Zhang, Junshao v. Gonzales, Alberto R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1706

JUNSHAO ZHANG,

Petitioner-Appellant,

v.

ALBERTO R. GONZALES, Attorney General

of the United States of America,

and DEPARTMENT OF HOMELAND SECURITY,1

Respondents-Appellees.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A73-488-569

____________

ARGUED APRIL 12, 2005—DECIDED JANUARY 19, 2006

____________

Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Junshao Zhang, a native of the

People’s Republic of China, arrived in the United States

at New York’s JFK airport in January 1995, at which

time he was placed in exclusion proceedings. The govern-

ment alleged that Zhang lacked a valid passport, visa or

1

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we

have substituted the current Attorney General of the United

States, Alberto R. Gonzales, for his predecessor as the named

respondent.

2 No. 04-1706

border-crossing card in violation of §§ 212(a)(7)(A)(i)(I),

(B)(i)(I), and (B)(i)(II) of the Immigration and Nationality

Act (INA), and that he presented a fraudulent passport

to seek to gain entry into the United States in violation

of INA § 212(a)(6)(C)(I). Zhang sought political asylum

and withholding of deportation to China.2

At the immigration hearing, Zhang admitted the allega-

tions regarding the lack of a non-immigrant visa, lack of an

immigrant visa, and lack of a travel document, but denied

the allegation of fraud under § 212(a)(6)(C)(i). The govern-

ment subsequently withdrew the fraud charge, which the

immigration judge (IJ) acknowledged at the hearing. The IJ

held that Zhang’s excludability was established by his

admissions as to the other charges, and turned to Zhang’s

request for asylum and withholding of deportation. After

hearing Zhang’s testimony, the IJ found that Zhang’s claim

was based principally on his opposition to the forced family

planning regulations in China, and his experience as a

victim of that policy in China. The IJ found that Zhang’s

testimony was credible, and made findings of fact based on

that credibility assessment. Specifically, the IJ found that:

Zhang is opposed to the Chinese birth control policy; Zhang

and his wife had a marriage ceremony at home, but never

officially registered the marriage because he was under the

age of 22 and she was under the age of 20, which are the

legal ages of marriage for males and females respectively in

China; in June of 1994, his wife was detained by Birth

Control Bureau personnel and was forced to have an

abortion because she was underage; and his wife was held

for 2 days, and Zhang was ordered to pay a fine.

2

Zhang later sought relief under the United Nations Conven-

tion Against Torture as well, but he did not challenge the denial of

that relief in the opening brief to this court and therefore it is not

before us.

No. 04-1706 3

Although crediting Zhang’s testimony and finding those

facts in his favor, the IJ nevertheless denied the re-

quested relief based on Matter of Chang, 20 I. & N. Dec. 38

(BIA 1989). In Chang, the Board held that implementation

of the one-child policy does not, by itself, create a well-

founded fear of persecution based on race, religion, nation-

ality, membership in a particular social group, or political

opinion. Accordingly, the IJ held that Zhang was statutorily

ineligible for a grant of asylum.

Congress subsequently enacted the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, Div. C, 110 Stat. 3009, 3009-546 (IIRIRA).

Section 601(a)(1) of the IIRIRA amended the definition of

refugee by providing:

(A) [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 popula-

tion 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 pers-

ecution on account of political opinion.

§ 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (Supp. II

1996). The impact of that amendment was to overrule

Chang, and allow for the granting of asylum applications in

cases in which the claim of persecution stemmed from the

enforcement of China’s coercive population control policies.

After the enactment of that amendment, the Board was

presented with requests by many asylum applicants to

reopen their cases. Many of those motions to reopen were

untimely because the change in law came after the time

for reopening had expired. See 8 C.F.R. § 3.2(c); In re

4 No. 04-1706

X.G.W., 22 I. & N. Dec. 71 (1998). The Board nevertheless

recognized the Congressional desire to provide relief to

individuals suffering persecution because of China’s

coercive population control policies. Accordingly, the

Board declared that it would exercise its “limited discretion-

ary powers under the regulations to reopen or reconsider

cases sua sponte in unique situations where it would serve

the interest of justice.” Id. at 73. Specifically, the Board

held that it would grant reopening of asylum claims based

on coercive family planning policies where the alien had

presented persuasive evidence of persecution based on

China’s “one-couple, one child” policy, and where asylum

had previously been denied based on Chang. X-G-W, 22 I. &

N. Dec. at 74. The Board in X-G-W granted reopening on

that basis, and granted the application for asylum. Id.

