, the Board

appears to have assumed that Cheng’s conduct amounted to

resistance to the one-child policy. The BIA concluded,

however, that Cheng did not satisfy the persecution or nexus

prongs. As we now explain, we agree with Cheng that the

Board’s analysis of both the persecution and nexus prongs is not

supported by substantial evidence, and we therefore grant the

petition for review.

a. Resistance

As an initial point, there can be no doubt that Cheng

resisted China’s population control policies (and, as we have

noted, the Board assumed as much). In In re M-F-W- & L-G-,

the BIA explained that actions that “thwart the goals of the

[population control] plan and [are] viewed with disfavor by

Chinese officials implementing the plan” constitute “resistance”

under § 1101(a)(42), even if the actions are not “forceful.” 24

I. & N. Dec. at 638. Cheng repeatedly refused to comply with

multiple officials’ increasingly strenuous demands that she abort

her first pregnancy, provoking “fur[y],” escalating threats, and

various enforcement actions on the part of the officials. (App.

at 736.) Cheng fled the township to have her baby, defied

orders that she undergo a sterilization procedure, had to be

-30-

dragged to the clinic to have the IUD inserted, and missed

multiple gynecological appointments. Her actions were

significantly more defiant of China’s family planning policies

than were the more limited actions held to constitute resistance

in In re M-F-W- & L-G-.

Although the Government did not make the point in its

brief, at oral argument, it appeared for the first time to suggest

that Cheng’s resistance to the officials’ demands that she

undergo an abortion was not “resistance to a coercive population

control program” within the meaning of the INA because Cheng

was unmarried at the time when her acts of resistance transpired.

8 U.S.C. § 1101(a)(42). The Government argues that China’s

laws forbidding unmarried couples from procreating are not part

of a “population control program,” but are instead aimed at

preventing people from having illegitimate children, and so

Cheng’s resistance was to China’s illegitimacy laws, not its

population control laws. Id.

We reject this singularly unpersuasive contention. The

Country Report prepared by the State Department addresses

asylum claims based upon China’s National Marriage Law

(which proscribes procreation by unmarried couples) under the

umbrella of “claims based on population policies” and “claims

based on coercive family planning.” 9 (App. at 442

9

We have recognized that such reports are “the most

appropriate and perhaps the best resource for information on

political situations in foreign nations.” McAllister, 444 F.3d at

189 (quotation marks and citation omitted).

-31-

(capitalization omitted, emphasis added).) The Report thus

indicates that the restriction on procreation by unmarried

couples is a component of China’s population control regime,

and the Government has identified no evidence supporting a

contrary conclusion.10 Moreover, the Report’s treatment of the

National Marriage Law as part and parcel of the population

control program is eminently sensible. China’s one-child-per-

couple policy is well-known, (id. at 443), and it would obviously

undermine the population control program if married Chinese

couples were held to a one-child limit but unmarried couples

could procreate without restriction. In sum, China’s prohibition

on procreation by unmarried couples is undeniably part of the

population control program, and the uncontradicted evidence

conclusively establishes that Cheng resisted that program.11

10

Indeed, the Government’s own brief likewise treats the

National Marriage Law as a component of China’s population

control program, notwithstanding its contention at oral argument

that the ban on procreation by unmarried couples is not part of

the population control policy. (Resp’t Br. 24.)

11

Our concurring colleague takes issue with the BIA’s

broad interpretation of the resistance prong and would hold that

the phrase “resistance to a coercive population control program”

