### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 1261
L ISHOU W ANG , Petitioner ,

v.

L ORETTA E. L YNCH , Attorney General of the United States , Respondent

.

____________________
Petition for Review of an Order of the Board of Immigration Appeals

. No. A 088

- 577

- 598

____________________
A RGUED A UGUST 4 , 2015

— D ECIDED O CTOBER 26, 2015

____________________

Before P OSNER , K ANNE , and H AMILTON , Circuit Judges

. K ANNE , Circuit Judge

. Lishou Wang, a 51

- year

- old Chinese citizen, petitions for review of the denial of his application s for asylum and withholding of removal based on his resistance to China’s coercive population

- control policy. An immigration judge found that W ang did not testify crediblyabout the crux of his claim, which involves a beating he suffered while struggling to prevent his wife from being forced2 No. 15

- 1261

to receive what he believed to be a steri lization procedure

. But the IJ misunderstood Wang’s testimony abo ut the nature of the procedure his wife ultimately received

— the implantation into her arm of a contraceptive device

. Further the IJ erred by concluding , al ternative ly, that Wang could not show past persecution because he resisted only his wife’s forced contraceptive implant as opposed to a forced abortion
or st erilization. We grant the petition and remand for fur ther proceedings.
I. B ACKGROUND
We recount the facts primarily from Wang’s testimony during his f inal removal hearing. In China Wang worked as

a farmer in a vil lage in the eastern province of Shandong . H e married in 1988 , and the following year his wife gave birth to a daughter. Three months later government officials required his wife to have an intr auterine device (“IUD”) implanted

. But five years later the IUD “fell off,” and she again got preg nant. Under government policy, though , too little time had passed since having their first child, so officials forced her to abort the pregnancy

. (Wang does not rely on this abortion for his asylum claim.) By 2000 , Wang and his wife were able to have another child, a son. The events at the heart of these pr oceedings occurred three months after their son’ s birth , when government officials went to their house and threatened to st erilize either Wang or his wife

. Wang protested and fought against the officials, who pushed him to the floor, kicked him, and beathim with batons until he passed out from “severe, excruciating pain” in his leg

. At some point he heard a neighbor telling the officials to stop befor e they killed him. Wang was taken to a hospital, where he learned that his foot was bro-No. 15

- 1261 3

ken. In the meantime official s had returned to his house and forced his wife to undergo a procedure in whic h a contra ceptive called “Norplant” was surgically inserted into her arm. 1 ( This procedure engendered considerable confusion at thehearing, as Wang first labeled it “tubal ligation” before clarifying that he meant the “birth control implant on my wife’s upper arm” or “skin implant .” ) His wife became ill from the implant, and the couple had no further children

. Nine years later Wang entered the United S tates on a three

- month business visitor’s visa that he had procured from a snake head. More than a year af ter his entry, he applied for asylum and withholding of removal, contendingthat he had been persecuted for resisting the government officials’ demands to sterilize him or his wife

. The Department of Homeland Security referred his application to an IJ and charged him with removability for overstaying his vi sa,

s ee 8 U.S .C. § 1227(a)(1)(B). Wang conceded the charge and renewed his requests for relief. 2 Wang supported his testimony with documents about the ordeal. He included an affidavit in which he described

1 According to an uncredited pamphlet in the record entitled “Facts About Norplant,” Norplant is the brand name of a contraceptive consisting of 6 small cap sules that are implanted under the skin of a

wom an’s upper arm and is 99% effective at prev enting p re gnancy for up to 5 years. The pamphlet warns that possible s ide effects of the drug include weight gain, headaches, heavy vaginal bleed ing, missed periods, stomach pain, chest pain, leg pain, trouble breathing, and pus or bleeding at the insertion area.

2 The IJ excused Wang’s failure to meet the one

- year deadline for filing his a sylum application, s ee 8 U.S.C. § 1158(a)(2)(B), (D), and the government has never challenged that determination

.4 No. 15

- 1261

how family

- planning officials beat him, broke his foot, and then sterilized his wife while he was in the hospital . He also submitted medical rec ords noting that he had suffered a “bone fracture” and that his wife had undergone “surgery by Nor plant device implantation.” Finally he added letters from his wife and mother

- in

- law describing the procedure as

“ [ s ] ubcutaneous ligation.” The IJ denied all relief. The IJ credited Wang’s testimony about his background, his family, and the circumstances of his departure from China, and acknowledged that Wang

“ could qualify for asylum based on past persecution if he showed that he resisted a c o ercive population program.” But the IJ did not cr edit Wang’s testimony about the incident with family

- planning officials. Instead, the IJ found “clear inconsistency” in Wang’s alternative characterizations of his wife’s procedure as both a forced tubal ligation and a forced implantation of a birth

- control device . These two procedures were so “markedly different,” explained the IJ, that there was “no reason to think” they “could be con fused in any way. ” And even if Wang w ere telling the truth about his wi fe forcibly receiving a contraceptive , the IJ continued in the alternative , he could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization. Final ly, the IJ added , Wang did not present sufficient corroboration to clarify his inconsistent testimony

. The Board upheld the IJ’s decision, finding the adverse credibility determination not clearly erroneous . It explained that the IJ was not required to accept Wang’s explanation for confusing tubal ligati on with a Norplant implantation , especially since the two procedures were “vastly different.” Without credible testimony, the Board concluded , Wang’sNo. 15

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documentary evidence was insufficient to meet his burden of proof for asylum or withholding of re moval. Th e Board declined to address the IJ’s alter native conclusion that Wang

c ould not qualify for asylum because he had not resisted a f orced abortion or sterilization

