United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 19, 2004
Charles R. Fulbruge III
No. 02-61098 Clerk
YUQING ZHU,
Petitioner,
VERSUS
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.*
DeMOSS, Circuit Judge.
Petitioner Yuqing Zhu is a native and citizen of China. She
entered the United States legally on a business visitor’s visa and
received various visa reclassifications and extensions until the
Immigration and Naturalization Service (“INS”) terminated her legal
status in April 2000. Zhu then applied for asylum and withholding
of removal and her case went before an Immigration Judge (“IJ”).
The IJ denied her petition. Zhu appealed to the Board of
Immigration Appeals (“BIA”). The BIA affirmed “without opinion,
*
Judge Garwood concurs in all except footnote 2.
1
the result of the decision below.” Zhu filed a timely petition for
review of the BIA decision and also filed with the BIA a motion to
reconsider. The BIA denied Zhu’s motion. She now appeals the
BIA’s affirmance without opinion of the IJ’s denial of her asylum
petition and request for withholding of removal. We vacate the
BIA’s decision and remand to the BIA.
BACKGROUND
Yuqing Zhu is a native and citizen of China. She entered the
United States legally in October 1997 on a business visitor’s visa.
Zhu received various visa reclassifications and extensions until
the INS terminated her legal status in April 2000.
Zhu applied for asylum in October 2000, after which the INS
referred her to an immigration court. The INS issued a notice to
appear in December 2000, in which Zhu was charged with a failure to
comply with the conditions of her visa. Zhu admitted to the
charges in the notice. In fact, it appears that it was because of
Zhu’s own honest indications to the INS that she was not employed
or a student sufficient to establish eligibility for a work or
student visa because she was busy raising her child that began the
process of terminating her legal status in the United States.
Based on her admissions, Zhu was ordered removable as charged. She
thereafter applied for asylum, withholding of removal, relief under
the Convention Against Torture (CAT), and, alternatively, for
voluntary departure.
2
In an affidavit attached to her application for asylum, Zhu
attested that she had an abortion in 1994. Zhu stated: “Although
I was not physically forced to do so, I had no real choice.” Zhu
explained that childbirth out of wedlock is illegal in China and
carries consequences. She described the abortion as traumatic.
An IJ held a hearing. Zhu testified to the following. In
1994, while living in China, in the province of Zhejiang, Zhu
became pregnant by her boyfriend. She was unmarried. She and her
boyfriend would not have been allowed to marry because she would
have been forced to undergo a medical examination. Zhu elected to
have an abortion because China’s family planning policies
prohibited single women from having children, and she would have
ended up in jail had she given birth. Zhu traveled to a remote
town where no one would recognize her to have the abortion. Zhu
feared being recognized because “this is a punishable matter.”
Zhu was three months’ pregnant when she had the abortion. Her
boyfriend made the arrangements. She was not given anesthesia for
the three-and-a-half-hour procedure, and she had to be held down.
Because of the pain, Zhu asked that the procedure be stopped. Zhu
saw the fetus, which was already formed, cut up and placed in the
trash.
Later, but while still in China, Zhu had a relationship with
a “Mr. Wong,” and she discovered he was married but he wanted to
continue the relationship. In September 1997, while still in
China, Zhu found out that she was pregnant again--this time by “Mr.
3
Wong.” Wong became angry about the pregnancy and wanted her to
have an abortion because he did not want any issues with his
family, friends, or political party. Zhu feared having an another
abortion because of her prior experience. Additionally, she had an
ovary removed in 1997 and was concerned that an abortion would
affect her health.
Zhu believed that Chinese law required her to abort the child.
She also believed that had she stayed in China she would have been
denied medical treatment and would have been forcibly sterilized.
She also believed she would lose her job with its benefits and her
housing. Were she to have the child, the child would not have been
recognized as a citizen and, therefore, would have been refused
admission to school and medical treatment. Zhu decided to try to
come to the United States where she could have the baby.
Through her work, Zhu requested the opportunity to study in
the United States and because she scored well on her employer’s
testing she was granted the opportunity. Zhu entered the United
States on a business visitor’s visa in October 1997 with three
months’ authorized stay. Zhu extended her business visitor’s visa
for six months, then received student and work visas. Her daughter
was born in the United States in May 1998. Zhu, however, did not
work after June 1999 because her daughter’s health was not good at
that time. Zhu did not file her asylum application within one year
of her arrival in the United States because she was busy studying
and caring for her child and her legal visa status kept getting
4
extended. When her legal status was terminated in April 2000, it
appears Zhu contacted several attorneys and looked into applying
for asylum and ultimately applied by October 2000.