should be restricted “to resistence only to abortion or

sterilization procedures, not to resistence to any method of

population control.” (Concurring Op. at 1.) The principles of

Chevron deference and the language of § 1101(a)(42) compel us

to disagree. Because the text of § 1101(a)(42) does not clearly

and unambiguously indicate that Congress intended the phrase

-32-

b. Persecution

With respect to whether she was persecuted, Cheng

argues that the Board gave little or no consideration to the

circumstances that distinguish her case from the mill-run IUD

insertion case. In effect, Cheng contends that in focusing on the

IUD insertion itself without looking at the pattern of

mistreatment within which it occurred, the Board missed the

forest (the persecution) for the trees (the IUD insertion). For the

following reasons, we agree that the Board’s conclusory

statement that Cheng “has not shown aggravating

“coercive population control program” to include only abortion

and sterilization, the BIA’s reasonable interpretation of the

provision as encompassing methods of population control other

than abortion and sterilization, such as the forced insertion of

IUDs, is entitled to deference under Chevron. See Chang, 119

F.3d at 1060. Further, as the concurring opinion itself

recognizes, courts—including this Court—have routinely

interpreted the phrase “resistance to a coercive population

control program” to extend beyond acts of resistance to abortion

and sterilization alone. See, e.g., Huang v. Att’y General, ---

F.3d ----, 2010 WL 3489543, at *5 n.5 (3d Cir. 2010) (observing

in dicta that “[m]andatory birth-control measures short of

abortion or sterilization, such as insertion of an IUD or required

gynecological screenings . . . . qualify as a ‘coercive population

control program’”); Li, 400 F.3d at 159 (having four children in

violation of the one-child policy is resistance to population

control regime); Li, 356 F.3d at 1156 (declaring intent to have

multiple children is resistance to population control program).

-33-

circumstances” is not supported by substantial evidence.12 (Id.

at 11.) In our view, the Board may not, in determining whether

an asylum applicant suffered past persecution, take a single

instance of mistreatment (here, the IUD insertion) from a larger

pattern of abuse and confine its persecution analysis to the

question of whether that single instance was, in and of itself,

persecutory. Instead, “[i]ncidents alleged to constitute

persecution . . . must be considered cumulatively.”

Edimo-Doualla v. Gonzales, 464 F.3d 276, 283 (2d Cir. 2006)

(Sotomayor, J.) (citations omitted).

Persecution, we have made clear, “is an extreme concept

that does not include every sort of treatment our society regards

as offensive.” Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d

Cir. 2007) (quoting Fatin v. I.N.S., 12 F.3d 1233, 1243 (3d Cir.

1993)); accord Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 341

12

The Government does not appear to suggest that the

Board’s treatment of the persecution issue was in fact adequate.

Instead, the Government contends that the BIA “presumed

without deciding” that Cheng was persecuted and rested its

holding exclusively on the nexus prong. (Resp’t Br. 21.) The

Government misreads the BIA’s decision. After discussing the

nexus issue, the BIA stated that Cheng “also has not shown

aggravating circumstances” and that she failed “to demonstrate

the substantial economic disadvantage necessary for . . . a

finding of persecution.” (App. at 5 (emphasis added).)

Although it did so in terms that might generously be described

as succinct, the Board did purport to resolve the persecution

issue.

-34-

(3d Cir. 2008) (stating that persecution does not encompass

“every act that our society might regard as unfair, unjust,

unlawful, or unconstitutional”). Our oft-quoted, non-exclusive

list of examples of persecution “include[s] threats to life,

confinement, torture, and economic restrictions so severe that

they constitute a threat to life or freedom.” Fatin, 12 F.3d at

1240. But while the concept of persecution is “extreme,” id. at

1243, it is not an impossible standard to satisfy. The BIA,

relying upon the legislative history of the INA, has emphasized

that “[t]he harm or suffering need not [only] be physical, but

may take other forms, such as the deliberate imposition of

severe economic disadvantage or the deprivation of liberty,

food, housing, employment or other essentials of life,” and that,

with regard to the non-physical aspects of persecution, an

applicant “need not demonstrate a total deprivation of livelihood

or a total withdrawal of all economic opportunity in order to

demonstrate harm amounting to persecution.” In re T-Z, 24 I.

& N. Dec. 163, 171, 173 (BIA 2007) (quoting H.R. Rep. No.

95-1452, at 5 (1978)); accord Li v. Att’y Gen., 400 F.3d 157,

169 (3d Cir. 2005); see also I.N.S. v. Stevic, 467 U.S. 407, 428

n.22 (1984) (explaining that persecution is a “broader concept

than threats to life or freedom”); Ngengwe, 543 F.3d at 1036;

Chanchavac v. I.N.S., 207 F.3d 584, 589 (9th Cir. 2000);

Marquez v. I.N.S., 105 F.3d 374, 379 (7th Cir. 1997).