In 2002, the Board in In re G-C-L, 23 I. & N. Dec. 359

(2002), declared that its liberal reopening policies for such

untimely claims would end in 90 days, reasoning that those

with final orders of exclusion or deportation had been

provided a reasonable period of time in which to seek relief

during the five years in which untimely reopening was

allowed. The Board proceeded to consider the applicant’s

claim in G-C-L. The Board began by accepting

the Immigration Judge’s positive credibility finding. Id.

at 361. Given that credibility finding, the Board held that

the applicant had established that he suffered past persecu-

tion in China on account of political opinion, and was thus

presumed to have a well-founded fear of future persecution.

Id. Although that presumption could be rebutted by a

showing that there had been a fundamental change in

circumstances such that the applicant no longer had a well-

founded fear of persecution if returned to China, the INS

had not offered any such rebuttal evidence and therefore

the Board granted the application for asylum. Id.

Zhang moved to reopen his case within the window of

time in which the Board was allowing such reopening. The

No. 04-1706 5

Board determined that Zhang had established prima facie

eligibility for asylum based on the new definition of “refu-

gee” in the IIRIRA, and remanded the case to an IJ to

consider the claim under current law and for entry of a new

decision.

Rather than rely on the fact findings by the prior IJ, and

update the record as to any changes in circumstances in the

interim, the IJ conducted a new hearing at which he made

new fact findings contrary to those determined in that

initial hearing. First, the IJ questioned whether Zhang was

married at all, not because he found Zhang’s testimony

inherently incredible, but because Zhang presented no

corroborating evidence from his former spouse (Zhang

testified that after he left China, his wife moved to another

town and eventually remarried.) Even assuming that a

marriage ceremony took place, the IJ held that Zhang had

the burden to establish that the ceremony constituted a

marriage under Chinese law, and that he had failed to do

so.

The IJ also held that Zhang had failed to prove by

credible evidence that his wife had been subjected to a

forcible abortion. The IJ declared that there was reason to

doubt Zhang’s description of what happened to his wife

because there was no corroboration for it from others such

as his wife, nor any hospital record produced of the abor-

tion. Moreover, the IJ held that Zhang’s testimony was at

variance with the State Department Profile of Asylum

Claims and Country Conditions, and the Immigration and

Nationality Directorate of the U.K. Finally, the IJ noted

that the initial immigration judge had found Zhang’s

testimony credible and his demeanor appropriate in 1995,

but the IJ then reached the opposite conclusion at this

hearing. The IJ noted that Zhang gave answers quickly and

readily on direct examination, but was more hesitant and

claimed very often not to remember on cross-examination

and when questioned by the Court. As an example, the

6 No. 04-1706

Court noted his responses when questioned as to what he

told the immigration officers in 1995. The IJ questioned

Zhang at length concerning his use of a fraudulent passport

at entry, and did not believe Zhang’s answers. Accordingly,

the IJ held that Zhang intentionally misled the immigration

officer upon his arrival in the United States, claiming to be

a person he was not. The IJ concluded that Zhang was

subject to inadmissibility under § 212(a)(6).

The denial of asylum in this case, then, is based almost

entirely on the IJ’s adverse determination of issues that had

already been adjudicated in Zhang’s favor at the earlier

hearing. The IJ’s questioning at the hearing, and the

ultimate decision, dwelled at length on the fraud allegations

under § 212(a)(6), a charge the government had withdrawn

in the first proceeding. We have made clear that although

an IJ may find an applicant not credible when he uses false

documents to establish an asylum claim, “ ‘the use of false

documents to facilitate travel or gain entry does not serve

to impute a lack of credibility to the petitioner.’ ” Dong v.

Gonzales, 421 F.3d 573, 577 (7th Cir. 2005), quoting In re O-

D-, 21 I. & N. Dec. 1079, 1081 (BIA 1998). Accordingly, the

IJ improperly relied on the entry documents as a basis to

find Zhang incredible in his asylum claim.

Moreover, the IJ erred in even considering the withdrawn

fraud charge. Zhang would have had no reason to believe

that the fraud allegations would surface at all, given the

remand order that directed the judge to consider the claim

under the law as changed by the amendment superceding

Chang. That amendment has nothing to do with § 212(a)(6),

addressing only the impact of a forcible abortion or steril-

ization on a person’s asylum claim. Rather than apply the

new law to the fact findings, however, the IJ raised and

considered a legal issue expressly withdrawn years earlier,

and which the prior IJ recognized as a non-issue. We have

previously noted that “when a case is reassigned to a new

judge, ‘the successor judge should generally not reexamine

No. 04-1706 7

earlier rulings merely because he has a different view of the

law or facts than the original judge.’ ” Sun Hee Ko v.

