In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-3719

XIU ZHEN LIN and JIA HUI SHI,

Petitioners,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition to Review an Order of the

Board of Immigration Appeals.

Nos. A77-950-569, -570.

____________

ARGUED JUNE 10, 2008—DECIDED JULY 8, 2008

____________

Before POSNER, COFFEY, and FLAUM, Circuit Judges.

POSNER, Circuit Judge. The female petitioner and her

son (whose opposition to removal is derivative from his

mother’s and therefore need not be discussed separately)

are Chinese citizens who in 2001 were ordered removed

to China. The Board of Immigration Appeals affirmed

the order the following year. For unexplained reasons,

the order was not executed, and four and a half years

later the petitioner asked the Board to reopen the removal proceeding on the ground that China was en-
2 No. 07-3719

forcing its “one child” policy more stringently than at the

time of the original proceeding; she has three children,

two born in the United States (the son born in China is the

other petitioner). The Board denied the motion to reopen,

on the ground that conditions in China had not worsened.

Congress has made persecution for “resistance to a coercive population control program” a ground for asylum. 8

U.S.C. § 1101(a)(42)(B); Zheng v. Gonzales, 409 F.3d 804, 811

(7th Cir. 2005); Lin v. Ashcroft, 385 F.3d 748, 752-53 (7th Cir.

2004); Li v. INS, 453 F.3d 129, 135 (2d Cir. 2006). But unless

the policy is enforced more stringently now than when the

petitioner was ordered removed (“changed country

conditions”), she cannot reopen the removal proceeding.

8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Kebe

v. Gonzales, 473 F.3d 855, 857-58 (7th Cir. 2007); Zhao v.

Gonzales, 440 F.3d 405, 407 (7th Cir. 2006) (per curiam);

Alemu v. Mukasey, 509 F.3d 907, 910 (8th Cir. 2007).

The 2006 report of the State Department on conditions

in China states that in Fujian, the petitioner’s province,

the government “reportedly forcibly sterilized women”

who violate the “one child” policy. U.S. Dep’t of State,

China: Country Reports on Human Rights Practices—2006,

§ 1(f) (Mar. 6, 2007). This is a stronger statement than

found in the country report for 2001, the year the petitioner was ordered removed; there we read that China

was “beginning to relax” enforcement of the policy in

cities and that after reports of forced abortions and sterilizations in Fujian, officials “scaled back the intensity

of their family-planning enforcement efforts.” U.S. Dep’t

of State, China: Country Reports on Human Rights Practices—

2000, § 1(f) (Feb. 23, 2001).

A recent letter from the “Villager Committee of Xiguan

Village, Wuhang, Changle City,” the governing body of
No. 07-3719 3

the petitioner’s village, states that the village “strictly

enforces The Population and Family Planning Ordinance

in Fujian Province,” that “all citizens with two children

will be designated as a target for sterilization,” and

“although you currently reside in the United States, you are

still a citizen of the People’s Republic of China. It is known

that you have had three children. You certainly will be

subjected to sterilization procedures unless you have

become a U.S. citizen or permanent residents, or have

Master or Ph.D. degree from a U.S. university,” which

neither petitioner has. The government does not doubt the

letter’s authenticity but says that it doesn’t indicate

changed circumstances since the removal proceeding. That

is incorrect. “The Population and Family Planning Ordinance in Fujian Province” is a reference to the Population and Family Planning Regulations of Fujian Province,

first enacted in 1988 but revised in July 2002 to implement a

national law, the Population and Family Planning Law of

the People’s Republic of China, which took effect that year.

Although neither the national law nor the

Fujian regulations mention sterilizations, Article 41 of the

national law says that violators will be assessed a “social

compensation” fee, and Article 39 of the Fujian regulations says that for a family with three children the

social compensation fee may exceed six times a couple’s

annual income. (Translations of both documents are

attached to the U.S. State Department’s China Profile of

Asylum Claims and Country Conditions (May 2007).) The

petitioner’s family is not wealthy. The national law and

the provincial regulations do not specify the consequence

for a person who cannot pay the fee.

The Board’s treatment of the villager committee’s letter

is the most disturbing aspect of the case. After noting

that the letter stated that the petitioner would “be subjected to sterilization procedures” if she returned to her
4 No. 07-3719

village, the Board said that she “had not provided evidence that the policy is implemented through physical force

or other means that would amount to persecution.”

Reading this we wondered whether the Board believes

that if the village government imposed a fine greater

than the petitioner could pay, and if as a result she

was required to undergo sterilization (which seems

implicit in the reference to “target for sterilization” and

“subjected to sterilization procedures”), the sterilization nevertheless would not amount to persecution. At

argument, the Justice Department’s lawyer said that

this was what the Board believes, while appropriately

noting his personal reservations about the soundness

of such a belief.