Moreover, in determining whether actual or threatened

mistreatment amounts to persecution, “[t]he cumulative effect

of the applicant’s experience must be taken into account”

because “[t]aking isolated incidents out of context may be

misleading.” Manzur v. Dep’t of Homeland Sec., 494 F.3d 281,

290 (2d Cir. 2007) (quotation marks and citations omitted);

-35-

accord Gomez-Zuluaga, 527 F.3d at 343 (explaining that we do

not evaluate incidents in a vacuum, but instead must examine

them “in the context of the . . . overall trajectory” of

mistreatment); Toure, 443 F.3d at 318 (assessing events

underlying persecution claim “[i]n the aggregate” (citation

omitted)); Li, 400 F.3d at 169 (same); Ngengwe, 543 F.3d at

1036; In re O-Z- & I-Z; 22 I. & N. Dec. 23, 25-26 (BIA 1998).

Even if one incident of mistreatment is not, in and of

itself, severe enough to constitute persecution, a series of

incidents of physical or economic mistreatment could, taken

together, be sufficiently abusive to amount to persecution. See

Edimo-Doualla, 464 F.3d at 283. “Where no single incident

stands out above the others, sometimes a small incident may be

‘the last straw’; and although no single incident may be

sufficient, all the incidents related by the applicant taken

together, could make [the applicant’s] fear ‘well-founded.’”

Poradisova v. Gonzales, 420 F.3d 70, 80 (2d Cir. 2005) (quoting

Office of the United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for Determining Refugee

Status Under the 1951 Convention and the 1967 Protocol

Relating to the Status of Refugees ¶ 201 (Geneva 1992)).13

In this case, the Board stated that, beyond the insertion of

13

The Supreme Court has noted that the Handbook

quoted in Poradisova “provides significant guidance in

construing the Protocol, to which Congress sought to conform,”

even though the Handbook is not binding authority. I.N.S. v.

Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987).

-36-

an IUD, Cheng “has not shown aggravating circumstances.”

(App. at 5.) In reaching this conclusion, however, the Board did

not take into account many of the acts of mistreatment

unequivocally established by Cheng’s uncontradicted evidence.

First, the Board failed to consider some of the most serious

threats levelled at Cheng, including the officials’ statement that

they would take her daughter from her and their threat to detain

her boyfriend for months if she did not comply with their

demand that she undergo a sterilization procedure. These

threats are unquestionably relevant to the question of whether

Cheng experienced past persecution (and whether she has a

reasonable fear of future persecution). Cf. Ngengwe, 543 F.3d

at 1037 (explaining that “[t]he IJ did not consider Ngengwe’s

argument that her in-laws . . . threatened to take her children,”

a fact that is material to the assessment of “whether non-physical

persecution occurred”). The threats are, we note, especially

important in light of the fact that individual instances of

mistreatment must be assessed within the “overall trajectory of

the harassment,” which in this case, as the fulfillment of the

threat to take Cheng’s farm demonstrates, is one of escalating

and consummated threats. Gomez-Zuluaga, 527 F.3d at 343

(further explaining that “[w]eighing this final incident in the

context of the prior incidents shows that Petitioner’s allegations

regarding the imminence and menacing nature of the [earlier]

threats are justified”); accord Manzur, 494 F.3d at 290;

Edimo-Doualla, 464 F.3d at 283.

Moreover, the Board did not mention Cheng’s testimony,

found credible by the IJ, that the IUD insertion procedure was

performed in a hurried and improper manner that caused her

extreme pain. This fact is significant to the persecution analysis

-37-

because the BIA’s conclusion in In re M-F-W- & L-G- that an

IUD insertion did not itself constitute persecution rested in no

small part upon its understanding that IUD insertion “typically

does not cause substantial pain or lasting side effects.” 24 I. &

N. Dec. at 641 (citation omitted); see Li v. Gonzales, 405 F.3d

171, 179 (4th Cir. 2005) (explaining, pre-In re M-F-W- & L-G,

that IUD insertion could constitute persecution if the “manner

or means” of insertion were harsh or atypical or if the procedure

were accompanied by “force, physical abuse, or other equivalent

circumstances”).

