United States v. 2007-01-08 | 05-74130 | LIN VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LI BIN LIN,
Petitioner, No. 05-74130
v. Agency No.
 A76-868-356ALBERTO 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
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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
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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
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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
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(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
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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
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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
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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
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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.
1Lin 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).
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