In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2836
S HI C HEN,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A095-673-283
A RGUED F EBRUARY 24, 2009—D ECIDED A PRIL 28, 2010
Before R OVNER, W OOD , and SYKES, Circuit Judges.
S YKES, Circuit Judge. Shi Chen is a native of China who
as the fifth child in his family was born in severe viola-
tion of China’s one-child policy. As a penalty for his
unlawful birth, his mother was forcibly sterilized, and
his parents were required to pay a large fine that
equaled the family’s annual income. Chen’s aunt had
earlier been forced to abort an illegal pregnancy and
she, too, was thereafter involuntarily sterilized.
2 No. 08-2836
Children born illegally in China—known as the hei
haizi—may not be listed on their family registry, the
hukou, and are therefore denied many of the rights of
full citizenship. Among these are the right to state-pro-
vided elementary schooling, higher education, and
health care; the right to be included in the family’s land
and food allocation; and the right to move freely about
the country. The hei haizi are also excluded from many
jobs, may not acquire property, and in some cases are
denied the right to marry and have children. Chen’s
parents paid large fines in order to list Chen on the back
of their hukou; though this did not legalize him, it did
allow him to attend school as long as his parents con-
tinued to pay the ongoing fines. Their ability to do so
ran out before he reached high school.
When he was 17 years old, Chen left China for the
United States and upon arrival was immediately
detained by immigration officials. He applied for
asylum, withholding of removal, and protection under
the Convention Against Torture, arguing that he has
been or will be persecuted because of his family’s resis-
tance to China’s one-child policy and his membership
in social groups that include his family and the hei haizi.
See 8 U.S.C. § 1101(a)(42)(B) (persecution on account of
political opinion includes persecution for resistance to a
coercive population-control program). An Immigration
Judge (“IJ”) denied relief, and the Board of Immigration
Appeals (“BIA”) affirmed. Chen petitioned this court
for review.
We grant the petition and remand to the immigration
agency for further proceedings. The agency’s analysis
No. 08-2836 3
of Chen’s asylum claim was incomplete. The BIA failed
to address Chen’s claim of past persecution based on
imputed political opinion—that is, the persecution that
his mother and other family members suffered for
their resistance to China’s coercive population-control
policy. His mother’s forcible sterilization does not auto-
matically entitle Chen to a finding of past persecution,
but it may in combination with other evidence show
that his family’s resistance to China’s population-
control policy has been imputed to him. The BIA also
failed to consider the cumulative significance of the
hardships visited upon Chen and his family—and the
future hardships he would face if returned—when evalu-
ating Chen’s fear of future persecution.
I. Background
Chinese law significantly restricts the freedom of its
citizens to bear children. No family is permitted to have
more than two children, and Chinese law limits most
families to one child. B UREAU OF D EMOCRACY , H UMAN
R IGHTS & L ABOR, U.S. D EPARTMENT OF S TATE, C HINA:
P ROFILE OF A SYLUM C LAIMS AND C OUNTRY C ONDITIONS 21
(Oct. 2005) (“2005 C OUNTRY R EPORT”). Married couples
are required to use birth control and must obtain
official permission—in the form of a “birth permit”—
before having a second child; some provinces require a
birth permit for a first child as well. Id. at 22. Violations
carry heavy fines—“social maintenance and compensa-
tion” fees—as well as other consequences for the
parents, including job loss or demotion, imprison-
4 No. 08-2836
ment in a “population school,” and forcible abortion or
sterilization. Id. at 22-23.
Lawfully born Chinese children are listed on the family
hukou, a registration document that entitles family mem-
bers to the rights of full citizenship. Children born unlaw-
fully are known as the hei haizi (meaning “black chil-
dren”) and are ineligible for registration on the hukou.
IMMIGRATION & N ATURALIZATION S ERVICE, U.S. D EPART-
MENT OF J USTICE, P ERSPECTIVE S ERIES: C HINESE S TATE
B IRTH P LANNING IN THE 1990S AND B EYOND 38 (Sept. 2001).
