United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

(Argued June 14, 2005)

Decided October 24, 2005

Before

Hon. DIANE P. WOOD, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 04-1551

ZHI ZHI CHEN,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney

General of the United States,

Respondent.

On Petition for Review from the

Board of Immigration Appeals

No. A 77-774-695

O R D E R

Zhi Zhi Chen, a 23-year-old male Chinese national, claims that he was persecuted

based on his resistence to China’s notorious birth-control measures. Chen applied for

asylum, withholding of removal, and relief under the Convention Against Torture, but

the Immigration Judge denied relief, concluding that Chen was not credible and not

eligible for asylum. The Board of Immigration Appeals summarily affirmed the IJ’s

decision. Chen petitioned for review, but we find that the IJ’s decision was supported

by substantial evidence and we therefore deny the petition.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 04-1551 Page 2

I

At the removal hearing, Chen testified that he and his girlfriend were denied a

marriage certificate in the summer of 1998 because they were below the legal age for

marriage: 20 for women and 22 for men. Shortly thereafter, his girlfriend became

pregnant, and the couple relocated to the countryside to live withhis parents. InMarch

1999, at a time when Chen was not at home, family planning officials came to his

parents’house and took his girlfriend away. Uponreturning home and finding her gone,

Chen suspected that she had been taken to have an abortion. He rushed to her

hometown hospital only to spot her as she was being wheeled into the operating room.

He attempted to charge into the operating room, but he was physically restrained by

family planning officials. After two hours, his girlfriend emerged from the operating

room, pale and crying, and Chen said that he “knew right away” that an abortion had

been performed on her.

Chen then went to the local family planning office and confronted the officials there

about the abortion. They directed him to another office, where he angrily denounced

the policy, using profanity and overturning one table. The officials then called the

police, while onlookers advised him that his outrage was futile and he should flee

before the police arrived. He took that advice, escaping to a friend’s house, where he

hid. Soon thereafter, Chen paid snakeheads to smuggle him to the United States.

Chen further testified that he fears being returned to China because, he

anticipates,the officials would beat him, detain him, and imprison him for violating the

familyplanning policy, resisting the policy, and fleeing the countrywithout permission.

The Service declined to cross-examine Chen.

The IJ found both that Chen was not credible and that his account was legally

insufficient. She describedChen’s testimony as “vague and implausible” and “meager,”

and observed that given the circumstances, it was reasonable to expect corroborating

evidence such as medical records or affidavits. The IJ also noted that, according to the

State Department documents in the record, U.S. consular officials were not aware of

any forced abortions of illegitimate children in Fujian province, where these events

took place. The IJ also noted that other background information in the record did not

reflect that criminal punishment was meted out for family planning violations. Based

on these findings, the IJ concluded that Chen had failed to establish that he was a

refugee within the meaning of 8 U.S.C. § 1101(a)(42). The judge also noted that he was

not the spouse of a person who underwent a forced abortion – he was “merely the

boyfriend of a person who was victimized by China’s coercive population control laws.”

As such, the IJ found that he was not covered by the Board’s decision in In re C-Y-Z-,

21 I&N Dec. 915 (BIA 1997), without expanding the rationale of that decision, which

the IJ declined to do. The IJ also rejected the argument that Chen’s potential arrest

for disorderly conduct qualified him for asylum, because punishment for criminal

conduct is not persecution. Finally, the IJ noted that even if Chen had a well-founded

fear of persecution, he had failed to show that relocation to another part of China was
No. 04-1551 Page 3

unavailable as an option. The BIA affirmed without opinion.

II

When the BIA summarily affirms the decision of the IJ, the IJ’s ruling becomes the

agency’s final decision, 8 C.F.R. § 1003.1(e)(4); Ememe v. Ashcroft, 358 F.3d 446, 450

(7th Cir. 2004), and this court reviews the IJ’s decision directly. Georgis v. Ashcroft,

328 F.3d 962, 967 (7th Cir. 2003). We will affirm the IJ’s decision if it is supported by

“reasonable, substantial, and probative evidence on the record considered as a whole”

and is based on “specific, cogent reasons” that “bear a legitimate nexus to the finding.”