Finally, and most importantly, the Board did not

adequately address the significance of the financial hardships

imposed upon Cheng in direct response to her resistance to the

family planning officials’ orders. We have been clear that

“economic deprivation, if sufficiently severe, can constitute

persecution within the meaning of asylum law.” Li, 400 F.3d at

159. In Li, for example, the petitioner was fined the equivalent

of twenty months’ salary, was blacklisted from government

employment, and had various household items confiscated on

account of his resistance to China’s one-child policy. See id. Li

was, however, able to get by with “some temporary jobs.” Id. at

160 (quotation marks omitted). We explained that although

“Li’s family did not reach near-starvation levels, we can fairly

say that the economic restrictions allegedly faced by the Li

family were ‘severe’ . . . . [because for] a relatively poor family[,

such hardships] . . . could threaten [their] freedom if not their

lives.” Id. at 169. We emphasized that the economic

deprivations visited upon Li were “deliberately imposed as a

form of punishment because of his violation of China’s

population control policy, rather than being the result of

-38-

‘natural’ economic downturns or generally harsh conditions

shared by others in China.” Id.; accord Boykov v. I.N.S., 109

F.3d 413, 417 (7th Cir. 1997) (explaining that the “economic

harm required . . . [to show persecution] must be deliberately

imposed as a form of punishment” (quotation marks, citations,

and some alterations omitted)). We held, in short, that when an

economic sanction is sufficiently severe, and where it is

deliberately imposed by the government as punishment,

economic persecution may be established. See Li, 400 F.3d at

169.

We are not alone in recognizing that severe economic

sanctions constitute persecution within the meaning of the INA,

see, e.g., Ahmed v. Gonzales, 467 F.3d 669, 673 (7th Cir. 2006),

and the BIA itself previously reached the same conclusion,

emphasizing that Congress intended the concept of persecution

to reach not only physical harm, but also “deprivation[s] of

liberty, food, housing, employment or other essentials of life.”

In re T-Z, 24 I. & N. Dec. at 171 (quoting H.R. Rep. No.

95-1452, at 5 (emphasis omitted)). Indeed, consideration of the

economic aspects of persecution in the context of China’s

coercive population control measures is especially appropriate

in light of the legislative history of IIRIRA. Both the House and

Senate Reports for IIRIRA recognized that “[c]ouples with

unauthorized children are subjected to excessive fines, and

sometimes their homes and possessions are destroyed,” and

emphasized that “[t]he United States should not deny protection

to persons subjected to such treatment.” H.R. Rep. No.

104-469(I), at 174; see also S. Rep. No. 104-95, at 92 (1995).

Cheng’s uncontested and credible evidence shows that

-39-

she was subjected to such treatment. After Cheng refused to

comply with the officials’ orders that she have an abortion, local

government officials confiscated her family farm and truck, and

forbade the entire family from working on the farm. Cheng’s

credible testimony made unmistakably clear the devastating

impact that such a deprivation imposed upon her and her

family—she stated in no uncertain terms that the family

“depended on the farm to make a living,” a fact that the IJ

appears to have credited when describing the “serious” impact

that even a modest fine would have on a family of the Chengs’

limited means.14 (App. at 76, 736.)

The BIA’s discussion of Cheng’s economic persecution

was limited to its statement that Cheng “has failed to

demonstrate the substantial economic disadvantage necessary

for such a finding of persecution.” (Id. at 5.) This statement is

not supported by substantial evidence. The imposition of

“modest fines” is, of course, insufficient to rise to the level of

persecution. Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir. 2005)

(per curiam); accord In re M-F-W- & L-G-, 24 I. & N. Dec. at

641 (explaining that “fines . . . that are not excessive” do not

amount to persecution). But “an extraordinarily severe fine or

wholesale seizure of assets may be so severe as to amount to

14

We do not overlook the fact that, as in Li, Cheng was

able to “get by” with a job she located in another city. Li, 400

F.3d at 167. We and the BIA have recognized that an asylum

applicant need not necessarily “reach near-starvation levels” in

order for severe economic sanctions to constitute persecution.

Id. at 169; accord In re T-Z, 24 I. & N. Dec. at 171.

-40-

persecution, even though the basic necessities of life might still

be attainable.” In re T-Z, 24 I. & N. at 171 (citation omitted);

accord Li, 400 F.3d at 169. A wholesale seizure of assets is

precisely what occurred here, as the uncontradicted facts

credited by the IJ clearly establish. Surely the seizure of

property as significant as the family farm and truck, when those

very assets served as the exclusive source of the family’s

livelihood, (App. at 736), constitutes a severe economic sanction

that “could threaten [the] family’s freedom if not their lives.”