On cross-examination, Zhu testified that on her application
for asylum she stated that she did not know anyone in the United
States when she arrived but that Jiang Wang, the father of her
child, was living in the United States.1 Zhu maintained that she
had not seen Wang since coming to the United States and that he had
not given her any money. Zhu testified that upon her arrival in
the United States she moved in with Chen Fen Wang, a different
person. Zhu listed on an INS form relative to her status as a
student that her means of financial support while a student was
from “Friend/Jun Wang.” Zhu testified that she never accepted
money from Jiang Wang, the child’s father, and that she paid for
her schooling herself.
Zhu introduced into evidence a newspaper article relative to
China’s family planning policy. On cross-examination it was
brought out that the Chinese official quoted in the article stated
that there is no forced abortion in China and that children born
out of wedlock are not discriminated against by officials, but that
the woman are ridiculed and scorned for what is considered their
selfish and irresponsible act of getting pregnant.
The INS submitted reports and articles on the conditions in
1
Jiang Wang’s name was misspelled as “Wong” earlier in the
hearing.
5
China. Included was a “1999 Department of State Country Report on
Human Rights Practices for China,” which stated the following.
“Unmarried women cannot get permission to have a child.”
“Population control policy relies on education, propaganda, and
economic incentives, as well as on more coercive measures,
including psychological pressure and economic penalties.” People
who comply with China’s family planning regulations receive
financial rewards such as monthly stipends, preferential medical
and educational benefits, and old-age insurance. The penalties for
violating the family planning regulations include fines,
withholding of social services, or other administrative punishments
that sometimes result in the loss of employment. In the province
of Zhejiang, where Zhu was from, violators are assessed a fine of
20 percent of the parents’ salary, assessed over five years. The
report further stated that “[c]entral government policy formally
prohibits the use of force to compel persons to submit to abortion
or sterilization,” although there were some documented instances in
which family planning officials used coercion, including forced
abortion and sterilization, to meet family planning goals. The
report stated that during an unauthorized pregnancy a woman may be
visited by family planning workers and pressured to terminate the
pregnancy.
The IJ determined that Zhu was removable as charged. In
reaching its decision, it is not clear what the IJ relied on; but
it appears the IJ considered Zhu’s application, her testimony, the
6
country reports submitted by the INS, and the IJ’s own personal
feelings about out-of-wedlock pregnancies and unwed motherhood.
The IJ considered Zhu’s application for asylum contemporaneously as
an application for withholding of removal.
The IJ found Zhu to be credible, stating that her “testimony
generally tracked most of the information that she presented with
her application for political asylum.” The IJ also noted, however,
that Zhu’s credibility was clouded because she revealed only under
cross-examination that the father of her child was in the United
States.
The IJ determined as an initial matter that Zhu’s application
for asylum was untimely because she had one year from her arrival
in the United States to file it. The IJ noted that the regulations
had changed to permit Zhu to file the application within a
“reasonable” amount of time from her arrival if she could show
extraordinary circumstances. The IJ determined Zhu’s application
was not filed in a reasonable amount of time given that Zhu’s
authorization to stay in the United Sates was adjusted several
times and that she waited more than six months after the INS denied
her last request for an extension to file the application. The IJ
held this despite the fact that Zhu had apparently spent those six
months attempting to find legal help to assist her in her
application for asylum. The IJ observed that Zhu’s application was
filed three years after her arrival in the United States. The IJ
then stated, without giving any support, that he considered 60 days
7
to be a reasonable time within which to file for asylum. Finally
the IJ concluded that:
[T]his lady [referring presumably to Ms. Zhu] came to the
United States to seek refuge. She instead applied for a
number of extensions and adjustment of status, but
claimed that she was too busy with taking care of her
child or with her work or with her school. The Court
does not find that to be a reasonable explanation of her
real purpose of coming to the United States.
The IJ then stated that “[e]ven assuming that the respondent did,
in fact, file the application for political asylum within a
‘reasonable amount of time,’” Zhu failed to establish eligibility
for political asylum in the United States. The IJ also noted that
rather than being persecuted Zhu “had two extramarital
relationships in China with two different men at two different
times.”