These “unplanned persons” are denied the right to state-
provided elementary schooling, higher education, health
care, and other governmental services and benefits. Id.
As adults they are excluded from many jobs, may not
purchase property, and may be denied the right to
marry and have children. Id.; see also 2005 C OUNTRY
R EPORT , at 23 (describing China’s unregistered “floating”
population).
Shi Chen was born in violation of China’s one-child
policy. He is a native of a small village in the Fujian
province and is the youngest of five children and the
only boy. Chen’s parents spent many years evading the
population-control authorities in their village, and his
family paid dearly for his birth. Soon after Chen was
born, his mother—who lived in hiding while pregnant
to avoid a forced abortion—was involuntarily sterilized.
His mother’s sister had earlier been forced to abort an
illegal pregnancy in her ninth month; afterward she was
involuntarily sterilized. Chen’s parents were required
to pay a large fine equivalent to the family’s annual
No. 08-2836 5
income as a penalty for his unlawful birth. They had to
give away one of his sisters shortly after she was born
because they could not afford to keep her. During an
earlier pregnancy, Chen’s mother fell off a ladder while
fleeing from population-control authorities; she broke
both her ankles, and the baby was stillborn.
Because Chen was born illegally, he could not be regis-
tered on the hukou and his family was denied the food
and land allocation provided for lawfully born children.
Payment of additional, ongoing fines allowed his
family to list Chen’s name on the back of their hukou. This
permitted him to attend school as long as his parents
continued to pay; they were able to do so through the
equivalent of middle-school but not beyond. (Chen’s
father is a subsistence farmer and works odd jobs for
extra income to support the family.) As a member of the
hei haizi, Chen asserts that he is denied access to health
care and other governmental services; is excluded
from higher education and many types of employment;
and will be denied the right to marry and have children,
the right to own property, and the right to freely travel
within and outside of China.
In 2004, when he was 17, Chen obtained false travel
documents and fled China for the United States. Upon
arrival in this country, he was detained by immigration
officials and placed in removal proceedings. Chen con-
ceded removability and applied for asylum, withholding
of removal, and protection against removal under the
Convention Against Torture (“CAT”). Citing his family’s
history of persecution for violating China’s one-child
6 No. 08-2836
policy, he claimed he would be targeted for forced steril-
ization and other persecution if returned to China.
The IJ who heard Chen’s case credited his testimony
(it was corroborated by several affidavits—most notably,
one from his father) but rejected his claims for relief,
concluding that Chen had not established past persecu-
tion or a well-founded fear of future persecution. In the
IJ’s view, the economic plight his family suffered on
account of his birth was not severe enough to be con-
sidered past persecution, especially since Chen had
never been detained by Chinese authorities and had
been permitted to attend school. The IJ also rejected
Chen’s argument that he had a well-founded fear of
persecution based on his status as a member of the hei haizi.
The BIA affirmed the IJ’s decision but conducted its
own analysis. Acknowledging that economic harm can
constitute persecution in appropriate circumstances, the
BIA held that the economic hardship Chen’s family
suffered was not significant enough to constitute persecu-
tion. The BIA also rejected Chen’s argument that he had
a well-founded fear of future persecution; the agency
based this conclusion on the fact that Chen had found
employment after his family could no longer afford
the fines necessary to permit him to attend school and
had also obtained a Chinese passport before leaving the
country. Finally, the BIA rejected Chen’s claim that he
would be targeted for sterilization based on his family’s
resistance to China’s population-control policy. The BIA
noted that it had never before held that “the political
opinion of a parent who has been forcibly sterilized can
No. 08-2836 7
be imputed to that parent’s child,” and “current case-
law [in the Seventh Circuit] does not allow the respon-
dent’s mother’s political opinion to be imputed to him.”
Chen petitioned this court for review.
