On Petition for Review of Order of the Board of Immigration Appeals (Board No. A73-171-500)
Before: Sloviter, Becker, and Stapleton, Circuit Judges.
The opinion of the court was delivered by: Becker, Circuit Judge.
Zhen Hua Li, who contends that he has been persecuted as a result of his defiance of China's population control policy, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the denial of his application for asylum and withholding of removal. Although Li submits that he and his wife were threatened with sterilization, detention, and physical abuse, the evidence supporting the claim of physical persecution does not carry the day. His more significant claim is one of economic persecution: he and his wife were subjected to a fine equivalent to twenty months' salary, lost their jobs (and accompanying health insurance, food rations, and school payments), were effectively blacklisted from other government employment, and had their furniture and major household appliances confiscated. All of this, they argue, was deliberate retaliation for having had four children.
The BIA assumed that Li was credible, but found that he nevertheless failed to establish a claim of past economic persecution. While the contours of the doctrine are still developing, the existing jurisprudence establishes that economic deprivation, if sufficiently severe, can constitute persecution within the meaning of asylum law. Drawing upon that jurisprudence, we hold that deliberate imposition of severe economic disadvantage because of a protected ground may rise to the level of persecution. While the issue is close, we believe that on the evidence in the record, this rigorous standard was met here. Moreover, our examination of the record reveals that, given the BIA's credibility assumption, the Board understated the evidence in the record regarding economic persecution. For these reasons, we will grant Li's petition for review and remand to the BIA for further proceedings on the credibility issue.
I. FACTS AND PROCEDURAL HISTORY
Li is a citizen of the People's Republic of China. He married in 1983. He was employed as a mechanic in government-owned factories since 1970, and his wife was employed as a nurse. Their first child was born in 1984, a second child in 1986, and a third in 1987. Apparently, at the time of his second child's birth, China allowed couples to have two children. However, according to Li, after the birth of the third child, the birth control officials punished him with a 1200 yuan fine, forced his wife to have an IUD implanted, and spared her sterilization only because she professed poor health. Li testified that the fine was equivalent to twenty months' salary. He submitted a receipt for 1200 yuan that indicated the fine was imposed for "violation of Planned Family policy."
Two years later, in 1989, Li's wife became pregnant with the couple's fourth child. At this point, more serious consequences ensued. First, the birth control officials notified the couple that Li's wife would have to have an abortion. In addition, Li claimed that he knew of someone at a neighboring factory who, after having a fourth child, was detained and beaten, suffering severe injuries to his legs, and was fired from his job, and that officials threatened that if Li's wife did not have an abortion, Li and his wife would "end up like them, we'll be captured and will be beaten up." Nevertheless, Li said that because his wife claimed that she had health problems, the doctors did not force her to have an abortion or to undergo sterilization after the baby was born. Li also expressed fear that the authorities might try to sterilize him if he were captured.
Before the baby was born, Li went into hiding in neighboring cities, but he returned home shortly after his wife gave birth to the fourth child. Upon arriving home, he found that he had been terminated from his job because of his violations of the population control policy. He introduced an unauthenticated document that stated the termination was for "serious violation of the planned family policy, as well as his forecful [sic] giving birth to the forth child."
After receiving notice of his termination, Li remained in hiding, staying with friends in other cities. Li admitted that he got by with "some temporary jobs" but claimed that "[b]ecause I have violated the birth control policy, most government companies would not hire me." Li stated that he was afraid to even apply for another job because "if I apply for jobs in... government companies they will, my original factory... would know my whereabouts so they... would capture me." Thus, Li claimed that it was impossible to find a job because of his violation of the birth control policy.
With the loss of his job also came the loss of many other benefits, including health insurance, money for school tuition, and food rations. His wife was also fired from her job as a result of the fourth child and has been unable to obtain employment since. Moreover, Li testified that when he returned home on one occasion to visit his wife and children, the birth control authorities had confiscated appliances and large household items such as their refrigerator, television, and other furniture.
Li fled to the United States in 1990, fifteen months after the birth of his fourth child. He applied unsuccessfully for asylum in 1993. In 1996, the INS instituted deportation proceedings against him through the issuance of an Order to Show Cause. At his initial proceeding, Li conceded deportability, but continued to seek asylum and withholding of deportation. The merits proceeding on his asylum and withholding of deportation claims did not occur until March 8, 1999.
The Immigration Judge (IJ) who heard the case denied Li's petition. The IJ based his decision largely on his finding that there was a "failure of proof." In particular, he found that Li had not presented sufficient documentation of the forced IUD, of his inability to obtain work, or of the very existence of a family unit. Li in fact presented documentary evidence of his marriage, registration cards for his four children, two photographs of his family, a receipt for the fine paid after the birth of the third child, and his factory dismissal certificate, but the IJ gave these minimal weight because they were unauthenticated.