. I I

. A NALYSIS Because the Board affirmed the decision of the IJ and added its own reasoning, we review both decisions , s ee Khan v. Holder , 766 F.3d 689, 695 (7th Cir. 2014); Georgieva v. Holder , 751 F.3d 514, 519 (7th Cir. 2014) , bearing in mind that factualand credibility determinations must be supported by substantial evidence, see Tawuo v. Lyn ch , 799 F.3d 725, 727 (7th Cir. 2015) ; Liu v. Lynch , 788 F.3d 737, 741 (7th Cir. 2015), while legal conclusions are reviewed de novo, see Antia

- Perea v. Holder , 768 F.3d 647, 658

– 59 (7th Cir. 2014). A. Credibility Wang persuasively argues that the IJ’s credibility finding is flawed because the IJ mistook Wang’s innocent confusion

over the name of his wife’s medical pro cedure for a conclusion that it never occurred

. The IJ improperly discredited Wang’s testimony by relying solely on his mistaken labeling of the procedure as “tubal ligation” even though he consistently describ ed it as involving a “ skin implant” and “ birth control implant on my wife’s upper arm

. ” 3 T hroughout his testimony Wang explained that he understood the conse-

3 This confusion apparently was exacerbated by interpretation gl itches. For example, Wang first testified (through an interpreter) that the family

- planning officials had tried to force his wife to have a “vasectomy.” When the IJ pressed Wang to clarify, the interpreter interjected and acknowledged that she had erred an d meant to say “tubal ligation.”6 No. 15

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quence o f his wife’s procedure

— whether labeled a “tubal ligation” or a Norplant implantation

— to be her inability to conceive another child. Wan g emphasized that he thought of Norplant as the same as a “sterilization procedure” or “tubal ligation” because “in China , without certain identification, you cannot remove this im plant from your body.” Although tubal ligation is in fact different from a contraceptive implant, Wang said nothing at the hearing to suggest that he grasped the difference between the two procedures

. Consequently the IJ lacked substantial evidence to use Wang’s misunderstanding of the term “ tubal ligation” to discredit his uncontradicted testimony that family

- planning officials implant ed a contraceptive device in to his wife ’s arm.

B. Past Persecution Next Wang challenges the IJ’s alternative conclusion

— which the Board did not disturb

— that even if he credibly had testified about his wife ’s forced Norplant implantation , he could not demonstrate past persecu tion as described in 8 U.S.C. § 1101(a)(42) because he did not resist a f orced abortion or sterilization. T he IJ misconstrued th is statute

. U nder § 1101(a)(42), if Wang’s wife were forcibly sterilized or forced to have an abortion , she c ould establis h per se persecution on account of political opin ion. S ee Chen v. Holder , 604 F.3d 324, 331 (7th Cir. 2010)

. And in that case Wa ng could seek relief for himself if he had been harmed for resisting her sterilization or abortion

. See id. ; Jin v. Holder , 57 2 F.3d 392, 397 (7th Cir. 2009)

. But Wang also may seek relief if he suffered persecution for engaging in “other resistance to a coercive population control program , ” 8 U.S.C. § 1101(a)(42)

. Under this provision, the precise procedure that Wang’s wife underwent as part of that program is beside the point.No. 15

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China’s “coercive population control program” is not limited
to only forced abortions and steriliza tions ; it also forc es couples to use birth

- control measures such as condoms, pills, and I UDs

. See Population and Family Planning Law (P.R.C.) (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2001, effective Sept. 1, 2000 ) , reprinted in U.S. Dep’t of State, 2007 China Profile of Asy lum Claims & Country Conditions ; see also Chen v. Holde r , 737 F.3d 1084, 1089 (7th Cir. 2013). Wang’s claim that he was punished for opposing the efforts of family

- planning officials to enforce the population

- control program, either by sterilizing him or his wife or by implant ing a contraceptive device in to his wife’s

arm , thus falls within the protection of the statute.
On remand the Board must assess two matters in the first instance

. S ee Kone v. Holder , 620 F

. 3d 760, 763

– 64 (7th Cir. 2010) . First it must decide whether Wang’s attempted interference with the family

- planning officials , when they came to his house threatening to implement population

- control measures, qualifies as “other resistance

. ” S ee, e.g. , Cheng v. Att’y Gen. of U.S. , 623 F.3d 175, 190 (3d Cir. 2010) ( “other resistance” includes refusing to comply with demands to abort pregnancy, fleeing town to escape family

- planning officials, defying orders to undergo sterilization, frustrating officials’attempts to have IUD inserted, and missing multiple gynecological appointments); Matter of M

- F

- W

- & L

- G

- , 24 I. & N. Dec. 633, 638 (B.I.A. 2008) (resistance “must be assessed against the failures or refusals to comply with official demands to adhere to birth planning policies” and includesacts such as “removing an IUD or failing to attend a mandatory gynecological appointment”); cf. He v. Holder , 749 F.3d 792, 796 (9th Cir. 2014) (marrying underage, having children earlier than allowed, and paying partial fine for violating8 No. 15

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policy do not constitute the “overt” and “persistent defiance” required to qual ify as “other resistance”) . Second it must determine whether the harm Wang alleges to have suffered

— a beating that led to hospitalization and a broken foot

— amounts to persecution

. S ee, e.g. , Chen v. Holder , 705 F.3d 624, 629 (7th Cir. 2013) (persecution en compasses harm such as beatings, detention, arrest, interrogation, and imprisonment).
I II

. C ONCLUSION
We GRANT the petition for review and REMAND this case to the Board for further proceedings

.