II. Discussion
Where, as here, the BIA conducts its own analysis rather
than supplementing or adopting the decision of the IJ,
we review the BIA’s decision. Moab v. Gonzales, 500 F.3d
656, 659 (7th Cir. 2007). The agency’s legal conclusions
are reviewed de novo. See Mekhtiev v. Holder, 559 F.3d
725, 729 (7th Cir. 2009). We will uphold the agency’s
factual findings so long as they are “supported by rea-
sonable, substantial, and probative evidence on the
record considered as a whole.” Chatta v. Mukasey, 523
F.3d 748, 751 (7th Cir. 2008) (quotation marks omitted).
Under this deferential standard of review, reversal is
warranted only if “the evidence compels a different result”;
we will not overturn the agency’s findings simply because
we might have decided the case differently. Balogun v.
Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004). On the other
hand, remand may be warranted when the agency over-
looks key aspects of an asylum-seeker’s claim and
might reach a different conclusion after a more complete
evaluation of the record. See Gomes v. Gonzales, 473
F.3d 746, 752 (7th Cir. 2007); Chitay-Pirir v. INS, 169
F.3d 1079, 1081 (7th Cir. 1999).
The Attorney General has discretion to grant an alien
asylum under the Immigration and Nationality Act if the
8 No. 08-2836
alien qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1). A
refugee is a person who is unwilling or unable to return
to his native country “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.” Id. § 1101(a)(42)(A). A
showing of past persecution will trigger a rebuttable
presumption that the alien has a well-founded fear of
future persecution. 8 C.F.R. § 208.13(b)(1). Even if an
alien cannot show he has been subject to past persecu-
tion, he may nevertheless be eligible for asylum if he
has a well-founded fear of future persecution. Id.
§ 208.13(b)(2). This requires the alien to show that his
fear of persecution is both “subjectively genuine and
objectively reasonable.” Bolante v. Mukasey, 539 F.3d 790,
794 (7th Cir. 2008). To prevail under this standard, the
alien must present “specific, detailed facts showing a
good reason to fear that he . . . will be singled out
for persecution.” Sayaxing v. INS, 179 F.3d 515, 520 (7th
Cir. 1999) (quotation marks omitted).
Chen’s claims for relief are premised on his assertion
that he has been or will be persecuted on account of
political opinion and membership in a particular
social group. Regarding the former ground, Chen’s argu-
ment is based on § 1101(a)(42)(B), which provides that
persons who have been subjected to certain coercive
population-control measures or otherwise have been or
will be subjected to persecution for resistance to a
coercive population-control program are deemed to
have been persecuted on account of their political opin-
ion. More specifically:
No. 08-2836 9
For purposes of determinations under this chapter,
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.
8 U.S.C. § 1101(a)(42)(B). This subsection of the statute
creates four classes of refugees: (1) those who have
been forced to have an abortion or who have been invol-
untarily sterilized; (2) those who have been persecuted
for failing or refusing a coerced abortion or steriliza-
tion or for other resistance to a coercive population-
control program; (3) those who have a well-founded
fear that they will be forced to have an abortion or be
sterilized; and (4) those who have a well-founded fear
that they will be persecuted for failing or refusing
such procedures or for resisting a coercive population-
control program. See Lin v. Ashcroft, 385 F.3d 748, 752-53
(7th Cir. 2004).
The Attorney General has concluded that only those
who have themselves been forced to have an abortion
or have been involuntarily sterilized fall into the first class
of refugees. Matter of J-S-, 24 I. & N. Dec. 520, 527 (AG
2008); see also 8 C.F.R. § 1208.13(b)(1) (aliens who fall
10 No. 08-2836
into this category are automatically entitled to the pre-
sumption of a well-founded fear of future persecution).
Overruling BIA precedent, Matter of J-S- held that
an asylum-seeker whose spouse has suffered a forced
abortion or sterilization is not per se eligible for asy-
lum. Rather, the applicant must show that he or she
personally suffered or will suffer persecution for
resisting a coercive population-control program. Matter
of J-S-, 24 I. & N. Dec. at 542; accord Lin-Zheng v. Attorney
General, 557 F.3d 147 (3d Cir. 2009); Shi Liang Lin v. U.S.
