The BIA’s analysis of the respondent’s asylum claim was incomplete. The BIA failed to address the respondent’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. Even though the respondent’s mother’s forcible sterilization does not automatically entitle him to a finding of past persecution, 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 the respondent and his family—and the future hardships he would face if returned—when evaluating the respondent’s fear of future persecution. This court therefore grants the petition for review and remand to the BIA for further proceedings.
Where the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, this court reviews the BIA’s decision. The BIA’s legal conclusions are reviewed de novo. This court will uphold the BIA’s factual findings so long as they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Under this deferential standard of review, reversal is warranted only if the evidence compels a different result; this court will not overturn the BIA’s findings simply because this court might have decided the case differently. On the other hand, remand may be warranted when the BIA overlooks key aspects of an asylum-seeker’s claim and might reach a different conclusion after a more complete evaluation of the record.
The Attorney General has discretion to grant an alien asylum under the Immigration and Nationality Act if the alien qualifies as a refugee. 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. A showing of past persecution will trigger a rebuttable presumption that the alien has a well-founded fear of future persecution. Even if an alien cannot show he has been subject to past persecution, he may nevertheless be eligible for asylum if he has a well-founded fear of future persecution. This requires the alien to show that his fear of persecution is both subjectively genuine and objectively reasonable. 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.
The statute at 8 U.S.C. § 1101(a)(42)(B) creates four classes of refugees: (1) those who have been forced to have an abortion or who have been involuntarily sterilized; (2) those who have been persecuted for failing or refusing a coerced abortion or sterilization 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. The Attorney General has concluded in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) that only those who have themselves been forced to have an abortion or have been involuntarily sterilized fall into the first class of refugees. In Matter of J-S-, it was held that an asylum-seeker whose spouse has suffered a forced abortion or sterilization is not per se eligible for asylum. Rather, the applicant must show that he or she personally suffered or will suffer persecution for resisting a coercive population-control program. 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 applicant’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.
The Attorney General’s interpretation of 8 U.S.C. § 1101(a)(42)(B) in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the rationale applies with equal force to the claim of an asylum-seeker like the respondent whose parent has been forced to have an abortion or undergo sterilization.
The respondent does not fall into the first category of refugees created by 8 U.S.C. § 1101(a)(42)(B), therefore, under the rationale of Matter of J-S-, the respondent is not automatically eligible for asylum on the basis that his mother was sterilized against her will. Nor does the respondent fall into the second class of refugees as 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 8 U.S.C. § 1101(a)(42)(B)—those who have a well-founded fear of involuntary sterilization (forced abortion obviously is not at issue in the instant case as the respondent is a male), or those who fear persecution for refusing sterilization or otherwise resisting a coercive population-control program.
Where the respondent has consistently argued that he fears he will be involuntarily sterilized and otherwise persecuted because of his and his family’s violation of China’s one child policy, his claim is based partly on a theory of imputed political opinion. The BIA’s rejection of this argument on the basis of a perceived lack of circuit precedent to support it is an error of law. It is well established in the Seventh 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. 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 attributed opinion motivated or will motivate the persecution.
The Second and Ninth Circuits have recognized that an asylum claim alleging persecution for resistance to a coercive population-control program under 8 U.S.C. § 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. This is a specific application of the more general imputed political-opinion theory—already established in the Seventh Circuit—and this court will therefore follow the lead of these circuits in recognizing it in the instant case.
The respondent 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 persistent 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 involuntarily 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 result of their extreme resistance to China’s one-child policy.
Where the BIA summarily rejected the imputed political-opinion basis of the respondent’s claim without analysis, having erroneously concluded that “current caselaw” in this circuit did not support it, and where the concept of persecution based on imputed political opinion has actually long been recognized in this circuit, and the respondent’s claim falls comfortably within this theory of relief, remand is in order to give the BIA the first opportunity to pass judgment on a claim it previously ignored. The BIA should consider the totality of the circumstances to determine whether harm suffered by family members in combination with other factors may constitute past persecution of the applicant, even if government authorities neither directly harmed the applicant nor harmed the family member in order to target the applicant.
There is another reason to return this case to the BIA: the respondent 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. Many of the hardships the respondent suffered as a hei haizi and will continue to face if returned to China are economic in nature. Because of his unlawful birth, the respondent and his family were subjected to severe financial deprivation; 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 family—already very poor—often went hungry. The respondent submitted evidence that as an unregistered person, he is denied access to government-provided higher education, health care (except that which can obtained at high cost on the black market), and many forms of employment. Where the BIA 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), and where the BIA did not properly account for this evidence in evaluating the reasonableness of his fear of future persecution, its treatment of this claim, too, was incomplete.
It is well established that persecution can take the form of economic deprivation as well as physical mistreatment; a claim of persecution based on economic 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. This does not mean, however, that the alien must establish a total deprivation of livelihood on account of his protected status. Considered in the aggregate, the economic hardships imposed as a penalty for violation of China’s population control policy may, in appropriate cases, constitute persecution.
Beyond economic deprivations, the respondent has presented evidence that as a hei haizi he is deprived of other fundamental rights as well: He cannot acquire property or move freely about the country, and may be denied the right to marry and have children. This court has often emphasized the importance of evaluating the “cumulative significance” of multiple claimed hardships in evaluating asylum claims. Where the BIA dismissed the respondent’s claim of persecution based on his status as a hei haizi by reference to a solitary piece of evidence—the fact that the respondent was able to obtain a passport and therefore “was given the right to travel by the Chinese government,” and where the BIA ignored much of the respondent’s evidence and never addressed his argument 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, its treatment of the claim is woefully inadequate.
This court does not conclude that the record compels a conclusion that the respondent suffered past persecution or has an objectively reasonable fear of future persecution 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, this court grants the petition for review, vacates the decision of the BIA, and remands for further proceedings consistent with this opinion.
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