Petition for Review of an Order of the Board of Immigration Appeals. No. A095-673-283.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before ROVNER, WOOD, and SYKES, Circuit Judges.
Shi Chen is a native of China who as the fifth child in his family was born in severe violation 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.
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-provided 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 continued 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 resistance 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 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 automatically entitleChen 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 evaluating Chen's fear of future persecution.
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. BUREAU OF DEMOCRACY, HUMAN RIGHTS & LABOR, U.S. DEPARTMENT OF STATE, CHINA:
PROFILE OF ASYLUM CLAIMS AND COUNTRY CONDITIONS 21
(Oct. 2005) ("2005 COUNTRY REPORT"). 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 compensation" fees-as well as other consequences for the parents, including job loss or demotion, imprisonment 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 members to the rights of full citizenship. Children born unlawfully are known as the hei haizi (meaning "black children") and are ineligible for registration on the hukou. IMMIGRATION & NATURALIZATION SERVICE, U.S. DEPART- MENT OF JUSTICE, PERSPECTIVE SERIES: CHINESE STATE BIRTH PLANNING IN THE 1990S AND BEYOND 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 COUNTRY REPORT, 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 income as a penalty for his unlawful birth. They had to give away one of his sisters shortly after she was born because they ...