Xu Ming Li Xin Kui Yu v. John Ashcroft, Attorney General

PAEZ, Circuit Judge,

concurring in part and dissenting in part.

As noted by the majority, we are the first circuit to consider the meaning of the clause “other resistance to a coercive population control program” in section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”), 8 U.S.C. § 1101 (a)(42). Because Petitioner Xu Ming Li (“Li”) resisted when Chinese officials forcibly examined her “private parts” to determine whether she was pregnant and threatened her with forced abortion and sterilization, I am compelled to conclude that she qualifies for asylum under section 601, and therefore respectfully dissent from the majority’s opinion as it relates to Li. I concur however with the majority’s conclusion regarding Xin Kui Yu (“Yu”), but for different reasons.

I: Li’s Petition

A. Asylum,

To be eligible for asylum under section 601, an applicant who has not been forced to abort a pregnancy or to undergo involuntary sterilization, but who has resisted a coercive population control program, must establish ■ persecution or a well-founded fear of persecution on account of such resistance. Once established, however, such persecution is deemed to be on account of political opinion. As the majority points out, Li must therefore show she (1) was persecuted (2) on account of (3) her resistance (4) to a coercive population control program.

1. Past Persecution

Li was clearly a victim of past persecution. We have defined persecution as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995). Li was taken by force to the family planning clinic in her village by local family planning officials. The officials hauled *1105 her into an examination room, forced her to lie down on a bench, and two men held her down by the arms. Li kicked, she yelled in fear, and she cried out for help. Despite her resistance, she was forcibly subjected to an examination to detect whether she was pregnant. She was never asked to give a urine sample, but instead was forced to accept an invasive, physical examination of her “private parts.” When she protested, one of the family planning officials responded by pressing on her leg and threatening her with future physically-invasive examinations and forced sterilization.

The majority relies on Prasad in concluding that although a reasonable fact finder could have determined that Li was persecuted, the record did not compel that conclusion. Although acknowledging that there are “significant differences” between the incidents in Prasad and Li’s experience, the majority suggests that Li’s ordeal was less compelling, stating that “Li’s pregnancy examination ... is hardly comparable to Prasad being hit and kicked.” To the extent this statement can be taken to mean that Prasad’s experience of being hit in the stomach and kicked from behind one time was more severe than Li’s experience, I can only assume that the basis for this conclusion is the majority’s characterization of what Li was subjected to at the hands of the local officials as a routine “pregnancy examination” and no more. I simply cannot agree with this characterization of Li’s ordeal.

The majority’s description of what happened, calling Li’s experience a “pregnancy examination,” disregards the amount of force to which Li was subjected. Two men pinned Li down on a bench. She screamed to be released as the doctor physically examined her “private parts” to determine if she was pregnant. In this context, what the majority calls a “pregnancy examination” involved forced submission to a physically invasive procedure. This forced submission clearly establishes harm beyond anything one would expect from a routine “pregnancy examination.”

The majority next attempts to compare the length of time for which each was detained, noting that Prasad was “detained for between four and six hours while Li was detained for only half-an-hour.” The problem with this approach is that the length of time that one is detained is not a determinative basis for finding persecution. See Prasad, 47 F.3d at 341 (Pregerson, dissenting). Rather, the more telling comparison that should be made involves the extent of harm that each endured. Although I recognize that the factual circumstances confronting Prasad and Li were distinct, the physical pregnancy examination that Li was forced to endure was so qualitatively different that the comparison is of little value in determining whether Li was subjected to persecution.

In stark contrast to the majority’s description of her experience, Li uses a more forceful characterization to describe her ordeal. She calls it rape-like. This is understandable in light of Li’s refusal to consent, the way family planning officials held her down, and the doctor’s physically invasive examination of her “private parts” as opposed to a less offensive urine or blood test. Because rape is commonly defined as nonconsensual sexual conduct involving penetration committed by physical force, 1 the analogy does provide some insight into her subjective experience. Although Li does not elaborate on the proce *1106 dures used, 2 this comparison graphically conveys the nature of her ordeal and the harm she suffered when she was forced to endure a physical pregnancy examination. Indeed, her experience shares several aspects of the experience of a rape victim, including the intrusion into her body, the forced physical submission, and the feelings of fear and humiliation. Even so, it is not necessary to rely on our asylum rape cases, see e.g. Shoafera v. INS, 228 F.3d 1070 (9th Cir.2000), to conclude that Li suffered persecution when she was forced to endure a pregnancy examination by local family planning officials.

Ultimately, we must assess all aspects of the harm suffered by an individual asylum applicant. Here, the forced examination, the invasive nature of the examination, Li’s resistance and the threats of future forced pregnancy examinations, abortions and sterilization compel the conclusion that Li suffered persecution by local Chinese officials.