Krouchevski v. Ashcroft, 344 F.3d 670, 673 (7th Cir. 2003). To qualify for asylum, a

petitionermust showthat he is a refugee by proving that he was persecuted in the past

or has a well-foundedfear offuture persecution onaccount of race, religion, nationality,

membership in a social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A); Liu v.

Ashcroft, 380 F.3d 307, 312 (7th Cir. 2004). Under § 1101(a)(42)(B), an asylum

applicant may establish persecution by showing that he or she has been forced to

undergo sterilization or abortion; has been persecuted for failing to undergo either

procedure; or has experienced persecution for other resistance to coercive family

planning procedures. Lin v. Ashcroft, 385 F.3d 748, 752-53 (7th Cir. 2004).

To the extent Chen is arguing before this courtthat the IJ erred in concluding that

he could not avail himself of relief under § 1101(a)(42)(B) because he and his girlfriend

were unmarried, he runs into the problem of deference to the agency’s interpretation

of the rules. As the IJ pointed out, although In re C-Y-Z- found past persecution of a

husband based on the forced sterilization of his wife, see 21 I&N Dec. at 919, Chen and

his girlfriend were not married and the BIA has never extended the C-Y-Z- rule to

unmarried couples. Other courts of appeals have accepted this reading of the statute.

See, e.g., Chen v. Ashcroft, 381 F.3d 221, 227-29 (3d Cir. 2004) (presumption of

persecution afforded to spouses of women forced to undergo abortions not extended to

unmarried men); Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir. 2004) (same). The

Ninth Circuit extends C-Y-Z-to couples who are marriedin traditional ceremonies, but

are unable to legally register their marriage. See Ma v. Ashcroft, 361 F.3d 553, 559

(9th Cir. 2004)(BIA decision not to extend C-Y-Z- to couples who are married in

traditional ceremonies, but not legally registered, was not entitled to deference

because § 1101(a)(42)(B) protects “couples”); Zheng v. Ashcroft, 397 F.3d 1139, 1148

(9th Cir. 2005) (traditionally, but not legally, married husband eligible for asylum on

the basis of wife’s forced abortion). Notably, the First Circuit has characterized the

case law as a circuit split. See Chen v. Gonzales, 418 F.3d 110, 111 & n.2 (1st Cir.

2005) (declining to address the question). And the Second Circuit, in Lin v. United

States Department of Justice, 416 F.3d 184, 191-92 (2d Cir. 2005), recently remanded

a number of cases to the BIA to explain the rationale for limiting the asylum

presumption to spouses. We are not persuaded that we should reach a result different

than the Third and Fifth Circuits.

 
No. 04-1551 Page 4

We need not decide this issue definitively, however, because Chen’s petition failed

for a more fundamental reason: an adverse credibility determination. Even if, as Chen

contends, it was wrong for the IJ to base her adverse credibility determination solely

on his lack of corroborating evidence, see Lin, 385 F.3d at 756; Diallo v. Ashcroft, 381

F.3d 687, 695 (7th Cir. 2004), any such error made no difference here. He argues that

he should prevail on his alternate argument that he was persecuted not as the partner

of a woman forced to have an abortion, but instead as a person who himself resisted

coercive family planning policies. See § 1101(a)(42)(B) (stating that a person who

engages in “other resistance to a coercive population control program, shall be deemed

to have been persecuted on account of political opinion”). There is a paucity of cases

analyzing the meaning of the term “resistance” under the statute, and Chen has not

pointed to anything to support his position that his outburst at the family planning

office would qualify. The Third Circuit found in Cao v. Attorney General of the United

States, 407 F.3d 146, 153 (3d Cir. 2005), that this standard was met where a doctor

wrote articles critical of birth control measures and publicized a practice of hospital

infanticide. It was not unreasonable, however, for the IJ to characterize Chen’s

behavior at the family planning office as mere disorderly conduct that fell short of the

type of formal and public resistance the doctor in Cao demonstrated.

Finally, Chen has not presented any reason for us to reject the IJ’s finding that his

claim failed because he could have relocated to another part of China. See Matter of

R-, 20 I&N Dec. 621, 625-27 (BIA 1992).For all these reasons, we DENY Chen’s petition

for review.