The IJ then addressed whether Zhu had been persecuted in the
past. Despite the IJ’s statement that Zhu was credible, the IJ
concluded she had not been persecuted. The IJ noted that Zhu had
an abortion by choice. The IJ stated: “She voluntarily went to
have the abortion upon the belief that she need[ed] to abide by the
law and that she had no way out, other than having an abortion.”
The IJ determined that Zhu’s second pregnancy did not indicate past
persecution in China as no one forcibly acted on Zhu in connection
with that pregnancy.
Next, the IJ addressed whether Zhu would be subject to
persecution if she returned to China. The IJ concluded that if Zhu
were to return to China with her daughter, there was not enough
8
evidence to conclude that the child would not receive the same
benefits as other children born to parents in China. The IJ noted
that forced abortion and sterilization in China “have diminished,
especially in rural areas.” The IJ further noted that there was
nothing that prevented Zhu from moving to another part of China to
start a new life with her child or prevented Zhu from returning to
China and living a transient life as a street person or part of a
“floating population” and therefore evading authorities and any
possible persecution. Again, it is not clear where the IJ got the
information on which to make his decision that Zhu could relocate
or live a transient life. Likewise, it is not clear why the IJ
reached the question of whether Zhu would be subject to future
persecution considering the IJ apparently determined she was not
persecuted in the past. Additionally, it is equally unknown why
the IJ addressed the possibility of relocation when such an issue
only comes up if the respondent can prove the applicant can avoid
future persecution by relocating. In this case there is no issue
of relocation because Zhu’s claim is based on China’s national
population control policy and not some local persecution. Further,
the IJ’s suggestion that Zhu join a group of people living in
China’s “floating population” to avoid persecution is desultory.
The IJ concluded that “there is nothing even close to
persecution in this case. There is nothing close to even the
change in the law regarding forced abortion and forced
sterilization in Chinese cases.” The IJ stated that, even
9
disregarding Zhu’s failure to mention that the father of her child
lived in the United States, this was not a case of well-founded
fear of persecution. He therefore denied Zhu’s applications for
asylum and withholding of removal. In conclusion, rather than
addressing the legal issues, the IJ summed up his feelings about
Zhu by stating:
She already had a relationship resulting in a pregnancy
and abortion in 1994. She chose to do it again, for
whatever reason, in 1997. She is not a young
inexperienced person. She has to take responsibility for
her own personal choices and her personal choice of
having a child. She is the mother of this child and she
needs to take care of her and take along the risk of
having the child.2
The IJ further determined that, because Zhu failed to show
that she was “tortured” in China within the meaning of the CAT, she
was not entitled to withholding of removal under the CAT. The IJ
granted Zhu voluntary departure with an alternate order of removal
to China.
Zhu appealed to the BIA. On December 9, 2002, the BIA
affirmed “without opinion, the result of the decision below.”
Citing 8 C.F.R. § 3.1(e)(4).3 Zhu filed a timely petition for
review of the BIA decision on December 19, 2002. Zhu also filed
2
As this moralistic comment indicates, we pause to note the
highly inappropriate and facially sexist commentary by the IJ that
is pervasive in his opinion and often is substituted for what
should have been a thorough legal analysis of Ms. Zhu’s asylum
petition.
3
8 C.F.R. § 3.1(e)(4) has been recodified as 8 C.F.R.
§ 1003.1(e)(4).
10
with the BIA a motion to reconsider. The BIA denied Zhu’s motion.
She has not filed a petition for review of that decision.
DISCUSSION
An alien is required to file an application for asylum within
one year after the date of the alien’s arrival in the United
States. 8 U.S.C. § 1158(a)(2)(B). Section 1158(a)(2)(D) excuses
an alien’s delay in filing an application if the alien demonstrates
“either the existence of changed circumstances which materially
affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay.” Id. § 1158(a)(2)(D).
Section 1158(a)(3) provides that “[n]o court shall have
jurisdiction” to review a determination by the Attorney General
that an application is untimely. Id. § 1158(a)(3).
Zhu argues that the BIA’s affirmance without an opinion leaves
unclear whether the BIA affirmed the IJ’s denial of her application
for asylum because it deemed her application untimely and
ineligible for the exceptions that Zhu argued or because the BIA
rejected the merits of the asylum application and affirmed without
opinion because the IJ’s error, if any, on the timeliness issue was
deemed “harmless or nonmaterial.”4 This Circuit has not yet
4
8 C.F.R. § 1003.1(e)(4) provides:
(i) The Board member to whom a case is assigned shall affirm
the decision of the Service or the immigration judge, without
opinion, if the Board member determines that the result
reached in the decision under review was correct; that any
errors in the decision under review were harmless or
nonmaterial; and that
11
explicitly addressed whether it has jurisdiction to review a BIA
board member’s decision to affirm without opinion according to the
procedure outlined in 8 C.F.R. § 1003.1(e)(4). Three unpublished
decisions indicate that this Court has jurisdiction to review
the BIA’s decision to affirm without opinion. See Dika v.