Gonzales, 421 F.3d 453, 455 (7th Cir. 2005) (quoting the

Board of Immigration Appeals). Nothing in the remand

order implicated the earlier voluntary resolution of the

fraud issue, and the IJ erred in resurrecting it. “Litigants

have a right to expect that a change in judges will not mean

going back to square one.” Williams v. Commissioner of

Internal Revenue, 1 F.3d 502 (7th Cir. 1993); Ko, 421 F.3d

at 456. In this case, the transfer of the case to Chicago had

precisely that result, as the IJ based his ruling largely

on an issue unrelated to the remand order, which had

already been resolved by the prior IJ.

Those concerns apply to the IJ’s determination regard-

ing the marriage and the abortion as well. The initial IJ

held that Zhang testified credibly, and made explicit fact

findings that Zhang and his wife had been married and that

his wife was forced to undergo an abortion because they

were underage at the time of the marriage and pregnancy.

The government did not present any new evidence casting

doubt on those fact findings. In fact, the IJ reached the

opposite conclusion based entirely on the IJ’s own impres-

sions of credibility and the failure of Zhang to provide

corroborating evidence. Given the fact findings by the initial

IJ and the remand order indicating that the case was

remanded to consider it in light of the change in law,

however, there was no reason for Zhang to believe that

those factual issues would be determined anew, and that

corroboration would be required. Unlike issues such as a

change in circumstances that could impact whether he faced

a threat of future persecution, the validity of the marriage

and the forcible abortion were not issues that the passage

of time would have changed, absent new evidence or some

reason to believe that the earlier IJ had clearly erred. In

fact, in other cases in which motions to reopen were granted

in light of the amendment superceding Chang, the Board

8 No. 04-1706

decided the issue itself without any new hearing at all,

giving deference to the initial IJ’s fact findings. See G-C-L,

23 I. & N. at 361; X-G-W, 22 I. & N. at 73-4. The law of the

case doctrine cautions against such inconsistent rulings

based merely on the judges’ differing impressions of credi-

bility, absent exceptional circumstances such as a change in

the law, new evidence, or compelling circumstances. See

generally Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir.

1991); Ko, 421 F.3d at 455-56; Ramos v. Gonzales, 414 F.3d

800, 803 (7th Cir. 2005) and Pilch v. Ashcroft, 353 F.3d 585,

586-87 (7th Cir. 2003) (acknowledging law of the

case doctrine in immigration context). In fact, the ap-

plicability of the doctrine has been recognized in the

Operating Policies & Procedures Memoranda (OPPM) of the

Office of the Chief Immigration Judge, United States

Department of Justice Executive Office of Immigration

Review. OPPM 01-02. That OPPM declares that “the law of

the case doctrine is consistent with all existing immigration

laws and regulations,” and that it “shall apply” where there

has been a change in venue. Id. at 2. In such circumstances

“the receiving judge is not free to hear the case de novo and

ignore any orders prior to the venue change, unless excep-

tional circumstances . . . permit departure from this policy.”

Id. Those exceptional circumstances include a supervening

rule of law, compelling or unusual circumstances, new

evidence, or such clear error in the previous decision that

its result would be manifestly unjust. Id. None of those

exceptional circumstances are present here. The amend-

ment superceding Chang affected only the application of the

law to the earlier fact findings concerning the marriage and

the abortion, not the legal prerequisites for making those

fact findings. Moreover, there was no new evidence or other

compelling circumstances which accounted for the IJ’s

contrary determination. The IJ’s mere difference of opinion

regarding credibility is not enough to overcome law of the

case concerns, and the prior determinations should have

been given deference.

No. 04-1706 9

In any case, the reasons for the adverse credibility

determinations in this case are unsupportable, and there-

fore the IJ decision cannot stand on that basis alone. First,

the IJ determined that Zhang was not actually married

because he failed to provide corroborating evidence of the

marriage and because he failed to establish that the

marriage was valid under Chinese law. Under the REAL ID

Act of 2005, “no court shall reverse a determination made

by a trier of fact [in a removal case] with respect to the

availability of corroborating evidence . . . unless the court

finds . . . that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.”

