Lin v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LI BIN LIN, 

Petitioner, No. 05-74130

v.

 Agency No.

A76-868-356

ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 16, 2006—Honolulu, Hawaii

Filed January 9, 2007

Before: Stephen S. Trott, Kim McLane Wardlaw, and

William A. Fletcher, Circuit Judges.

Opinion by Judge Trott

145

148 LIN v. GONZALES

COUNSEL

Jisheng Li, Honolulu, Hawaii, for the petitioner.

Louis A. Bracco, Assistant United States Attorney, Honolulu,

Hawaii, for the respondent.

OPINION

TROTT, Circuit Judge:

Li Bin Lin (“Lin”), a citizen of the People’s Republic of

China, seeks judicial review of a Board of Immigration

Appeals’ (“BIA”) denial of his application for asylum, an

application based upon his alleged persecution for resisting a

coercive population control program. The BIA affirmed the

Immigration Judge’s (“IJ”) decision and concluded that Lin

was not eligible for asylum because he did not demonstrate,

as required by the statute, “other resistance” to a coercive

population control program. We disagree. Lin was beaten and

threatened with arrest for attempting to prevent birth control

officials from confiscating and destroying family property.

We hold that Lin’s actions satisfy the “other resistance” cate-

gory set forth in 8 U.S.C. § 1101(a)(42)(B). Thus, we reverse

the BIA’s decision, and remand to the BIA to determine

whether, in light of this opinion, Lin suffered past persecution

or has a well-founded fear of future persecution in connection

with his resistance.

I

BACKGROUND

Lin lived in the Fujian province of China, in the same

house as his parents, sister, two brothers, sister-in-law, and

two nieces. Because Lin’s brother already had two daughters

LIN v. GONZALES 149

and his wife was pregnant with their third child, birth control

officials notified Lin’s brother that he was required to be ster-

ilized. Lin’s brother, unwilling to be sterilized, “ran away”

several days before the scheduled vasectomy procedure. In

response, birth control officials went to Lin’s house in March

1998 to seize and destroy household furnishings. When Lin

attempted to stop the birth control officials from taking family

property, they beat him up and called security to arrest him.

In his declaration, Lin asserted: “I detest [the birth control

officials’] action and tried to stop them, but they beat me up.

I had no other alternative and I couldn’t stand [it] any more,

so I resisted them.” After the incident, Lin immediately went

into hiding to avoid arrest. In May 1998, Lin fled to Guam.

On July 17, 2001, Lin received a Notice to Appear charging

him with removal pursuant to § 212(a)(6)(A)(I) of the Immi-

gration and Nationality Act. 8 U.S.C. § 1182(a)(6)(A)(I). Lin

conceded removability, but requested relief in the form of

asylum and withholding of removal. Lin claimed he would be

persecuted for resisting officials and fleeing arrest if he

returned to China. To support this claim, Lin filed several

supplemental documents with the IJ, including a summons

from the Public Security Bureau in China ordering him to

report to the Tan Tou Border Defense Office on April 2,

1998, a certificate verifying that his brother underwent the

sterilization procedure on March 18, 1998, and a declaration

from his father corroborating Lin’s claims.

The IJ denied Lin’s application for asylum and withholding

of removal, finding Lin’s testimony not credible and lacking

corroboration. The BIA reversed the IJ’s negative credibility

finding, but dismissed Lin’s appeal for failure to submit cor-

roborating evidence in support of his claim. Lin subsequently

filed a motion to reopen. On March 23, 2004, the BIA denied

Lin’s motion. However, in September 2004, we remanded the

case to the BIA to reconsider its decision in light of Ninth Cir-

cuit precedent that eliminated the corroboration requirement

when an alien’s testimony is found credible. See, e.g., Ladha

150 LIN v. GONZALES

v. INS, 215 F.3d 889, 900 (9th Cir. 2000) (“[W]hen an alien

credibly testifies to certain facts, those facts are deemed true,

and the question remaining to be answered becomes whether

these facts, and their reasonable inferences, satisfy the ele-

ments of the claim for relief. No further corroboration is

required.”).

On June 15, 2005, the BIA acknowledged that it had previ-

ously erred in requiring Lin to submit corroborating evidence.

However, the BIA affirmed its denial of Lin’s asylum and

withholding of removal claims on the ground that Lin had not

met his burden of proof to establish eligibility for asylum.

According to the BIA, Lin failed to demonstrate that his

actions constituted “other resistance” to a coercive population

control program. The BIA stated also that Lin had “not shown

that the officials’ threat to arrest him after he was involved in

an altercation with one of the officials was on account of an

anti-government opinion being imputed to him, rather than as

a result of his having confronted the birth control officials,

who were attempting to do their job.” Lin timely appealed the

BIA’s decision.