Ashcroft, No. 03-60220, 2004 WL 34814, at *1 (5th Cir. Jan. 6,
2004) (unpublished); Turrbiartes-Vitales v. Ashcroft, No. 02-60932,
slip op. at 2-3 (5th Cir. Sept. 19, 2003) (unpublished); Patel v.
Ashcroft, No. 02-60683, 2003 WL 21754959, at *1 (5th Cir. July 30,
2003) (unpublished); see also 5TH CIR. R. 47.5.4 (stating that while
not controlling, an unpublished opinion may be persuasive
authority). One published opinion addresses the issue, but then
fails to articulate any decision on reviewability. See Garcia-
Melendez v. Ashcroft, 351 F.3d 657, 662-63 (5th Cir. 2003)
(reviewing the underlining IJ decision and finding no error).
Additionally, other circuits have exercised jurisdiction to review
the BIA’s decision to affirm without opinion. See, e.g., Batalova
v. Ashcroft, 355 F.3d 1246, 1252-53 (10th Cir. 2004); Haoud v.
Ashcroft, 350 F.3d 201, 205-06 (1st Cir. 2003); Falcon Carriche v.
(A) The issues on appeal are squarely controlled by existing
Board or federal court precedent and do not involve the
application of precedent to a novel fact situation; or
(B) The factual and legal issues raised on appeal are not so
substantial that the case warrants the issuance of a written
opinion in the case.
8 C.F.R. § 1003.1(e)(4)(i)(A)-(B).
12
Ashcroft, 350 F.3d 845, 855 (9th Cir. 2003). One circuit has held
that the BIA’s decision to affirm without opinion is generally not
reviewable. See Ngure v. Ashcroft, 367 F.3d 975, 980-88 (8th Cir.
2004) (interpreting and limiting the Hauod holding, within the
Eighth Circuit, to permit “judicial review of the decision to
streamline only in a narrow species of cases, namely, those in
which there is both a reviewable and a non-reviewable basis for the
IJ’s decision and a new development in the law that may have
undermined the reasoning of the IJ on the reviewable issue”).
In this case there is a jurisdictional conundrum; that is,
this Court has no way of knowing whether the BIA affirmed the IJ’s
decision on a non-reviewable basis, i.e., untimeliness, or a
reviewable basis, i.e., the merits of Zhu’s asylum claim.
Accordingly, the decision of the BIA is vacated and the case
remanded to the BIA for an opinion addressing Zhu’s petition.
By vacating and remanding in this case, we make no decision as
to the constitutionality of the BIA’s affirmance without opinion
process; the process has already been found constitutional by this
Circuit. See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir.
2003). We also note as other circuits have that the BIA is
accorded discretion as an agency and is free to use its affirmance
without opinion procedure, but we are equally free to vacate and
remand when we simply cannot determine based upon a review of the
IJ’s decision why the applicant was denied relief.
Additionally, it is important to note that this case is being
13
remanded with several significant issues needing resolution. To
that end, should the BIA decide upon remand that Zhu’s application
for asylum was timely or her untimeliness is excused, the merits of
her asylum application should be addressed. Most significantly,
“forced” under 8 U.S.C. § 1101(a)(42) needs to be defined and
whether Zhu meets such definition and therefore can be considered
to have suffered past persecution needs to be determined.5 If
unsatisfied with the BIA’s resolution, Zhu can appeal. If,
however, the BIA finds Zhu’s application to be timely but decides
not to address the merits of her claim and merely affirms the IJ’s
decision, then Zhu can appeal such a decision to this Court and
this Court will then review the IJ's decision as the final agency
determination concerning the merits of her claim. See Soadjede,
324 F.3d at 831-32. Further, even if the BIA determines that Zhu’s
5
Refugees are granted asylum if they can establish past
persecution or a reasonable fear of future persecution based upon
race, religion, nationality, membership in a particular social
group, or political opinion. Lopez-Gomez v. Ashcroft, 263 F.3d
442, 444-45 (5th Cir. 2001). Zhu’s argument relies on the
definition of a “refugee” for purposes of asylum applications,
which states that "a person who has been forced to abort a
pregnancy or to undergo involuntary sterilization . . . shall be
deemed to have been persecuted on account of political opinion."
