Qiao Hua Li v. Alberto R. Gonzales, Attorney General

GREGORY, Circuit Judge,

dissenting:

Even assuming, as the majority finds, that the insertion of Li’s IUD was a “medically routine insertion,” this insertion was still persecution because Li was compelled coercively to submit to a procedure that caused her harm, that she found offensive, and that was done in violation of her personal bodily privacy. Moreover, Li resisted China’s coercive population control program by voicing her opposition to the IUD’s insertion and its continued required use. However, I would remand this case to the BIA to consider whether, per 8 U.S.C. § 1101 (a)(42)(B), Li’s persecution was on account of any such resistance. Therefore, I respectfully dissent.

I.

Prior to 1997, the BIA consistently held that persecution under China’s “one child” family planning policy was not persecution “on account of political opinion,” and that victims of these policies were therefore not entitled to asylum. In response to this interpretation, Congress amended the definition of “refugee” to include those who had been persecuted under a coercive family planning program, or who legitimately feared such persecution. See 8 U.S.C. § 1101 (a)(42) (1999).

Since this amendment some jurisprudence on what qualifies as past persecution or a well-founded fear of future persecution has emerged. Notably, courts have interpreted the plain language of the statute to provide that forced abortions and sterilizations are per se persecution and trigger asylum eligibility. Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir.2004); Wang v. Ashcroft, 341 F.3d 1015, 1020 (9th Cir.2003). Spouses of those subject to abor *181 tions and sterilizations have also been granted asylum. He v. Ashcroft, 328 F.3d 593, 603-04 (9th Cir.2003); Qiu v. Ashcroft, 329 F.3d 140, 144-45 (2d Cir.2003); In re C-Y-Z, 21 I. & N. Dec. 915, 918 (BIA 1997). A well-founded fear of future persecution has been established in cases in which the Chinese government forbade a woman to have a child based on her parents’ violation of the one-child policy, Zheng v. Ashcroft, 108 Fed.Appx. 523, 525 (9th Cir.2004), and in which a woman, who had also experienced past persecution, feared she would have to undergo sterilization and imprisonment for removing an IUD if she returned to China, Wang v. Ashcroft, 341 F.3d 1015, 1018 (9th Cir.2003).

Less defined are cases in which an applicant seeks asylum based on “other resistance to a coercive population program.” 8 U.S.C. § 1101 (a)(42) (1999). The first and only extensive discussion of this category of asylum-seekers is the Ninth Circuit’s decision in Li v. Ashcroft, 356 F.3d 1153 (9th Cir.2004). In Li, the court confronted the issue of “whether 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” satisfies this category. 356 F.3d at 1156 .

In concluding that she did qualify for asylum, the court analyzed each component of persecution on account of resistance to a coercive population program. Under its discussion of “persecution,” the court concluded that Li suffered a forced pregnancy examination (in which she was held down) after she announced her opposition to China’s “one-child” policy and that this qualified as past persecution. Id. at 1158 . It also found that Li had a well-founded fear of future persecution because she was threatened with future abortion and/or sterilization as well as imprisonment. Id. at 1159 .

The Ninth Circuit then looked at whether a “coercive population control program” existed in Li’s city. It found ample evidence that China’s program was in effect in Li’s city and that it applied to Li because: 1) it set a minimum age for marriage that Li had not met, and 2) limited family size to one child per couple. Id. at 1159-60 . Next, the court considered Li’s “resistance” and found that she resisted in two ways: 1) she vocally resisted the mar-riageage restriction when she publicly announced her decision to marry after being denied a marriage license and told an official that she planned to have “many babies,” and 2) she physically resisted by struggling during the forced gynecological examination. Id. at 1160 . Finally, the court considered whether Li’s persecution was “on account of’ her resistance. In finding that it was, the court explained that “Li clearly would not have been forcibly examined for pregnancy but for her resistance to China’s population control program.” Id.

No court has ruled on whether an involuntary IUD insertion can qualify as persecution on account of other resistance to China’s population control program. Indeed, the only circuit courts to consider this issue have remanded the question for further consideration. 1 Thus, our decision in this case is of great import.

*182 II.

For Li to be eligible for asylum under 8 U.S.C. § 1101 (a)(42)’s “other resistance” provision, she must demonstrate that she was subject to (1) persecution (2) on account of (3) resistance (4) to a coercive population control program. 2

Looking first to “persecution,” the majority seeks to cast the issue of whether an involuntary IUD can qualify as “persecution” under the facts of this case narrowly by asserting that Li only challenges the single event of the insertion of the IUD and not its continued required usage. Ante at 178-179. It then notes that “Li does not allege force, physical abuse, or other equivalent circumstances,” but rather that she was only required to have “a medically routine insertion” of an IUD. Id. However, neither the record nor common sense supports such a narrow framing of the issue.