2. Coercive Population Control Program

Although the majority does not address whether Li’s forced examination was on account of her resistance to a coercive population control program, the uncontested evidence at Li’s asylum hearing established the remaining elements of section 601. With regard to the coercive population control program, the former deputy mayor of the city in which Li lived testified as follows regarding the family planning policies governing couples who live together before they reach the age of marriage:

Q: If you know, Mr. Lin, what are the consequences assigned to people who marry after their marriage license has been denied, who have gotten married in defiance?

A: Well the consequences is serious.

Q: Can you elaborate a little?

A: That was consider early age marriage. That was a violation of the family planning policy. These people will be (indiscernible) physically examined every three months to see if the woman is pregnant ... Now if a woman is found pregnant, she was subject to the operation of abortion immediately.

Q: Yeah. But let me ask you the question. What we want to know is that if somebody, if a couple, after their application for marriage certificate is denied, if a couple decide to go ahead and live together as husband and wife, what does the law provide for that kind of violation or infraction in China?

A: Whatever (indiscernible) reason of the family planning policy.

Q: Yeah. The woman would be asked to report for pregnancy test every three months. Is that right? That’s what you say?

A: Yes.

*1107 Q: What if the pregnancy test is negative, but they are underage, still underage?

A: Well even though the test was negative, the local authority is responsible to educate the couple.

Q: Right. So there would be mandatory education, pregnancy testing.

This is consistent with Li’s testimony regarding the events leading up to her forced examination.

3. On Account Of

Further, the evidence before the IJ established that Li was subjected to the forced examination on account of her attempts to resist the policy. Li testified that people in her village believed that she was living with her boyfriend, a fact which in and of itself gave rise to the possibility of an unauthorized pregnancy. The villagers further “informed” local officials that she was pregnant. Then, when the village representative came to her house and told her to end her relationship, she stated her intention to have many children with her boyfriend. He told her that she “would pay,” and just two days after this confrontation, family planning officials forced her to undergo a physical examination to determine if she was pregnant. In fight of the population control policy, her defiant statements, and the subsequent forced examination, the undisputed evidence shows that Li was subjected to the family planning policies described by the former deputy mayor.

k. Resistance

The record also demonstrates that Li resisted the policy itself and its enforcement. First, she resisted by telling the village representative that she did not believe in the policy and that he should not interfere. We have held that statements and perceived associations can constitute resistance for asylum purposes. See Desir v. Ilchert, 840 F.2d 723, 727-28 (9th Cir.1988) (holding that refusal to pay money to corrupt quasi-government forces constituted resistance and basis for persecution); Ventura v. INS, 264 F.3d 1150 (9th Cir.2001) (stating that family members’ involvement in military was the basis for guerilla forces believing petitioner was resisting their recruitment efforts), rev’d on other grounds, — U.S. -, 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002). Further, as the majority notes, Li testified as follows regarding her resistance to the physically invasive examination to determine whether she was pregnant:

A: I was yelling. I refused to be inspect[ed].

Q: So you refused the pregnancy test, right?

A: Of course. I am still unmarried. I’m still a girl.

Q: Let me ask you. Did they take a urine sample?

A: I was so nervous. No. I have not. Doctor came in to examine my private area.

Q: All right.

Q: Did you, did you shout for help when this was happening?

A: Yes.

Q: What did you say?

A: I said you guys are not fair to me. That is no reason to do this to me. Let me go. Let me go. Release me. I was kicking my feet. The family planning person came in and pressed my leg. Stop yelling. If keep on yelling, and in the future you are subject to this kind of test anytime. And if you are found pregnant, you are subject to abortion, and your boyfriend will also be, will under sterilization operation. For the rest of your life you cannot have a child.

*1108 Li’s testimony established that she resisted both the policy and the local birth control officials’ decision to subject her to a physical examination to determine whether she was pregnant. She was forced to endure an invasive examination despite both her verbal and physical protests and her refusal to submit voluntarily to the examination. Because Li was persecuted on account of her resistance to a coercive population control program, she meets the statutory definition of a “refugee” under section 601.

Once we determine that an alien has suffered past persecution, this conclusion triggers a regulatory presumption that the alien has a well-founded fear of future persecution. This presumption provisionally establishes the alien’s refugee status and eligibility for asylum. 8 C.F.R. 208.13(b)(1)(i); Popova v. INS, 273 F.3d 1251, 1259 (9th Cir.2001). This presumption “may be overcome by evidence that ‘since the time the [past] persecution occurred, conditions in [the country of petitioner’s nationality] have changed to such an extent that [petitioner] no longer has a well-founded fear of being persecuted if [s]he were to return’ ” to her home country. Me za-Manay v. INS, 139 F.3d 759, 766 (9th Cir.1997) (quoting Prasad v. INS, 101 F.3d 614, 616 (9th Cir.1996)) (alteration in original). Li was persecuted because of her resistance to China’s coercive population control policy. She resisted a forced, physical pregnancy examination administered after village members informed local family planning officials that she was living with her boyfriend underage and out of wedlock, and she was threatened with future examinations as a consequence of her resistance. The INS failed to present any evidence that her resistance to China’s coercive population control policy would go unpunished once she reached a certain age, nor did it present any evidence that the population control policy has changed.