Li, 400 F.3d at 169. And, as was the case in Li, there can be no

doubt that Cheng’s financial hardship was imposed as a sanction

and was not the product of natural shifts in economic conditions;

as in Li, the confiscation of the farm was “imposed as a form of

punishment because of [Cheng’s] violation of China’s

population control policy.” Id.

We conclude, in sum, that the BIA’s analysis of past

persecution, which failed to consider credible evidence of past

persecution in Cheng’s case and did not address the impact of

the severe economic sanctions imposed upon Cheng, is not

supported by substantial evidence. See Espinosa-Cortez, 607

F.3d at 113-14 (“An applicant for asylum is entitled to a

reasoned analysis, not one which wholly disregards relevant,

probative evidence.” (quoting Mema v. Gonzales, 474 F.3d 412,

419 (7th Cir. 2007))); accord Kang, 2010 WL 2680752, at *4.

It is clear that by focusing exclusively on the forced insertion of

an IUD to the exclusion of all other evidence of mistreatment,

the BIA failed to consider “[t]he cumulative effect of [Cheng’s]

experience.” Manzur, 494 F.3d at 290. We agree with Cheng

that when considered “[i]n the aggregate,” Toure, 443 F.3d at

318, the mistreatment she experienced—including the

-41-

confiscation of the farm and truck upon which her family’s

livelihood depended, the threat to take her daughter from her

and continue to detain her boyfriend, the forced insertion of an

IUD under circumstances that caused intense physical pain, and

the imposition of fines for having an unauthorized child and for

missing gynecological appointments—compels the conclusion

that she suffered past persecution.

c. Nexus

Finally, we agree with Cheng that the BIA’s conclusion

that there was no nexus between her acts of resistance and the

mistreatment visited upon her is not supported by substantial

evidence. The BIA’s analysis of this issue was brief—it

explained, citing In re M-F-W- & L-G-, that “where the

insertion or reinsertion of an IUD is carried out as part of a

routine medical procedure, an alien will have difficulty showing

the required nexus, i.e., that the procedure was . . . because of

her resistance to China’s family planning policy.” (App. at 4.)

The BIA concluded that Cheng “offered no basis to show that

the IUD was inserted because of her resistance to China’s family

policy and not merely as part of a routine medical and family

planning policy.” (Id. at 5.) The Board stated that Cheng had

merely shown “an act of resistance and an unconnected

imposition of harm.” (Id.)

A reasonable adjudicator, we conclude, would be

compelled to disagree. As with its persecution analysis, the

BIA’s conclusion that the mistreatment Cheng suffered was

“unconnected” to her defiance of the population control regime

stems from its focus upon the IUD insertion alone without

-42-

regard to the history of mistreatment within which it transpired.

(Id.) Such an analytical error can be significant not just to the

issue of persecution, but also to the nexus prong. As the Second

Circuit has noted, not only is it possible that an “accumulation

of harm from the individual incidents may rise to the level

necessary for persecution even though an individual incident

may not,” but that same accumulation or trajectory of

mistreatment may itself provide circumstantial evidence of the

alleged persecutor’s motive in the absence of direct evidence of

motive or nexus. Manzur, 494 F.3d at 290. As the court went

on to explain:

[T]he motive for the harm inflicted must be

analyzed in light of the context in which the harm

occurred. The pattern provides context for the

petitioners’ claims and may lend evidentiary

support to a conclusion that individual incidents

of harm were in fact “on account of” a ground

protected by the Act . . . .

Id. (quotation marks and internal citation omitted); cf.

Espinosa-Cortez, 607 F.3d at 108-09 (noting that “the INA

makes motive critical,” but an asylum applicant may rely on

circumstantial evidence of the persecutor’s motive, since

“persecutors are hardly likely to submit declarations explaining

exactly what motivated them to act” (quotation marks and

citations omitted)). Put differently, where direct evidence of a

nexus between an act of resistance and an act of mistreatment

(such as IUD insertion) is lacking, the trajectory of abuse may

provide circumstantial evidence of motive, and such a trajectory

must be accounted for in the nexus analysis. See Manzur, 494

-43-

F.3d at 290.