II

STANDARD OF REVIEW

“Where . . . the BIA reviews the IJ’s decision de novo, our

review is limited to the BIA’s decision, except to the extent

that the IJ’s opinion is expressly adopted.” Shah v. INS, 220

F.3d 1062, 1067 (9th Cir. 2000) (internal quotation marks

omitted). In the present case, the BIA reviewed the IJ’s deci-

sion de novo; thus, we review the BIA’s decision. “Interpreta-

tion of immigration statutes is a question of law that we

review de novo, but with deference to the agency’s interpreta-

tion.” Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th

Cir. 2005) (citation omitted). We review for substantial evi-

dence the decision that an applicant has not established eligi-

bility for asylum. See Njuguna v. Ashcroft, 374 F.3d 765, 769

LIN v. GONZALES 151

(9th Cir. 2004). We must uphold the BIA’s asylum determina-

tion if it is “supported by reasonable, substantial, and proba-

tive evidence on the record considered as a whole.” See

Knezevic v. Ashcroft, 367 F.3d 1206, 1210-11 (9th Cir. 2004)

(internal quotation marks omitted); see also INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To reverse [a] BIA

finding [a court] must find that the evidence not only supports

that conclusion, but compels it . . . .”).

III

DISCUSSION

[1] The Attorney General may grant asylum to any appli-

cant who qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1)(A).

A refugee is defined as one who is unable or unwilling to

return to his or her home country “because of persecution or

a well-founded fear of persecution on account of race, reli-

gion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A). In 1996, Con-

gress added the following language to the refugee definition:

[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 coer-

cive population control program, shall be deemed to

have been persecuted on account of political opin-

ion, 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.

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, 110 Stat.

3009, 3009-689 (codified as amended at 8 U.S.C.

§ 1101(a)(42)(B)) (emphasis added). The plain language of

152 LIN v. GONZALES

the amendment establishes eligibility for asylum under two

categories relevant to this case. First, it provides that appli-

cants who are forced to undergo sterilization are automatically

“persecuted on account of a political opinion.” 8 U.S.C.

§ 1101(a)(42)(B); see also Zhang v. Gonzales, 408 F.3d 1239,

1244 (9th Cir. 2005) (“Under 8 U.S.C. § 1101(a)(42)(B), an

individual who has been forcibly sterilized is automatically

deemed eligible for asylum.”). Second, the amendment pro-

vides that an applicant is deemed “persecuted on account of

political opinion” if he (1) suffers persecution (2) as the result

of other resistance to a coercive population control program.

8 U.S.C. § 1101(a)(42)(B); see also Li v. Ashcroft, 356 F.3d

1153, 1158-60 (9th Cir. 2004) (en banc) (providing that an

applicant qualifies for asylum under § 1101(a)(42)(B) if the

applicant demonstrates persecution “on account of” resistance

to a coercive population control program).

At issue here is the second category of asylum eligibility:

the category that allows asylum based on an applicant’s

“other resistance” to a coercive population control program.

In Li, we addressed the meaning of “other resistance” in the

statute. 356 F.3d at 1158-60. There, the petitioner publicly

announced her opposition to China’s coercive population con-

trol policies. Id. at 1156. As a result, she was forced to endure

a physically invasive and emotionally traumatic gynecological

exam. Id. at 1158 n.4, 1160. The petitioner was also threat-

ened with future exams, abortion, sterilization of her boy-

friend, and arrest. Id. at 1158-59. We performed a two-step

analysis of the petitioner’s claim. First, we indicated that the

forced gynecological examination and subsequent threats con-

stituted persecution. Id. at 1158. Second, we determined that

the petitioner resisted a population control program, both

vocally and physically. Id. at 1160. She vocally resisted by

publicly announcing her opposition to the program, and she

physically resisted by struggling during the forced examina-

tion. Id. We further reasoned that “but for” her resistance to

China’s population control policies, she would not have been

forcibly examined. Id. Accordingly, we concluded that

LIN v. GONZALES 153

because the physical exam and subsequent threats constituted

persecution, and because petitioner vocally and physically

resisted a coercive population control program, the petitioner

had been “persecuted on account of a political opinion” pur-

suant to § 1101(a)(42)(B). Id. at 1160-61.

A. “Other Resistance To A Coercive Population

Program”

[2] Lin argues that he was “persecuted on account of his

political opinion” because he resisted the coercive population

control policies of the Chinese government. In order to fit

within the category of “other resistance to a coercive popula-

tion program,” an applicant must show that (1) the govern-

ment was enforcing a coercive population program at the time

of the pertinent events, and (2) the applicant resisted the pro-

gram. 8 U.S.C. § 1101(a)(42)(B).

