In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3511
Q IU P ING L I,
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. A 97 391 066
A RGUED JUNE 9, 2009—D ECIDED JULY 15, 2010
Before P OSNER, W OOD , and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. The petitioner seeks judicial
review of the denial by the Board of Immigration Appeals
of her motion to reconsider the Board’s order denying
her application for asylum. She hadn’t sought review of
that order, and the time for seeking review of it is long
past, yet her brief argues only the invalidity of that order;
it does not touch on the merits of the order actually under
review, the order denying reconsideration. But neither
2 No. 09-3511
does the Board in its brief argue that the petitioner
has waived or forfeited her challenge to the denial of
reconsideration; it argues merely that the challenge
lacks merit. The Board thus waived waiver. At oral argu-
ment we asked the lawyers to address the soundness of
the denial of the motion for reconsideration, and they
did so. The issue thus is both properly before us and
ripe for decision. Torzala v. United States, 545 F.3d 517,
522 (7th Cir. 2008); Badwan v. Gonzales, 494 F.3d 566, 571
(6th Cir. 2007); Zhong v. Gonzales, 461 F.3d 101, 121 (2d
Cir. 2006).
The petitioner is from Fujian province, where China’s
“one-child” policy is vigorously enforced. Her mother
had been fined for violating the policy and later sub-
jected to forced sterilization. The petitioner opposed the
policy too, and so when notified in 2002, when she
turned 18, to report for her first required periodic preg-
nancy test (a measure employed by the family-planning
authorities to enforce the one-child policy), she ignored
the notice. Five family-planning officers came to her
house to find out why she hadn’t shown up for the
test. She told them the reason was her opposition to the
one-child policy. The officers responded by forcibly
removing her to the family-planning office, and when
she refused to provide a urine sample there the staff
yanked down her pants and forced or tried to force
urine from her. What exactly they did and whether
they succeeded in obtaining urine is unclear.
The following year, while the petitioner was staying
with a cousin who was pregnant with a second child, the
No. 09-3511 3
cousin received a notice to appear at the family-planning
office for an examination. She ignored the notice because
she was afraid she’d be forced to have an abortion. So
when family-planning officers came to her house to
bring her in for the examination, the petitioner tried to
block them from entering, while her cousin hid in
the bathroom. By the time the officers had forced an
entrance the cousin had fled through the bathroom win-
dow. So the officers took the petitioner into custody
instead, and kept her in jail for three days. During her
stay in jail she was given no bed to sleep on and the
only food she was given was one serving a day of por-
ridge. The porridge made her sick to her stomach and
she was later diagnosed as suffering from gastritis,
which the immigration judge found had been caused
by the porridge.
The petitioner’s mother paid 5,000 yuan—about a third
of the petitioner’s annual salary—to get her released from
jail. The government’s brief describes this as “bail,” and
we’ll accept the characterization. Her family decided
she’d better leave the country, so she fled to the United
States, possibly on a forged passport, though this is
unclear, and asked for asylum. Her cousin remains in
hiding in China, and family-planning officers visit the
petitioner’s parents from time to time to inquire about
the petitioner’s whereabouts.
The immigration judge denied the petition for asylum
in part because of doubts about the petitioner’s credi-
bility. But in dismissing her appeal the Board “decline[d]
to address credibility,” ruling that even if her testimony
4 No. 09-3511
(summarized above) was true, she had not proved that
she’d been persecuted, or had a well-founded fear of
being persecuted if she is returned to China. The Board
said she had “never provided a urine sample and, thus,
never officially complied with the family planning’s
request to submit to a pregnancy test. Significantly, [she]
was never threatened, detained, physically harmed, or
threatened with such harm as a result of her failure
to comply as directed.” Moreover, she had “failed to
demonstrate that, because she failed to provide a urine
sample or aided her cousin in avoiding detection by
family planning officials, she was targeted for harm
because she acted in a manner that would constitute
‘resistance’ or opposition to a coercive family control
program. Thus, [she] did not suffer past persecution in
China on account of a protected ground.” And it was
unlikely that she would be persecuted if she returned to
China, because her conflicts with the family planners
were “fairly remote, 2002 and 2003, and it does not
appear that [she] injured or provoked any officers.” The
Board did not mention that she was a bail jumper.
In moving for reconsideration, the petitioner pointed
out that the Board had overlooked “her other resistance
to coercive population control program when she
assisted her cousin to escape and for which she was
detained for three days” and had “failed to discuss
whether three day detention and mistreatment com-
bined with considerable fine rise to the level of persecu-
tion.” In denying the motion the Board said that it
had “considered and addressed these claims. We find no
merit in the assertion that we overlooked these facts.