8 U.S.C. § 1252(b)(4). We recently discussed the impact of

that provision:

All that this means is that an immigration judge’s

determination that if there was evidence to cor-

roborate the alien’s testimony the alien could and

should have presented it is entitled to reasonable

deference. The precondition to deference is that the

immigration judge explain (unless it is obvious) why

he thinks corroborating evidence, if it existed, would

have been available to the alien. [citations omitted] . . .

To be entitled to deference, a determination of availabil-

ity must rest on more than implausible asser-

tion backed up by no facts.

Hor v. Gonzales, 421 F.3d 497, 500-01 (7th Cir. 2005).

Accordingly, in Hor we rejected the IJ’s demand for corrobo-

ration of an alien’s tale of abuse in the form of affidavits by

co-workers, because the IJ gave no explanation for thinking

the co-workers would provide such affidavits in light of the

murderous nature of the group involved in the abuse. Id. at

501. Similarly, the Hor court rejected the IJ’s demand that

Hor provide copies of documents he had filed in court in

Algeria, noting that there was no reason to doubt that Hor

did not possess such copies and that we cannot presume

that such copies are as readily available in disordered

10 No. 04-1706

nations as in the United States. Id. Similarly, the IJ’s

determination that the affidavit from his former wife was

“available” to Zhang was based solely on unsubstantiated,

implausible assertions by the IJ without any record sup-

port. Zhang explained at the hearing that his wife was

angry at him for leaving China, and that she moved from

the area and had remarried. He testified that his sister had

contacted his wife’s family and they had told the Zhangs not

to contact them anymore. The IJ does not mention this

testimony in faulting Zhang for failing to provide a state-

ment of the marriage from his wife. Considering that his

wife had remarried and lived in a different town, it is not at

all surprising that she would not want to have contact with

him. The IJ should have at least addressed that testimony

in faulting Zhang for failing to obtain corroboration.

Despite the IJ’s misgivings concerning the marriage, the

IJ assumed that a ceremony took place but held that Zhang

had failed to establish that the ceremony constituted a

marriage under Chinese law. That is a Catch-22. Zhang’s

asylum claim is based on China’s enforcement of its popula-

tion control policy, part of which includes a minimum age

requirement for marriages, and a minimum age for having

children. The forcible abortion in this case occurred pre-

cisely because Zhang and his wife married and became

pregnant prior to those minimum ages. The marriage is not

legal in China because of the population control policy.

Congress passed § 601(a)(1) of the IIRIRA to ensure that

families who are victims of forced abortion and sterilization

under China’s population control policy would receive

asylum, yet the IJ denied the claim precisely because that

population control policy rendered the marriage illegal.

That would entirely subvert the Congressional amendment,

and deny asylum to anyone whose sterilization or abortion

was set in motion by a decision to marry and procreate prior

to the minimum age. Where a traditional marriage cere-

mony has taken place, but is not recognized by the Chinese

No. 04-1706 11

government because of the age restrictions in the popula-

tion control measures, that person nevertheless qualifies as

a spouse for purposes of asylum. Ma v. Ashcroft, 361 F.3d

553, 558-61 (9th Cir. 2004).

In addition to questioning the marriage, the IJ also

held that Zhang failed to establish by credible evidence that

his wife had suffered a forced abortion at the hands of the

government. The government, to its credit, does not attempt

to defend the IJ’s determination that Zhang failed to

establish that the forcible abortion occurred. Again, the IJ

relied on the lack of a statement from the wife or her

family, without addressing Zhang’s explanation for his

inability to obtain such corroboration. The IJ also relied on

the lack of any hospital record of the forced abortion. Yet

there is no support for the contention that such a hospital

record could be obtained. In fact, we have previously

addressed this very issue in Lin v. Ashcroft, 385 F.3d 748

(7th Cir. 2004). In Lin, we discussed the State Department’s

Profile of Asylum Claims and Country Conditions for China,

which reports that the U.S. Embassy and Consulates are

unaware of any so-called “abortion certificates.” According

to Embassy officials, the only document of that nature is

one provided only in cases of voluntary abortions, in which

certificates are provided to allow the patient to obtain time

off work. Id. at 753-54. The absence of a hospital certificate,

then, provides no reason to doubt Zhang’s testimony, and in

fact is entirely consistent with that testimony.

