Lishou Wang v. Loretta E. Lynch

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-1261

LISHOU WANG,

Petitioner,

v.

LORETTA E. LYNCH,

Attorney General of the United States,

Respondent.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A088-577-598

____________________

ARGUED AUGUST 4, 2015 — DECIDED OCTOBER 26, 2015

____________________

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge. Lishou Wang, a 51-year-old Chi-

nese citizen, petitions for review of the denial of his applica-

tions for asylum and withholding of removal based on his

resistance to China’s coercive population-control policy. An

immigration judge found that Wang did not testify credibly

about the crux of his claim, which involves a beating he suf-

fered while struggling to prevent his wife from being forced

2 No. 15-1261

to receive what he believed to be a sterilization procedure.

But the IJ misunderstood Wang’s testimony about the nature

of the procedure his wife ultimately received—the implanta-

tion into her arm of a contraceptive device. Further the IJ

erred by concluding, alternatively, that Wang could not

show past persecution because he resisted only his wife’s

forced contraceptive implant as opposed to a forced abortion

or sterilization. We grant the petition and remand for further

proceedings.

I. BACKGROUND

We recount the facts primarily from Wang’s testimony

during his final removal hearing. In China Wang worked as

a farmer in a village in the eastern province of Shandong. He

married in 1988, and the following year his wife gave birth

to a daughter. Three months later government officials re-

quired his wife to have an intrauterine device (“IUD”) im-

planted. But five years later the IUD “fell off,” and she again

got pregnant. Under government policy, though, too little

time had passed since having their first child, so officials

forced her to abort the pregnancy. (Wang does not rely on

this abortion for his asylum claim.) By 2000, Wang and his

wife were able to have another child, a son.

The events at the heart of these proceedings occurred

three months after their son’s birth, when government offi-

cials went to their house and threatened to sterilize either

Wang or his wife. Wang protested and fought against the

officials, who pushed him to the floor, kicked him, and beat

him with batons until he passed out from “severe, excruciat-

ing pain” in his leg. At some point he heard a neighbor tell-

ing the officials to stop before they killed him. Wang was

taken to a hospital, where he learned that his foot was bro-

No. 15-1261 3

ken. In the meantime officials had returned to his house and

forced his wife to undergo a procedure in which a contracep-

tive called “Norplant” was surgically inserted into her arm. 1

(This procedure engendered considerable confusion at the

hearing, as Wang first labeled it “tubal ligation” before clari-

fying that he meant the “birth control implant on my wife’s

upper arm” or “skin implant.”) His wife became ill from the

implant, and the couple had no further children.

Nine years later Wang entered the United States on a

three-month business visitor’s visa that he had procured

from a snakehead. More than a year after his entry, he ap-

plied for asylum and withholding of removal, contending

that he had been persecuted for resisting the government of-

ficials’ demands to sterilize him or his wife. The Department

of Homeland Security referred his application to an IJ and

charged him with removability for overstaying his visa,

see 8 U.S.C. § 1227(a)(1)(B). Wang conceded the charge and

renewed his requests for relief. 2

Wang supported his testimony with documents about

the ordeal. He included an affidavit in which he described

1 According to an uncredited pamphlet in the record entitled

“Facts About Norplant,” Norplant is the brand name of a contraceptive

consisting of 6 small capsules that are implanted under the skin of a

woman’s upper arm and is 99% effective at preventing pregnancy for up

to 5 years. The pamphlet warns that possible side effects of the drug in-

clude weight gain, headaches, heavy vaginal bleeding, missed periods,

stomach pain, chest pain, leg pain, trouble breathing, and pus or bleed-

ing at the insertion area.

2 The IJ excused Wang’s failure to meet the one-year deadline for

filing his asylum application, see 8 U.S.C. § 1158(a)(2)(B), (D), and the

government has never challenged that determination.

4 No. 15-1261

how family-planning officials beat him, broke his foot, and

then sterilized his wife while he was in the hospital. He also

submitted medical records noting that he had suffered a

“bone fracture” and that his wife had undergone “surgery

by Norplant device implantation.” Finally he added letters

from his wife and mother-in-law describing the procedure as

“[s]ubcutaneous ligation.”

The IJ denied all relief. The IJ credited Wang’s testimony

about his background, his family, and the circumstances of

his departure from China, and acknowledged that Wang

“could qualify for asylum based on past persecution if he

showed that he resisted a coercive population program.” But

the IJ did not credit Wang’s testimony about the incident

with family-planning officials. Instead, the IJ found “clear

inconsistency” in Wang’s alternative characterizations of his

wife’s procedure as both a forced tubal ligation and a forced

implantation of a birth-control device. These two procedures

were so “markedly different,” explained the IJ, that there

was “no reason to think” they “could be confused in any

way.” And even if Wang were telling the truth about his

wife forcibly receiving a contraceptive, the IJ continued in

the alternative, he could not establish past persecution be-

cause he had resisted only an implant, not a forced abortion

or sterilization. Finally, the IJ added, Wang did not present

sufficient corroboration to clarify his inconsistent testimony.

The Board upheld the IJ’s decision, finding the adverse

credibility determination not clearly erroneous. It explained

that the IJ was not required to accept Wang’s explanation for

confusing tubal ligation with a Norplant implantation, espe-

cially since the two procedures were “vastly different.”

Without credible testimony, the Board concluded, Wang’s

No. 15-1261 5

documentary evidence was insufficient to meet his burden

of proof for asylum or withholding of removal. The Board

declined to address the IJ’s alternative conclusion that Wang

could not qualify for asylum because he had not resisted a

forced abortion or sterilization.