The implication is that if a government tells a religious

heretic we are going to fine you $1 million for your heresy

and if you cannot pay we are going to burn you at the

stake, and the heretic cannot pay and therefore is executed, the burning of the heretic would not, in the

Board’s view, amount to persecution. We cannot imagine

that this is really the Board’s view, since in cases like

In re T-Z-, 24 I. & N. Dec. 163, 173-75 (BIA 2007), the Board

has said that “a particularly onerous fine” can amount to

persecution even if nonpayment does not subject the

victim of the persecution to physical violence. The courts

have ruled similarly. Koval v. Gonzales, 418 F.3d 798, 805

(7th Cir. 2005); Eduard v. Ashcroft, 379 F.3d 182, 187 (5th

Cir. 2004); Shan Liao v. Department of Justice, 293 F.3d 61, 70

(2d Cir. 2002); Kovac v. INS, 407 F.2d 102, 107 (9th Cir.

1969). It is even clearer that, as the Board in In re T-Z-,

supra, 24 I. & N. Dec. at 168-169, acknowledged, an economic penalty that effectively compels a person to undergo

an abortion is a form of persecution. The courts, again,

have ruled likewise. Xiu Ling Chen v. Gonzales, 489 F.3d 861,
No. 07-3719 5

863 (7th Cir. 2007) (for the average Chinese citizen, a fine

of ten times her yearly income is “particularly onerous”

and if it were imposed the “only practical alternative

would be to avoid having more children, if necessary by

abortion or sterilization”); Zhang v. Gonzales, 408 F.3d

1239, 1247-48 (9th Cir. 2005) (child was not allowed to

attend school until parents paid a “substantial fine,” and

denial of educational opportunities can constitute persecution); Li v. Attorney General, 400 F.3d 157, 168 (3d Cir.

2005) (fine equal to 20 months’ salary can amount to

persecution); Wang v. Ashcroft, 341 F.3d 1015, 1020 (9th

Cir. 2003) (petitioner’s abortions in China were “forced,” in

part because officials threatened to impose unreasonably

high fees if she gave birth). If the Board’s view is as

represented by the government’s lawyer, and were sustained, the Board would have handed to the world’s

persecutors a formula for preventing victims of persecution from obtaining asylum in the United States. All a

persecuting government would have to do would be to

impose a fine in excess of the victim’s ability to pay,

with death as the back-up punishment if the victim was

(as he would be) unable to pay the fine.

It appears that the “one child” policy with sterilization as

the sanction for violating it is enforced most vigorously

in Fujian Province, and it is possible that if the petitioner

and her son relocated to another part of China the risk of

sterilization would be small, in which event they would

not have a well-founded fear of persecution if they are

removed. 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3)(i); Agbor v.

Gonzales, 487 F.3d 499, 505 (7th Cir. 2007); Rashiah v.

Ashcroft, 388 F.3d 1126, 1132 (7th Cir. 2004); Vente v.

Gonzales, 415 F.3d 296, 303 (3d Cir. 2005); Kaiser v. Ashcroft,

390 F.3d 653, 659 (9th Cir. 2004). But the government has

not argued this point. This is puzzling in light of our
6 No. 07-3719

recent decision in Song Wang v. Keisler, 505 F.3d 615 (7th

Cir. 2007), another case from Changle in Fujian Province,

where the Board, as our opinion noted, id. at 622, said

that the petitioner could relocate to a part of China

where the “one child” policy was not enforced as harshly

as it is in Fujian.

Our opinion in Song Wang also expressed skepticism

that the threat of forcible sterilization of violators of the

policy was grave, id. at 622-24, because of evidence that

the policy is enforced mainly by monetary penalties, the

size of which was not indicated. But that was before the

government’s lawyer told us in this case that the Board

may not consider sterilization induced by inability to

pay a monetary penalty to be a form of persecution,

despite the Board’s repeated acknowledgment in other

cases that onerous monetary penalties can be persecution.

The petitioner has carried her burden of showing

changed country conditions that entitle her to reopen her

removal proceeding. The Board will therefore have to

determine the likely consequences if the petitioner (and

her son) are returned to China. This will depend on the

current policy of governmental authorities in Fujian, the

size of the monetary penalties they are likely to impose

on the petitioner, whether she is likely to be able to pay

them, if not whether she is likely to be required to undergo sterilization, and whether she can avoid any or all

consequences of her violation of the one-child policy by

relocating to another part of China.

VACATED AND REMANDED.

USCA-02-C-0072—7-8-08