Similarly, the alleged contradictions between Zhang’s

testimony and official country reports are illusory. The

IJ relies on a State Department report, concluding that “the

State Department is saying that the consequences that a

child in Fujian [Province] who is born out-of-wedlock or be-

fore the parents were legally eligible to marry would not

be forcible abortion, but would rather be a fine or some

kind . . . .” IJ Order at 7. The State Department report,

however, directly states that it “could not exclude” the

12 No. 04-1706

possibility of forced abortions of children of couples with an

early marriage. Accordingly, the State Department report

does not contradict Zhang’s testimony, and the IJ improp-

erly characterized it as such. Moreover, we have repeatedly

cautioned that “an IJ should not rely on generalized Profiles

or Country Reports to refute an applicant’s personal experi-

ence.” Dong v. Gonzales, 421 F.3d 573, 578 (7th Cir. 2005);

Bace v. Ashcroft, 352 F.3d 1133, 1139 (7th Cir. 2003) (“[I]t

would be improper to find that a witness’s credibility about

specific events could be ‘contradicted’ by a generalized State

Department report broadly discussing conditions in the

applicant’s country of origin.”); see also Lin v. Ashcroft, 385

F.3d at 754. That is precisely how the Report was used

here. We rejected such a use of the State Department report

in a factually-similar case in Dong, and we reject it here.

The IJ repeated that error in his use of the report from

the Immigration and Nationality Directorate of the U.K.—

a report supplied by the IJ himself at the hearing. That

report indicated that Fujian Province was less strict in

its enforcement of the birth control policies than other

provinces except for Guangdong. The IJ concluded that

Zhang’s testimony was at variance with those authorities,

and therefore not credible. Again, however, a general ob-

servation concerning a province as a whole cannot be

the basis for wholesale disregard of specific testimony by an

individual. Moreover, the IJ failed to address in any way

the myriad authorities provided by Zhang reaching an

opposite conclusion. Included in those were the Chicago

Tribune reports and ABC Nightline reports of testimony of

Gao Xiao Duan, the official in charge of enforcing the

population control measures in a township in Zhang’s

province (Fujian Province) during a 14-year time period

which included the time of the forcible abortion in this case.

Gao defected to the United States, bringing with her video

and documentary evidence of the strict enforcement of the

population control measures, and testified before Congress

No. 04-1706 13

as to those population control measures. In the news

reports of her testimony, she described at length the

measures undertaken in her province to assure compliance

with the planned-birth policies, including the forcible

abortion of any pregnancies in which the woman lacked a

permit for the birth, even where the pregnancy was in the

ninth month. Gao noted that women younger than 20 are

not authorized to become pregnant and thus cannot obtain

that permit. See also Forced Abortion and Sterilization in

China—The View from Inside: Hearings Before the

Subcomm. on Int’l Operations and Human Rights of the

House Comm. on Int’l Relations, 105th Cong. 8-12 (1998)

(testimony of Ms. Gao Xiao Duan),

http://commdocs.house.gov/committees/intlrel/

hfa49740.000/hfa49740_0f.htm. In contrast, the general

statements from the Immigration and Nationality Director-

ate of the U.K. were in a 2002 report, at a time subsequent

to the abortion at issue here and also subsequent to the

aforementioned testimony and ensuing inter-

national attention on Fujian Province. See also Ma v.

Ashcroft, 361 F.3d 553 (9th Cir. 2004) (discussing simi-

lar third trimester forced abortion in underage marriage,

and citing numerous sources that the policy against early

marriages and births is strictly enforced in Fujian Prov-

ince).

In an attempt to salvage the decision, the government

presents alternative grounds for denying asylum in this

case. The government argues that even if Zhang suffered

past persecution under § 1101(a)(42)(B) to qualify for

refugee status, he cannot establish a well-founded fear

of future persecution if he returned to China. The IJ did not

consider whether Zhang had demonstrated a well-founded

fear of future persecution, so ordinarily this would be a

matter that we would remand. The government argues,

however, that we may decide that issue adversely to Zhang

as a matter of law.