II. ANALYSIS

Because the Board affirmed the decision of the IJ and

added its own reasoning, we review both decisions, see Khan

v. Holder, 766 F.3d 689, 695 (7th Cir. 2014); Georgieva v. Holder,

751 F.3d 514, 519 (7th Cir. 2014), bearing in mind that factual

and credibility determinations must be supported by sub-

stantial evidence, see Tawuo v. Lynch, 799 F.3d 725, 727

(7th Cir. 2015); Liu v. Lynch, 788 F.3d 737, 741 (7th Cir. 2015),

while legal conclusions are reviewed de novo, see Antia-Perea

v. Holder, 768 F.3d 647, 658–59 (7th Cir. 2014).

A. Credibility

Wang persuasively argues that the IJ’s credibility finding

is flawed because the IJ mistook Wang’s innocent confusion

over the name of his wife’s medical procedure for a conclu-

sion that it never occurred. The IJ improperly discredited

Wang’s testimony by relying solely on his mistaken labeling

of the procedure as “tubal ligation” even though he consist-

ently described it as involving a “skin implant” and “birth

control implant on my wife’s upper arm.” 3 Throughout his

testimony Wang explained that he understood the conse-

3 This confusion apparently was exacerbated by interpretation

glitches. For example, Wang first testified (through an interpreter) that

the family-planning officials had tried to force his wife to have a “vasec-

tomy.” When the IJ pressed Wang to clarify, the interpreter interjected

and acknowledged that she had erred and meant to say “tubal ligation.”

6 No. 15-1261

quence of his wife’s procedure—whether labeled a “tubal

ligation” or a Norplant implantation—to be her inability to

conceive another child. Wang emphasized that he thought of

Norplant as the same as a “sterilization procedure” or “tubal

ligation” because “in China, without certain identification,

you cannot remove this implant from your body.” Although

tubal ligation is in fact different from a contraceptive im-

plant, Wang said nothing at the hearing to suggest that he

grasped the difference between the two procedures. Conse-

quently the IJ lacked substantial evidence to use Wang’s

misunderstanding of the term “tubal ligation” to discredit

his uncontradicted testimony that family-planning officials

implanted a contraceptive device into his wife’s arm.

B. Past Persecution

Next Wang challenges the IJ’s alternative conclusion—

which the Board did not disturb—that even if he credibly

had testified about his wife’s forced Norplant implantation,

he could not demonstrate past persecution as described in

8 U.S.C. § 1101(a)(42) because he did not resist a forced abor-

tion or sterilization. The IJ misconstrued this statute.

Under § 1101(a)(42), if Wang’s wife were forcibly steri-

lized or forced to have an abortion, she could establish per se

persecution on account of political opinion. See Chen v. Hold-

er, 604 F.3d 324, 331 (7th Cir. 2010). And in that case Wang

could seek relief for himself if he had been harmed for resist-

ing her sterilization or abortion. See id.; Jin v. Holder, 572 F.3d

392, 397 (7th Cir. 2009). But Wang also may seek relief if he

suffered persecution for engaging in “other resistance to a

coercive population control program,” 8 U.S.C. § 1101(a)(42).

Under this provision, the precise procedure that Wang’s

wife underwent as part of that program is beside the point.

No. 15-1261 7

China’s “coercive population control program” is not limited

to only forced abortions and sterilizations; it also forces cou-

ples to use birth-control measures such as condoms, pills,

and IUDs. See Population and Family Planning Law (P.R.C.)

(promulgated by the Standing Comm. Nat’l People’s Cong.,

Dec. 29, 2001, effective Sept. 1, 2000), reprinted in U.S. Dep’t

of State, 2007 China Profile of Asylum Claims & Country

Conditions; see also Chen v. Holder, 737 F.3d 1084, 1089

(7th Cir. 2013). Wang’s claim that he was punished for op-

posing the efforts of family-planning officials to enforce the

population-control program, either by sterilizing him or his

wife or by implanting a contraceptive device into his wife’s

arm, thus falls within the protection of the statute.

On remand the Board must assess two matters in the first

instance. See Kone v. Holder, 620 F.3d 760, 763–64 (7th Cir.

2010). First it must decide whether Wang’s attempted inter-

ference with the family-planning officials, when they came

to his house threatening to implement population-control

measures, qualifies as “other resistance.” See, e.g., Cheng v.

Att’y Gen. of U.S., 623 F.3d 175, 190 (3d Cir. 2010) (“other re-

sistance” includes refusing to comply with demands to abort

pregnancy, fleeing town to escape family-planning officials,

defying orders to undergo sterilization, frustrating officials’

attempts to have IUD inserted, and missing multiple gyneco-

logical appointments); Matter of M-F-W- & L-G-,

24 I. & N. Dec. 633, 638 (B.I.A. 2008) (resistance “must be as-

sessed against the failures or refusals to comply with official

demands to adhere to birth planning policies” and includes

acts such as “removing an IUD or failing to attend a manda-

tory gynecological appointment”); cf. He v. Holder, 749 F.3d

792, 796 (9th Cir. 2014) (marrying underage, having children

earlier than allowed, and paying partial fine for violating

8 No. 15-1261

policy do not constitute the “overt” and “persistent defi-

ance” required to qualify as “other resistance”). Second it

must determine whether the harm Wang alleges to have suf-

fered—a beating that led to hospitalization and a broken

foot—amounts to persecution. See, e.g., Chen v. Holder,

705 F.3d 624, 629 (7th Cir. 2013) (persecution encompasses

harm such as beatings, detention, arrest, interrogation, and

imprisonment).

III. CONCLUSION

We GRANT the petition for review and REMAND this

case to the Board for further proceedings.