Dep’t of Justice, 494 F.3d 296, 314 (2d Cir. 2007) (en banc).
Accordingly, under Matter of J-S-, evidence that the
applicant’s spouse was forced to abort a pregnancy or
undergo involuntary sterilization is relevant to the ap-
plicant’s claim but does not alone establish eligibility;
the applicant must also present evidence of his or
her own past persecution or reasonable fear of future
persecution. See Matter of J-S-, 24 I. & N. Dec. at 534-35
(“Some spouses may not have ‘resisted,’ and in fact
may have affirmatively supported, the forced abortion
or sterilization procedure that was performed on the
spouse who remains in China. . . . [A]pplicants must
present proof, of which their spouse’s treatment may be
a part, of persecution for refusing to undergo forced
abortion or sterilization procedures or for engaging
in ‘other resistance’ to a coercive population control
program, or of persecution on account of another ground
for asylum enumerated in the Act.”). The Attorney Gen-
eral’s interpretation of § 1101(a)(42)(B) is entitled to
deference under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), and the rationale
No. 08-2836 11
of Matter of J-S- applies with equal force to the claim of
an asylum-seeker like Chen whose parent has been forced
to have an abortion or undergo sterilization. See Chen v.
U.S. Dep’t of Justice, 417 F.3d 303, 305 (2d Cir. 2005) (per
curiam) (“[C]hildren are not per se as eligible for relief . . .
as those directly victimized themselves.”); Zhang v. Gonza-
les, 408 F.3d 1239, 1245-46 (9th Cir. 2005) (same); Wang
v. Gonzales, 405 F.3d 134, 142-43 (3d Cir. 2005) (same).
So Chen does not fall into the first category of
refugees created by § 1101(a)(42)(B). Under the rationale
of Matter of J-S-, Chen is not automatically eligible for
asylum because his mother was sterilized against her
will. Nor does Chen fall into the second class of refugees;
he has not “failed or refused” to be sterilized and
has not otherwise “resisted” China’s one-child policy.
He may, however, fall within the third and fourth
classes of refugees under § 1101(a)(42)(B)—those who
have a well-founded fear of involuntary sterilization
(forced abortion obviously is not at issue here), or those
who fear persecution for refusing sterilization or other-
wise resisting a coercive population-control program.
Chen has consistently argued that he fears he will be
involuntarily sterilized and otherwise persecuted be-
cause of his and his family’s violation of China’s one-
child policy.
Chen’s claim is thus based partly on a theory of
imputed political opinion. He contends that Chinese
population-control authorities either have imputed or
will impute his parent’s resistance to China’s one-child
policy to him. The BIA flatly rejected this argument
based on a perceived lack of circuit precedent to support
12 No. 08-2836
it. To the contrary, however, it is well established in this
circuit that an alien may base a persecution claim on
imputed political opinion. Under this theory the alien
is asserting that his persecutors have mistreated or will
mistreat him because they attribute someone else’s—
often a family member’s—political beliefs to him. See
Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007)
(“[A]sylum is available to persons who have been perse-
cuted based on imputed political opinion, including
situations where a persecutor attributes the political
opinion of one or more family members to the asylum
applicant.” (emphasis removed)); Nakibuka v. Gonzales,
421 F.3d 473, 478 (7th Cir. 2005); Lwin v. INS, 144 F.3d 505,
509-10 (7th Cir. 1998). To prevail on this sort of claim,
the alien must show that (1) his persecutors attributed
the political opinion of another to him, and (2) the at-
tributed opinion motivated or will motivate the perse-
cution. Sankoh v. Mukasey, 539 F.3d 456, 471 (7th Cir. 2008).