Coercive population control programs often vary depending

on the country, city, or even local community. In Li, the popu-

lation control program consisted of two parts. 356 F.3d at

1159-60. First, it set a minimum marriage age for men and

women. Id. Second, it limited family size to one child per

married couple. Id. We held that the government’s program

limiting family size, by itself, satisfied the “coercive popula-

tion control program” prong in § 1101(a)(42)(B). Li, 356 F.3d

at 1160 n.5.

[3] This case clearly involves a coercive population control

program. Birth control officials informed Lin’s brother that he

had to be sterilized. Then, the officials attempted to destroy

his property when he failed to show up for the procedure.

Ultimately, Lin’s brother was sterilized to limit the size of his

family. Lin established this sequence of events through credi-

ble testimony, and the submission of several supplemental

documents. Evaluated together, the evidence compellingly

demonstrates that Chinese birth control officials were actively

154 LIN v. GONZALES

enforcing a coercive population control program in Fujian at

the time of the incident.

[4] Lin’s petition turns on whether he met the second

requirement — “other resistance” to the coercive population

control program. Congress did not define the term “resis-

tance” in § 1101(a)(42)(B). The ordinary meaning of the word

“resistance” includes “passive or active opposition.” WEB-

STER’S NEW INTERNATIONAL DICTIONARY 1932 (3d

ed. 1993). In Li, we indicated that an applicant can resist, as

the term is used in § 1101(a)(42)(B), either vocally or physi-

cally. 356 F.3d at 1160. There, we held that the petitioner

vocally resisted the one-child policy when she told a local

population control official that she planned “to have many

babies” because she did “not believe in the policy.” Id. In

addition, we found that the petitioner physically resisted by

kicking and struggling when the officials forced her to

undergo a gynecological exam. Id.

Here, the BIA concluded that Lin’s actions did not consti-

tute resistance to a coercive population control program. In

doing so, the BIA suggested that an applicant does not satisfy

the resistance component unless the applicant can demon-

strate that the resistance was motivated by a disapproval of

birth control policies. In response, Lin argues that the term

“resistance” in § 1101(a)(42)(B) stands on its own, and does

not require examination of potential motivations, as long as

Lin demonstrated opposition to the population control pro-

gram. As such, Lin argues that he satisfied the resistance

prong simply by physically interfering with birth control offi-

cials while the officials destroyed family property in accor-

dance with birth control policies.

[5] Lin’s argument is persuasive. The plain language of

§ 1101(a)(42)(B) does not require Lin to resist birth control

officials because he disapproves of the birth control program.

Thus, Lin’s subjective reasons for resisting need not be

reviewed here. Rather, the sole question is whether the appli-

cant claiming “resistance” physically or vocally resisted birth

control officials while the officials performed duties related to

LIN v. GONZALES 155

the birth control program. We hold that Lin’s physical alterca-

tion with the birth control officials while the officials

attempted to use coercive measures to enforce birth quotas

constitutes physical resistance, and thus, satisfies the “resis-

tance” prong of § 1101(a)(42)(B). This holding comports with

the plain language of § 1101(a)(42)(B), the ordinary meaning

of the term resistance, and our previous interpretation of the

term in Li.

B. Persecution

[6] Even though Lin resisted a coercive population control

program, and thus satisfies the “on account of political opin-

ion” component of § 1101(a)(42)(B), this finding does not

automatically establish persecution. Instead, in accordance

with Li’s two-step analysis, Lin must also demonstrate past

persecution or a well-founded fear of future persecution. See

Li 356 F.3d at 1158-61 (requiring the petitioner demonstrate

both persecution and resistance to a coercive population con-

trol program to be eligible for asylum). Therefore, in accor-

dance with INS v. Ventura, we remand to the BIA to

determine whether, in light of this opinion, Lin suffered past

persecution or has a well-founded fear of future persecution

in connection with his resistance. 537 U.S. 12, 17-18 (2002).

CONCLUSION

For the reasons outlined above, we reverse the BIA’s deci-

sion, and remand the case for further proceedings consistent

with this opinion.1

REMANDED.

1

Lin claimed also that the BIA violated his due process rights by deny-

ing his asylum application on a ground not previously discussed by the IJ,

i.e., failure to show “other resistance.” This claim is without merit. In its

decision, the IJ discussed the asylum requirements, and gave Lin clear

notice that he failed to meet his burden of proof on the asylum claim.

Thus, this case is distinguishable from Campos-Sanchez v. INS, 164 F.3d

448 (9th Cir. 1999).