14 No. 04-1706

In In re C-Y-Z, 21 I. & N. Dec. 915, 917 (1997), the BIA

held that the spouse of a woman who has been forced to

undergo an abortion or sterilization procedure can establish

past persecution. Furthermore, the spouse, having demon-

strated past persecution, is entitled to a presumption of

future persecution. 8 C.F.R. § 208.13(b)(1) (an applicant

who has established past persecution “shall also be pre-

sumed to have a well-founded fear of persecution on the

basis of the original claim.”) Because Zhang’s wife has

remarried, the government argues that he can no longer

“bootstrap” onto her claim, and can no longer claim the

benefit of the rule that a husband may vicariously assert

the injury to his wife. This contention is without merit. At

its heart, the government’s claim rests on the notion that

Zhang suffers no persecution, independent of his wife, as

the result of the forcible abortion of his child. Although his

wife was certainly a very direct victim of China’s population

control measures, Zhang was a victim as well. The forcible

abortion has deprived him of his unborn child, of the ability

to realize the family that his wife and he had desired, and

forever deprived him of the ability to become a parent to

that unborn son or daughter with his wife. That loss is

certainly not lessened by the subsequent break-up of the

marriage, because that simply means he may have been

deprived of his only chance to parent a child with that

former spouse. Given the stress on a relationship that an

involuntary abortion or sterilization would produce, it

would be particularly perverse for courts to treat a subse-

quent break-up of the marriage as somehow lessening the

impact of that persecution. An argument analogous to the

government’s theory has been rejected by the BIA and the

courts. Qu v. Gonzales, 399 F.3d 1195 (9th Cir. 200); In re

Y-T-L, 23 I. & N. Dec. 601 (2003). The government in those

cases argued that a spouse whose wife had been involun-

tarily sterilized had no fear of future persecution because

her involuntary sterilization removed any threat of future

sterilization or forcible abortions. That convoluted argu-

No. 04-1706 15

ment was properly rejected because it would allow the act

of persecution itself to constitute the change in circum-

stances that would result in the denial of asylum, and

would categorically deny asylum to a class of persons that

Congress clearly intended to protect. 399 F.3d at 1203; 23

I. & N. Dec. at 605. In rejecting such a claim, the court

and the BIA focused on the special nature of the persecu-

tion and the need to give full force to the intent of Congress.

The BIA emphasized that the act of forced sterilization is

not a discrete act, but rather a permanent and continuous

form of persecution that deprives the couple of the child or

children who might have eventually been born to them. 399

F.3d at 1202; 23 I. & N. Dec. at 607. The BIA held that

persons who have suffered involuntary sterilization have a

well-founded fear of future persecution because they will be

persecuted for the remainder of their lives due to that

sterilization. 399 F.3d at 1203; 23 I. & N. Dec. at 607. The

Qu court noted a similar impact for forced abortions:

Forced abortion, as a form of persecution, possesses

similar unusual characteristics. Again, the pain,

psychological trauma, and shame are combined with the

irremediable and ongoing suffering of being perma-

nently denied the existence of a son or daughter. Thus,

forced abortions, without more, also likely will result in

statutory entitlement to asylum eligibility and with-

holding of removal. In fact, an even stronger argument

may exist that the presumption is necessarily rebutted

in involuntary abortion cases, because the applicant

may still face additional persecution in the future in the

form of more forced abortions, involuntary sterilization,

and other coercive population control practices.

399 F.3d at 1202 n.8.

That logic applies equally to Zhang. In addition to be-

ing permanently denied the existence of that son or daugh-

ter with his wife, he remains subject to the same population

control measures. That his wife has remarried does nothing

16 No. 04-1706

to eliminate that risk. There is nothing in this record to

indicate that Zhang has no desire to marry and have

children, or that he now agrees with China’s population

control measures. He is still subject to all of China’s

population control measures, including the ban on underage

marriages and early births, which are still problematic if he

marries a woman under that age limit. In fact, if his

marriage had remained intact, the government would

undoubtedly be arguing that there was no threat of future

persecution because they would no longer be under the legal

age to have children under those population control mea-

sures. This twisted logic has already been rejected by the

BIA and the courts. The government has failed to identify

any changes that are “fundamental in nature and go to the

basis of the fear of persecution.” 23 I. & N. Dec. at 605. The

mere speculation that Zhang may not run afoul of those

population control measures given the break-up of his

marriage is insufficient to rebut the presumption of future

persecution. The government raises no other argument that

Zhang lacks a well-founded fear of future persecution, nor

does it suggest that it would raise any other argument if the

matter were remanded. Because we reject the government’s

sole argument that he lacks a well-founded fear of future

persecution because of the break-up of his marriage, the

government has failed to demonstrate a well-founded fear

of future persecution as a matter of law. Finally, the IJ’s

alternative determination that Zhang would not merit a

favorable exercise of discretion even if he were found

eligible for asylum, is based on the same erroneous credibil-

ity determinations and the improper consideration of the

fraud charge withdrawn years earlier. Accordingly, we

grant the petition for review, vacate the BIA’s denial of

withholding of removal and asylum, grant withholding of

removal, hold Zhang eligible for asylum, and remand to the

Attorney General to exercise his discretion whether to grant

asylum.

No. 04-1706 17

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-19-06