Chen argues that population-control authorities have
attributed or will attribute his parent’s flagrant violation
of China’s population-control program to him and that
he is therefore likely to be targeted for involuntary steril-
ization if returned to China. The Second and Ninth
Circuits have recognized that an asylum claim alleging
persecution for resistance to a coercive population-control
program under § 1101(a)(42)(B) may be partially based
on imputed political opinion—more specifically, such a
claim may rely in part on a parent’s persecution for
resisting a coercive population-control program. See Jiang
v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007); Zhang, 408
F.3d at 1246-47; Jie Lin v. Ashcroft, 377 F.3d 1014, 1031
No. 08-2836 13
(9th Cir. 2004). This is a specific application of the more
general imputed political-opinion theory—already estab-
lished in this circuit—and we therefore follow the lead
of these circuits in recognizing it here.
Our decision in Chen v. Gonzales, 457 F.3d 670, 674-75
(7th Cir. 2006), is not to the contrary. The alien in Chen
had two children in the United States, intended to
have more children in China, and feared she would be
involuntarily sterilized. To support her claim, the alien
submitted State Department reports and evidence that
her parents had been involuntarily sterilized. We noted
that this evidence did not compel the conclusion that
the alien would be sterilized upon her return to China
because the alien’s parents had been “sterilized many
years ago under circumstances bearing no relation to her
present circumstances.” Id. at 675.
Here, in contrast, Chen has submitted specific and
detailed evidence tending to show that he and his
family have been uniquely targeted by the population-
control committee in their village based on their per-
sistent resistance to China’s one-child policy. He
submitted evidence that his family spent many years
hiding from population-control authorities in their
village; his mother lost a child in utero when she fell
trying to escape population-control authorities; his
mother was forcibly sterilized after his birth; his aunt
suffered a forcible abortion and was thereafter involun-
tarily sterilized; his parents had to give away one of his
sisters because they could not afford her; and his family
was subjected to significant economic hardship as a
14 No. 08-2836
result of their extreme resistance to China’s one-child
policy.
As we have noted, the BIA summarily rejected the
imputed political-opinion basis of Chen’s claim without
analysis, having concluded that “current caselaw” in this
circuit did not support it. But the concept of persecution
based on imputed political opinion has long been recog-
nized in this circuit, and Chen’s claim falls comfortably
within this theory of relief. Accordingly, remand is in
order to give the BIA “the first opportunity to pass judg-
ment on . . . [a] claim[] it previously ignored.” Hamdan
v. Mukasey, 528 F.3d 986, 992-93 (7th Cir. 2008). The
agency should consider “the totality of the circum-
stances . . . to determine whether harm suffered by
family members in combination with other factors may
constitute past persecution of the applicant, even if gov-
ernment authorities neither directly harmed the ap-
plicant nor harmed the family member in order to
target the applicant.” Jiang, 500 F.3d at 141.
There is another reason to return this case to the agency:
Chen also presented evidence that as a member of the hei
haizi—a child ineligible for registration on the hukou
because he was born in violation of China’s population-
control program—he has been and will continue to be
deprived of many fundamental rights and governmental
benefits. This evidence, he argued, both buttressed his
claim of persecution based on political opinion and estab-
lished a separate ground for relief based on persecution
because of his membership in a particular social group.
The BIA’s treatment of this claim, too, was incomplete.
No. 08-2836 15
The agency did not evaluate the cumulative significance
of these hardships when evaluating Chen’s claim of past
persecution (on political-opinion grounds or based on
his membership in a particular social group); nor
did the agency properly account for this evidence
in evaluating the reasonableness of his fear of future
persecution.
Many of the hardships Chen suffered as a hei haizi
and will continue to face if returned to China are
economic in nature. Because of his unlawful birth, Chen
and his family were subjected to severe financial dep-
rivation; this took the form of enormous fines—at his
birth and thereafter to allow him to attend school—as
well as the denial of the land and food allotment
permitted to lawfully born children. His father testified
via affidavit that as a result of these fines, the fam-
ily—already very poor—often went hungry. Chen sub-
mitted evidence that as an unregistered person, he is
denied access to government-provided higher educa-
tion, health care (except that which can obtained at high
cost on the black market), and many forms of employment.