8 U.S.C. § 1101(a)(42); see also Ma v. Ashcroft, 361 F.3d 553 (9th
Cir 2004) (interpreting 8 U.S.C. § 1101(a)(42) and holding that
male asylum applicant could establish persecution by the forced
abortion of his child despite the fact that he was not yet married
to the woman whose pregnancy had been terminated because he was too
young to marry under Chinese law); H.R. REP. NO. 104-469, pt. 1, at
77, 173-74 (1996) (outlining the legislative history of 8 U.S.C. §
1101(a)(42), which was adopted to address the issues concerning
applicants who had been subjected to China’s population control
policies). The statute, however, does not define “forced.”
14
application for asylum was not timely filed, the issue of whether
Zhu was eligible for withholding of removal remains because there
is no time bar in seeking withholding of removal. See 8 U.S.C. §
1231(b)(3)(A). Again, here some similar but not identical unsolved
issues should be addressed by the BIA on remand, most importantly
whether Zhu has suffered past persecution6 or if she has a well-
founded fear of future persecution.7 The BIA, utilizing its
6
The Attorney General "may not remove an alien to a country if
the Attorney General decides that the alien's life or freedom would
be threatened in that country because of the alien's race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. § 1231(b)(3)(A). The alien bears the
burden of showing a "'clear probability' that he or she will be
persecuted if deported." Mikhael v. INS, 115 F.3d 299, 306 (5th
Cir. 1997) (citation omitted). "'[C]lear probability' is
equivalent to a showing that 'it is more likely than not that the
alien would be subject to persecution on one of the specified
grounds.'" Bahramnia v. INS, 782 F.2d 1243, 1247 (5th Cir. 1986)
(quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)). This
standard requires a higher objective likelihood of persecution than
that required to establish eligibility for asylum. Faddoul v. INS,
37 F.3d 185, 188 (5th Cir. 1994). An alien who has demonstrated
that she has suffered past persecution is presumed to have a
well-founded fear of future persecution for the reasons that she
was initially persecuted. 8 C.F.R. § 208.13(b)(1),(2). This
presumption is rebutted when the INS establishes by a preponderance
of the evidence that there has been "a fundamental change in
circumstances" in the alien's native country. Id. §
208.13(b)(1)(i)(A)-(B). If an alien’s fear of persecution is
unrelated to the past persecution, the alien “bears the burden of
establishing by a preponderance of the evidence” that he or she
would suffer future persecution. Id. § 208.13(b)(1)(i)(B)(ii).
7
Zhu argues that the BIA has repeatedly held that persecution
in the form of forced abortion or sterilization creates a
presumption of a well-founded fear of persecution for purposes of
asylum, and simultaneously meets the higher probability required
for withholding of removal. See, e.g., Matter of X- G- W-, 22 I.
& N. Dec. 71 (BIA 1998); Matter of C- Y- Z-, 21 I. & N. Dec. 915
(BIA 1997); Matter of X- P- T-, 21 I. & N. Dec. 634 (BIA 1996). In
these opinions the BIA found that abortion or sterilization had
15
expertise as an agency skilled in making such evaluations, can
address these issues and, if unsatisfied, Zhu can appeal. If the
BIA decides not to address the withholding of removal claim, then
the IJ’s decision is a final agency determination subject to review
again in this Court. In other words, we are neither deciding the
merits of Zhu’s claim nor prohibiting her from pursuing the merits
of her claim at some later date.
CONCLUSION
Having carefully reviewed the record of this case, the
parties’ respective briefing and arguments, for the reasons set
forth above, we vacate the decision of the BIA and remand with
instructions to the BIA for an opinion addressing Zhu’s
application.
VACATED AND REMANDED.
been forced or coerced without discussing how and, therefore,
granted both asylum and withholding of removal. In X-P-T-, the BIA
stated that “the population control-based persecution language of
[8 U.S.C. § 1101(a)(42)] applies to all relevant determinations
under the [Immigration and Nationality] Act, not just asylum
determinations.” 21 I. & N. Dec. at 637-38. Thus, the BIA
determined that an alien whose forced sterilization was uncontested
established past persecution on the basis of political opinion for
purposes of withholding of removal. Id.
16