In Cheng’s case, such circumstantial evidence is

unnecessary to establish the nexus between her mistreatment and

her defiance of the family planning policies, because ample

direct evidence, credited in its entirety by the IJ, compels the

conclusion that she was persecuted on account of her resistance.

See Baghdasaryan v. Holder, 592 F.3d 1018, 1025 (9th Cir.

2010) (“Because the BIA ignored this compelling evidence of

nexus, its conclusion that [petitioner] failed to establish nexus

is not supported by substantial evidence.”). As Cheng correctly

argues, “in every instance that [she] had an opportunity to

comply with family planning officials, she chose to resist.”

(Pet’r Br. 27.) More to the point, the record unequivocally

establishes that in response to each of these acts of resistance,

officials threatened and punished her, and in each instance the

officials expressly linked the sanctions to Cheng’s defiance of

the family planning policies—if Cheng did not agree to have an

abortion, she would lose her job and be forced to terminate her

pregnancy; because Cheng did not terminate her pregnancy,

officials confiscated her family farm and truck and forbade her

from working on the farm; if Cheng did not agree to be

sterilized, her daughter would be taken from her and the

detention of her boyfriend would be prolonged; because Cheng

had an illegitimate child, she was forced to pay social

compensation fees to send her daughter to daycare; and because

Cheng missed gynecological examinations, she was assessed

fines that she could not afford to pay. The IJ found the entirety

of Cheng’s account of these facts credible—as the Board itself

acknowledged, “the facts of this case are not in serious dispute.”

(App. at 5.) In light of this abundance of credible evidence

-44-

expressly linking the mistreatment Cheng suffered to her

resistance to the population control program, we conclude that

“a reasonable adjudicator would be compelled” to reject the

BIA’s characterization of these harms as being unrelated to her

acts of resistance. Toure, 443 F.3d at 316 (quotation marks,

alteration, and citation omitted).

The Board concluded otherwise by treating the IUD

insertion as the only relevant act of mistreatment, apparently

relegating the remainder of Cheng’s experiences to a category

of “aggravating circumstances” that it decided are pertinent only

to the question of whether the IUD insertion itself was

sufficiently harmful to constitute persecution. But the INA calls

for a determination of persecution, not aggravating

circumstances, and, as we have explained, the events underlying

a claim of persecution must be viewed in the aggregate. See,

e.g., Li, 400 F.3d at 169; Manzur, 494 F.3d at 290. Here, with

the arguable exception of the IUD insertion itself, there was an

express, undeniable link between each such event and Cheng’s

resistance to the population control regime. No reasonable

adjudicator could conclude that these events were

“unconnected” to Cheng’s acts of resistance, irrespective of

whether the act of inserting an IUD was a routine family

planning procedure. (App. at 5.) We conclude that these

expressly linked acts of abuse amount to past persecution with

a nexus to Cheng’s resistance, meaning that the Board’s

determination that Cheng failed to satisfy the nexus element of

her other resistance claim is not supported by substantial

evidence.

-45-

IV.

As we have explained, “the undisputed record evidence

compels the conclusion” that Cheng was persecuted on account

of her resistance to China’s coercive population control

policies.15 Ghebremedhin v. Ashcroft, 392 F.3d 241, 243 (7th

Cir. 2004). Although we find that the evidence unequivocally

demonstrates that Cheng satisfied the resistance, persecution,

and nexus prongs, the ultimate decision concerning Cheng’s

eligibility for asylum is the agency’s, not ours, to make. See

Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam)

(holding that “the law’s ordinary remand requirement” compels

remand to the agency to make the final decision as to asylum

eligibility); accord I.N.S. v. Orlando Ventura, 537 U.S. 12, 16

(2002) (per curiam); Ghebremedhin, 392 F.3d at 243

(concluding that “the power to grant asylum is vested solely in

the hands of the Attorney General, and . . . even if an alien is

otherwise eligible, the Attorney General is empowered by statute

to deny relief”) (citations omitted). We therefore grant Cheng’s

petition for review and remand to the BIA for further

proceedings consistent with this opinion.

