In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3511

QIU PING LI,

Petitioner,

v.

ERIC H. HOLDER, 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

ARGUED JUNE 9, 2009—DECIDED JULY 15, 2010

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

POSNER, 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 argument 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 subjected 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 pregnancy 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 window. 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 porridge. 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 credibility. 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 combined with considerable fine rise to the level of persecution.” 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 sufficient evidence regarding the fine to establish persecution,” 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 discretion. 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 questioned her credibility—family-planning officers subjected 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 petitioner] 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 mistreated 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 mistreatment. (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