First, a full and fair reading of the record and briefs in this case clearly indicates that both the IUD’s insertion and its continued required usage are components of Li’s allegations of persecution. Specifically, Li states that she experienced abnormal menstruation after the IUD was inserted, that it has caused her pain, and that she has been subject to quarterly gynecological exams to make sure that the IUD was still inserted. J.A. 6, 29-30, 46-47; Petitioner’s Br. at 1. Such statements clearly indicate that Li is challenging the continued required usage of the IUD as well as its insertion.

Second, common sense dictates that the majority’s attempt to separate the insertion of the IUD from its continued required usage is indeed flawed. Despite the majority’s best efforts, one cannot separate the insertion of a device into the body — a device that only works if it remains inserted — from the continued usage of such a device. Rather the insertion and continued required usage of an IUD are part and parcel of the claim of persecution. 3 To separate these realities in such an artificial manner is to evade the very real and difficult issue in this case — whether both the insertion of an IUD and its continued required usage fall under the definition of “persecution.”

Turning now to a full analysis of this issue, case law has characterized “persecution” as “an extreme concept” marked by “ ‘the infliction of suffering or harm ... in a way regarded as offensive.’ ” Fisher v. INS, 79 F.3d 955, 956 (9th Cir.1996) (en *183 banc) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995)); see also Fatin v. INS, 12 F.3d 1233 , 1240 & n. 10 (3d Cir.1993) (stating that persecution denotes “extreme conduct”). Here, Li testified that she was required to submit to an IUD that she did not want, that she found it uncomfortable, that it caused abnormal menstruations, and that she asked for it to be removed on several occasions, testimony that the IJ did not discredit. 4 Looking to the definition of persecution, Li was compelled to submit to a procedure that caused her suffering and that she found offensive — a procedure in which a foreign object was inserted into her body. In addition, Li was required to keep the IUD inserted despite both her physical pain over its usage and her objection to its usage as a birth control device. The insertion and continued required usage of the IUD constitute both a violation of Li’s personal bodily privacy and a continuing invasion of that privacy. I would thus find that these acts clearly meet the definition of “persecution.”

Under the majority’s narrow consideration of the issue of “persecution,” it places much weight on the fact that Li presented no evidence that she was forcibly inserted with the IUD, suggesting in turn, that submitting to an IUD insertion, even if one does not desire it, does not equate to persecution. This argument assumes that Li has to demonstrate that she was physically restrained for the insertion to qualify as persecution. However, persecution under 8 U.S.C. § 1101 (a)(42)(B) is not limited to situations involving physical restraint or force. See Ding v. Ashcroft, 387 F.3d 1131, 1139 (9th Cir.2004) (finding that reading into the statute a “physical restraint” requirement would contravene the statute’s purpose to bestow refugee status onto those individuals persecuted under China’s “coercive” population control program). The majority’s insinuation of a physical restraint requirement onto the statute, which it buttresses by extensively reviewing cases in which courts have found persecution (under the more general persecution statute) in the face of severe physical abuse, is simply at odds with the plain language of the statute in this case (which specifically addresses coercive population control programs) and is thus irrelevant to our analysis here. 5 Yet the absence of physical force is the only ground on which the majority bases its finding that the insertion of the IUD is not “persecution” under this statute. 6

*184 Although I would find that Li was subject to persecution, under the statute she still must demonstrate that she resisted China’s coercive population control program and that her persecution was on account of such resistance. Yet the IJ, whose review of Li’s claim can only be characterized as cursory and dismissive, as well as the BIA, who entered merely a perfunctory order adopting the IJ’s disposition, did not reach these latter two issues. I thus review them briefly.

In considering Li’s resistance, I look to the ordinary meaning of the word “resistance.” It is defined as “the act or power of resisting, opposing, or withstanding.” Webster’s College Dictionary 1124 (2d ed.2000). “Resisting” in turn is defined as “to withstand, strive against, or oppose .... ” Id.

In this case, Li testified that she did not want the IUD and that she further asked that it be removed several times but that her requests were denied. While Li’s voiced opposition to the IUD was not made in a public manner, as in the Ninth Circuit’s Li case, I do not read the statute to require public resistance. Expressing one’s opposition to the implementation of the coercive population control program, as Li did when she opposed the IUD’s insertion and repeatedly asked the IUD to be removed, is no less “resistance” than would be a public representation of her opposition. I would thus find that the record fully supports a conclusion that Li “resisted” China’s coercive population control program.