15

Because we find that the Board’s decision on past

persecution is not supported by substantial evidence, we need

not address its conclusion regarding the likelihood of future

persecution or its dismissal of Cheng’s claims for withholding

of removal and CAT relief.

-46-

ROTH, Circuit Judge, concurring:

The majority concludes that resistance to a coercive

population control program includes resistance to China’s ban

on procreation by unmarried couples and resistance to the

insertion of an IUD. The majority has remanded this case to

the BIA for reconsideration of the credible evidence of past

persecution, including persecution for resistance to the

insertion of the IUD. I believe, however, that the “resistance”

language of the statute refers only to resistance to abortion or

sterilization. In my opinion, the remand should only consider

resistance to these latter two procedures. For that reason, I

write separately to address the BIA’s interpretation of the

phrase “other resistance to a coercive population control

program.” 8 U.S.C. § 1101(a)(42).

Because of the structure of section 1101(a)(42), with

the first two phrases of the sentence referring exclusively to

those individuals who have been forced to undergo abortion

or a sterilization procedure and to individuals who have been

persecuted for failure or refusal to undergo such a procedure,

I conclude that the third phrase, directed at resistance to a

“coercive population control program” refers to resistance

only to abortion or sterilization procedures, not to resistance

to any method of population control, including, in this

instance, IUD insertion. The courts that have examined this

issue do not agree with me, but I submit that they have

interpreted the statute in the manner that they did because the

petitioners before them had been forced to undergo the

insertion of an IUD and thus the briefing was skewed in that

direction without considering whether it was the correct

direction.

Contrary to the interpretations to date of section

1101(a)(42), I conclude that Congress intended the phrase

“other resistance” to be interpreted as referring to activities of

individuals who are resisting or opposing China’s population

control policy. Such activities and individuals might include,

for example, a doctor’s refusal to perform abortion or

sterilization procedures, a conscientious objector’s circulation

of material supporting the ban of abortion and sterilization

procedures, or an activist’s organization of public

demonstrations in opposition to forced abortion and

sterilization.

If the language of section 1101(a)(42) is interpreted as

encompassing all actions that “thwart the goals of the

[population control] plan and [are] viewed with disfavor by

Chinese officials implementing the plan . . .”, In re M-F-W-

& L-G-, 24 I. & N. Dec. 633 (BIA 2008), its scope is too

broad and goes beyond what I find to be Congress’s intent.

Without a narrower interpretation of this phrase, section

1101(a)(42) could be read to apply to any method of birth

control, including, among others, condoms or abstinence.

Such a broad interpretation would effectively “afford a safe

harbor to all those Chinese who chafe under [China’s

population control program].” Li v. Ashcroft, 356 F.3d 1153,

1170 (9th Cir. 2004) (Kleinfeld, J., dissenting). This cannot

be what Congress intended. As Judge Kleinfeld commented

in dissent:

[ P u rs u a n t to 8 U .S .C . §

1157(a)(5)], [t]here are only 1,000

asylum spots a year for those

seeking asylum under [8 U.S.C. §

1101(a)(42)], which arguably

extended its succor only to those

most brutalized by Chinese family

policy. By broadening the grant

to those who are most peripheral

to this class . . . we may well be

withdrawing American protection

from those at the heart of it,

persons subjected to forced

abortions and sterilizations. The

2

compassion felt by the majority

risks a cruel irony of denial of

compassion to those who need it

most.

Id. (footnote omitted). 1

For the reasons articulated above, I respectfully

concur.

1

The numerical limitation set forth in 8 U.S.C. § 1157(a)(5) was

repealed in 2005. See Pub.L. 109-13, Div. B, Title I, § 101(g)(2),

May 11, 2005, 119 Stat. 305. The President is now empowered to

set, on an annual basis, “the number of refugees who may be

admitted under [8 U.S.C. § 1157(a)] . . . .” For Fiscal Year 2010,

President Barack Obama determined that no more than 17,000

refugees from East Asia will be granted refugee status. See

Presidential Determination No. 2008-29, Sept. 30, 2008, 73 F.R.

52385. Although the allocation has changed since Judge Kleinfeld’s

dissent was issued, because a limit on the number of refugees that

may be granted asylum still exists, his reasoning supporting a narrow

construction of the phrase “other resistance to a coercive population

control program” remains persuasive.

3