7th Circuit: Asylum case questions whether coerced abortion under China’s one-child policy is persecution

Li v. Holder, No. 09-3511 (7th Cir. July 15, 2010)

Before POSNER, WOOD, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge.

“. . . 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 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 (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 . . .

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 case is returned to the Board for further proceedings consistent with this opinion.