No. 09-3511 5
The [petitioner] has not demonstrated mistreatment
amounting to persecution.” Nor had she “offered suf-
ficient evidence regarding the fine to establish persecu-
tion,” because “the record contains scant information
concerning [her] financial situation.” In short, “she
has not demonstrated an error in fact or law in our
prior decision to warrant reconsideration.” The Board
did not address the likelihood that the petitioner would
be persecuted if she returned to China.
The denial of a motion to reconsider an order denying
asylum is judicially reviewable, Raghunathan v. Holder,
604 F.3d 371, 376 (7th Cir. 2010); Averianova v. Holder,
592 F.3d 931, 935 (8th Cir. 2010); see Kucana v. Holder, 130
S. Ct. 827 (2010), and is reversible for an abuse of discre-
tion. Raghunathan v. Holder, supra, 604 F.3d at 376; Liu
v. Mukasey, 553 F.3d 37, 40 (1st Cir. 2009); Aliyev v.
Mukasey, 549 F.3d 111, 115-16 (2d Cir. 2008). Such an
abuse is shown when, the petitioner having identified a
serious error in the Board’s decision denying asylum,
the Board denies reconsideration without appearing to
have noticed the error. Id. at 118-19; Iglesias v. Mukasey,
540 F.3d 528, 531 (7th Cir. 2008); Gomes v. Gonzales,
473 F.3d 746, 756-57 (7th Cir. 2007); Narine v. Holder,
559 F.3d 246, 249 (4th Cir. 2009); Yeghiazaryan v. Gonzales,
439 F.3d 994, 1000 (9th Cir. 2006).
The order denying asylum had stated that the petitioner
had never given a urine sample. But if her testimony
is believed—and remember that the Board has not ques-
tioned her credibility—family-planning officers sub-
jected her to physical force in an effort to obtain urine.
6 No. 09-3511
We don’t know whether they succeeded (the Board said
they hadn’t, but it is unclear what that finding was
based on), but that is irrelevant; the objection is to the
application of force.
The original order had not mentioned the petitioner’s
three-day detention. It does state that she “was never . . .
detained . . . as a result of her failure to comply as directed”
(emphasis added), which may mean that she wasn’t
detained because of her refusal to give a urine sample
voluntarily as it were, but for some other reason. But
the next sentence states that she was not “targeted for
harm” because of either that refusal or her helping her
cousin evade the one-child policy—yet the detention,
the unhealthy conditions of the detention, and the
fine (none of which is mentioned) amounted not just to
targeting her for harm, but to hitting the target. The
statement in the Board’s brief that “although [the peti-
tioner] argues that her three-day detention amounts to
past persecution, the Board did not abuse its discretion
in reaffirming its holding that such treatment, while
unpleasant, does not amount to persecution” is false. The
order denying asylum did not mention the detention,
let alone characterize it as merely “unpleasant.”
Granted, there is a difference between opposing a
policy, and the tactics to which one resorts in opposing
it. See Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004);
Chanco v. INS, 82 F.3d 298, 302 (9th Cir. 1996). However
abhorrent China’s one-child policy may be, it would not
be persecution for China to have jailed the petitioner
had she assaulted the family-planning officers when they
No. 09-3511 7
brought her in to give a urine sample or when they
forced an entrance to her cousin’s house. See Guchshenkov
v. Ashcroft, 366 F.3d 554, 559 (7th Cir. 2004); Cruz-Samayoa
v. Holder, No. 09-3824, 2010 WL 2499423, at *5-6 (6th
Cir. June 21, 2010); Xun Li v. Holder, 559 F.3d 1096, 1108
(9th Cir. 2009). But according to the Board, on neither
occasion did she so much as “provoke” them. Nor did
the Board suggest that her opposition tactics justified
the treatment meted out to her by the family-planning
authorities. So far as appears, the reason she was mis-
treated was her opposition to the one-child policy, rather
than her recourse to methods of opposition that would
have provided an independent justification for the mis-
treatment. (On the distinction, see Shardar v. Ashcroft, supra,
382 F.3d at 323; Cruz-Samayoa v. Holder, supra, at *7.) The
Board’s only grounds for denying asylum were that the
authorities’ treatment of her was not severe enough to
amount to persecution and that she has nothing to fear
from them if she is returned to China.
Whether in China’s prudish culture the pulling down
of an 18-year-old girl’s pants by officers who were using
force to try to extract urine from her, jailing her until
her family paid a fine equal to a third of her year’s wages,
and feeding her tainted food in the jail amounted to
persecution is an issue in the first instance for the Board
to decide. So far as we can determine from its orders, it
has yet to decide it. First it overlooked the critical facts,
and then it unconvincingly denied having overlooked
them. The petition for review is therefore granted, the
denial of the motion to reconsider is vacated, and the
8 No. 09-3511
case is returned to the Board for further proceedings
consistent with this opinion.
7-15-10