The majority concludes that because Li’s personal circumstances have changed — she is now of legal age to marry — she no longer has a basis to fear future persecution. This conclusion is unfounded,- however, because the presumption of a well-founded fear of future persecution cannot be rebutted merely by pointing to changes in an applicant’s personal life. Meza-Manay, 139 F.3d at 765-66 (holding that where the only evidence offered to rebut the presumption was that petitioner was no longer married to her police-force-member husband, the INS failed to prove changed country conditions); 8 C.F.R. 208.13(b)(1)(i). Because the INS did not present any evidence of changed country conditions at Li’s asylum hearing, it has not rebutted this presumption. I would, therefore, conclude that Li has demonstrated statutory eligibility for asylum and grant her petition.

B. Withholding of Removal

Further, because Li has established that her freedom was threatened in China and the INS has done nothing to rebut the presumption of her well-founded fear of persecution should she return, I would also conclude that she is entitled to withholding of removal. Withholding of removal is mandatory if an “alien’s life or freedom would be threatened[in the country of origin] on account of race,- religion, ... or political opinion.” 8 U.S.C. § 1231 (b)(3)(A). Although the standard is more rigorous than the well-founded fear standard for granting asylum, compare INS v. Stevic, 467 U.S. 407, 424 , 104 S.Ct. 2489 , 81 L.Ed.2d 321 (1984) with INS v. Cardoza-Fonseca, 480 U.S. 421, 449 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987), a “determination of past persecution such that a petitioner’s life or freedom is threatened creates a presumption of entitlement to withholding” of removal. Rios v. Ashcroft, *1109 287 F.3d 895, 903 (9th Cir.2002) (quoting Ventura, 264 F.3d at 1154 ). Because the INS failed to present any evidence of changed country conditions, it is “more likely than not that [Li] would be subject to persecution.” Stevic, 467 U.S. at 424 , 104 S.Ct. 2489 . I would therefore also conclude that Li is entitled to withholding of removal. 3

II. Yu’s Petition

I agree with the majority’s conclusion that Yu is not eligible for asylum and that he is not entitled to withholding of deportation under both 8 U.S.C. § 1231 (b)(3)(A) and Article 3 of the United Nations’ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, but for different reasons. Although Yu likely could claim imputed persecution if he had married Li, see In re C-Y-Z, 21 I & N Dec. 915 (1997), the record reflects that Yu and Li never married. The facts here do not warrant imputing Li’s persecution under section 601 to Yu. Considering his petition on its own merits, I would deny Yu’s petition because the only persecution he can claim with respect to his resistance to a coercive population control program is the threat of forced sterilization that the family planning official made during Li’s forced pregnancy examination. Because Yu was not present at that examination and was never confronted by family planning officials, this threat of possible future sterilization does not rise to the level of persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (finding no past persecution where Lim received death threats in the mail and by phone, but was never even closely confronted or otherwise harmed). On the record here, I agree with the majority’s conclusion that his petition should be denied.

. See Samuel H. Pillsbury, Crimes Against the Heart: Recognizing the Wrongs of Forced Sex, 35 LOY. L.A. L. REV. 845, 859 (2002).

. The record does not document the procedures used by doctors in Li’s village, but the record does establish that Li was subjected to a physical pregnancy examination without the benefit of a urine or blood test. Aside from measuring levels of chorionic gonadotropin (hCG) in a woman’s blood or urine, the only other means of diagnosing pregnancy before 17 weeks are to identify the presence of changes or signs and symptoms in the uterus, the cervix, and the vaginal mucosa. See WILLIAMS OBSTETRICS 22-34 (F. Gary Cunningham ed., 20th ed.1997). The cervix is the opening to the uterus and it sits at the end of the vaginal canal inside the woman’s body. Id. at 41, 46-47. Therefore, without a urine or blood sample, one method of physically diagnosing pregnancy and detecting the changes in the uterus and cervix is "with one hand of the examiner on the abdomen and two fingers of the other hand placed in the vagina, the still-firm cervix is felt, with the elastic body of the uterus above the compressible soft isthmus, which is between the two.” Id. at 25.

. Because I would grant Li’s petition with respect to asylum and withholding of removal, it is not necessary to address Li's claim for withholding of removal and/or deferral of removal under the Article 3 of the United Nations’ Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature February 4, 1985, S. Treaty Doc. No. 100-20, at 20 (1988), 23 I.L.M. 1027, 1028 (1984).