Under the statute, a causal connection must also exist — Li’s persecution must be “on account of’ her resistance. Here, neither the IJ nor the BIA considered whether any such causal connection exists and the record is not otherwise clear on this issue. It could be that the IUD’s insertion was simply a routine facet of China’s administration of its policy, in which case the “on account of’ element would not be satisfied. See Supp. J.A. 101 (noting that “women who do not qualify for a Family Planning Certificate that allows them to have a child must use an intrauterine device (IUD) or implant”). Or, Li may be able to demonstrate that at least part of the family planning officials’ motivation in subjecting her to the insertion of an IUD (or its continued required usage) was her opposition to China’s policy. 7 See Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003) (“A persecutor may have multiple motivations for his or her conduct, but the persecutor must be motivated, at least in part, by one of the enumerated grounds.”) (citing Chang v. INS, 119 F.3d 1055, 1065 (3d Cir.1997)). I would thus remand the case for consideration of this issue.

III.

I dissent from the majority’s conclusion that the insertion of the IUD was not persecution as well as its assertion that Li does not challenge the continued required use of the IUD. Li was compelled coercively to submit to a procedure that caused her harm and that she found offensive, a procedure in which a foreign object was inserted (and required to remain inserted) *185 into her body in violation of her personal bodily privacy. This was persecution. Furthermore, Li resisted China’s coercive population control program by voicing her opposition to the IUD’s insertion and its continued required use. I would, however, remand the case to the BIA to consider the further question of whether Li’s persecution was on account of her resistance.

. In an unpublished disposition, the Third Circuit recently remanded a case to the BIA to consider whether a fine plus IUD insertion could qualify as such resistance. See Fang v. Ashcroft, 114 Fed.Appx. 486 (3rd Cir.2004) (noting that "the Board and the Circuit Courts have not specifically addressed whether a woman who unwillingly acquiesced to obtaining an IUD 'has been persecuted and finding the BIA's use of streamlining case *182 procedures thus improper). In addition, the Seventh and Ninth Circuits have remanded similar cases. The Ninth Circuit remanded a case in March 2004 that presented the issue of whether a fine and an involuntary IUD can demonstrate that one has a well-founded fear of future persecution. Chen v. Ashcroft, 362 F.3d 611, 622-23 (9th Cir.2004). The Seventh Circuit remanded a case in September 2004 for a determination of whether three involuntary IUD insertions and mandatory pregnancy checkups could constitute persecution as a "coercive population control program” and whether the applicant's efforts to have an IUD removed is the type of "resistance” that Congress sought to protect under the statute. Lin v. Ashcroft, 385 F.3d 748, 757 (7th Cir.2004).

. A strict one-child policy is in place in Li’s home, Fuzhou City, because it is a large city in China. Supp. J.A. 101; see China: Profile of Asylum Claims and Country Conditions (U.S. State Department, April 14, 1998) (stating that Fujian Province, in which Fuzhou City lies, has a one-child policy). Because this does not appear to be in dispute, I do not analyze this element separately.

. Indeed, it should go without saying that if the Chinese government was persecuting Li by requiring her to submit to an IUD, that then removing the IUD (as the majority is fictionally doing by failing to consider its continued required usage) would undermine the goal of that persecution.

. The IJ only noted that Li’s failure to have it removed once present in the United States, given that her husband was in China, was suspect. The implication of the IJ's statement is itself suspect. Li testified that she did not dare to have the IUD removed for fear of what would happen if she returned to China without it. That her husband is still in China but she still had the IUD, which acts as a birth control device, is simply irrelevant.

. Even if the definition of persecution does involve some degree of "force,” as the majority assumes, the ordinary meaning of "force” includes "to constrain or compel by physical, moral, or intellectual means or by exigencies of circumstances,” Webster’s International Dictionary 887 (3d ed.1981), and "to compel, constrain, or oblige (oneself or someone) to do something,” Webster’s College Dictionary 512 (2d ed.2000). Thus, the common meaning of "force” can apply to situations in which one is "compelled” to do something by means other than physical restraint and can certainly encompass what the majority refers to as a "medically routine insertion.” Indeed if one did try to struggle during the procedure, the result would likely be only more discomfort and possible harm to the uterus.

.The majority’s assertion that it has "concluded merely that the absence of physical force in the insertion of Li’s IUD is one relevant factor among several in [its] determination,” ante at 179 - 180 n. 5, is hard to fathom given that it distinguishes this case on the ground that it does not involve forcible mistreatment or physical abuse and then inti *184 mates that it “might be well prepared to hold that the compulsory insertion and required usage constitutes persecution,” if such forcible mistreatment or physical abuse were present, id. at 179.

. For example, if Li presented evidence that she was subjected to an IUD when others, who were similarly situated to herself but who had not voiced opposition, were not, or that family planning officials gave some indication that she was being subjected to an IUD because of her opposition, I believe that Li would be entitled to relief under the statute.