The IJ also advanced an "alternative discretionary analysis" in which he found that even if Li would otherwise qualify for asylum, he would deny Li's petition as a matter of discretion because it was not reasonable for Li to have left his "sick wife and four minor children, an unemployed sick wife, no less, and a blacklisted wife, and taking, I guess whatever savings the family had and leaving for the United States."*fn2
Li filed a timely appeal with the BIA on April 5, 1999. The BIA did not rely on the IJ's adverse credibility determination in denying the appeal. Indeed, the BIA acknowledged that Li "identified some error in the Immigration Judge's decision," but it nevertheless "agree[d] with the Immigration Judge's ultimate resolution." The BIA rested its denial of relief on the grounds that, "[e]ven assuming [Li] is credible, [he] failed to demonstrate past persecution" because "when viewed in the aggregate, a fine, the confiscation of some personal property, and loss of a government job" do not constitute persecution. Moreover, the BIA found that "increased cost of tuition and medical care does not constitute persecution." The BIA did not make any other findings or conclusions analyzing Li's testimony regarding economic deprivation, nor did the opinion address Li's claim that he and his wife were threatened with sterilization, forced abortion, incarceration, and other physical abuse.
The BIA also found that Li did not establish he had a well-founded fear of future persecution, noting that
in light of [Li's] ability to live unfettered for 15 months before leaving China, his wife's ability to continue living in China without sterilization, and the ages of the respondent and his wife, [Li] failed to sustain the burden of proving a well-founded fear of future persecution on account of the coercive population control policies in China.
Because it based its decision on the legal conclusion that Li's allegations did not rise to the level of persecution, the BIA declined to address the validity of the IJ's "alternative discretionary rationale," or the IJ's adverse credibility determination.
II. JURISDICTION, SCOPE OF, AND STANDARD OF REVIEW
The BIA had jurisdiction over this matter pursuant to 8 C.F.R. § 3.1(b)(3) (2003). Because petitioner's deportation proceedings began with an Order to Show Cause issued by the Immigration and Naturalization Service on June 26, 1996, this matter falls under the Transitional Rules set forth in section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Our jurisdiction, therefore, is governed by former section 106(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1105a(a), which provides the exclusive procedure for judicial review of all final orders of "deportation and exclusion" in proceedings initiated prior to April 1, 1997. The BIA's final order was entered on March 4, 2003, and the petition for review was timely filed on April 3, 2003. See IIRIRA § 309(c)(4)(C).
Where, as here, the BIA issues a decision on the merits and not simply a summary affirmance, we review the BIA's, not the IJ's, decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We must treat the BIA's findings of fact as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir. 2003). Moreover, "'persecution' and 'well-founded fear of persecution' are... findings of fact that we review under the deferential substantial evidence standard," and thus the BIA's findings must be upheld "unless the evidence not only supports a contrary conclusion, but compels it." Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). Therefore, we must uphold the BIA's factual findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to an alien who is a "refugee" within the meaning of 8 U.S.C. § 1101(a)(42). Generally speaking, an applicant must show that he or she:
is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of [the country of such person's nationality or in which such a person last habitually resided] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....
8 U.S.C. § 1101(a)(42)(A). A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). While asylum constitutes discretionary relief, an applicant is entitled to withholding of removal if he or she can satisfy the higher burden of demonstrating that it is more likely than not that life or freedom would be threatened because of a protected ground if he or she were removed. 8 U.S.C. § 1231(b)(3)(A) (1999); Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003).
Especially relevant here is the fact that the IIRIRA amended § 1101(a)(42) by specifying that:
[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 coercive population control program, shall be deemed to have been persecuted on account of political opinion, 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.
Therefore, to be deemed to have been a "refugee" under Section 1101(a)(42), Li must establish that he was persecuted for "failure or refusal" to undergo involuntary sterilization or for "other resistance" to China's population control policy, or alternatively, that he has a well-founded fear of being persecuted for his resistance to the population control policy were he to be sent back to China.
The BIA has held that when a petitioner's spouse has suffered coerced sterilization or abortion, such persecution of the spouse is considered an act of persecution against the petitioner himself. Matter of C-Y-Z -, 21 I. & N. Dec. 915, 917 (BIA 1997) (en banc) ("[P]ast persecution of one spouse can be established by coerced abortion or sterilization of the other spouse."). But see Cai Luan Chen v. Ashcroft, 381 F.3d 221, 226-27 (3d Cir. 2004) (finding it unnecessary to decide whether C-Y-Z- is a permissible interpretation of the IIRIRA, but noting that C-Y-Z 's interpretation is "not without difficulties"). However, Li does not contend that his wife was either sterilized or forced to have an abortion; rather, he alleges that she refused such procedures and was able to avoid them because she claimed she was in poor health. Because Li has alleged that he personally resisted China's population control policy by fleeing to avoid his own sterilization and by agreeing to have a third and fourth child ...