It is well established that persecution can take the
form of economic deprivation as well as physical mis-
treatment, see, e.g., Yun Jian Zhang v. Gonzales, 495 F.3d
773, 777 (7th Cir. 2007); Tarraf v. Gonzales, 495 F.3d 525,
535 (7th Cir. 2007); a claim of persecution based on eco-
nomic deprivation generally requires a showing of a
“ ‘deliberate imposition of severe economic disadvantage
or the deprivation of liberty, food, housing, employment
or other essentials of life,’ ” Xiu Ling Chen v. Gonzales, 489
16 No. 08-2836
F.3d 861, 863 (7th Cir. 2007) (quoting In re T-Z-, 24 I. & N.
Dec. 163, 171 (BIA 2007) (emphasis removed in Xiu Ling
Chen)). This does not mean, however, that the alien
must establish a “total deprivation of livelihood on
account of his protected status.” Koval v. Gonzales, 418 F.3d
798, 805-06 (7th Cir. 2005) (internal quotation marks
omitted).
Considered in the aggregate, the economic hardships
imposed as a penalty for violation of China’s population-
control policy may, in appropriate cases, constitute perse-
cution. The Third Circuit has concluded as much in a
case involving a Chinese father of four who sought
asylum based on the economic deprivations his family
suffered because of their violation of China’s one-child
policy:
[W]hile Li’s family did not reach near-starvation
levels, we can fairly say that the economic restrictions
allegedly faced by the Li family were “severe.” In the
aggregate, a fine of more than a year and a half’s
salary; blacklisting from any government employ-
ment and from most other forms of legitimate em-
ployment; the loss of health benefits, school tuition,
and food rations; and the confiscation of household
furniture and appliances from a relatively poor
family constitute deliberate imposition of severe
economic disadvantage which could threaten his
family’s freedom if not their lives. Moreover, the
economic harm in Li’s case was deliberately imposed
as a form of punishment because of his violation of
China’s population control policy, rather than being
No. 08-2836 17
the result of “natural” economic downturns or gener-
ally harsh conditions shared by others in China. We
hold that, when viewed in the aggregate, Li’s allega-
tions amount to economic persecution.
Li v. Attorney General, 400 F.3d 157, 169 (3d Cir. 2005).
Beyond economic deprivations, Chen has presented
evidence that as a hei haizi he is deprived of other funda-
mental rights as well: He cannot acquire property or move
freely about the country, and may be denied the right
to marry and have children. We have often emphasized
the importance of evaluating the “cumulative signifi-
cance” of multiple claimed hardships in evaluating
asylum claims. See Kholyavskiy v. Mukasey, 540 F.3d 555,
571 (7th Cir. 2008). Here, however, the BIA dismissed
Chen’s claim of persecution based on his status as a hei
haizi by reference to a solitary piece of evidence—the
fact that Chen was able to obtain a passport and there-
fore “was given the right to travel by the Chinese gov-
ernment.” This is woefully inadequate. The BIA ignored
much of Chen’s evidence and never addressed his argu-
ment about the combined effect of the economic and
noneconomic deprivations he and his family have
suffered and that he contends he will continue to suffer
if returned to China. See Joshi v. Ashcroft, 389 F.3d 732, 736-
37 (7th Cir. 2004) (“A decision that resolves a critical
factual question without mention of the principal
evidence cannot be considered adequately reasoned.”).
We do not now conclude that the record compels a
conclusion that Chen suffered past persecution or has
an objectively reasonable fear of future persecution
18 No. 08-2836
based on imputed political opinion or membership in
his family or the hei haizi, or both. Because the BIA’s
analysis flowed from a misapprehension of the state of
this circuit’s caselaw and was otherwise incomplete,
these are matters for the BIA to address on remand, in
light of the principles we have explained here and based
on the totality of the evidence.
Accordingly, we G RANT the petition for review, V ACATE
the decision of the BIA, and R EMAND for further pro-
ceedings consistent with this opinion.
4-28-10