Nov. 3, 2015 – Lishou Wang, a Chinese citizen, is trying to avoid deportation from the U.S. on the grounds that he was persecuted for resisting China’s decades-old population control policy before coming to America. Recently, a federal appeals court kept his case alive.
In Wang v. Lynch, No. 15-1261 (Oct. 26, 2015), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit ruled that Wang can stay in the U.S. if he proves he “resisted” the policy and was “persecuted” by the Chinese government as a result.
Although China’s Communist Party leadership announced last week that married couples can now have two children, ending a “one child” policy instituted in the 1970s to control population growth, Wang and his wife were subject to the policy in the 1980s.
Farmers in the province of Shandong, Wang and his wife married in 1988. The following year, they had a daughter. Wang claims that government officials then required his wife to have an intrauterine device (IUD) implanted to prevent a second pregnancy.
But Wang’s wife became pregnant five years later after the IUD stopped working. Wang says “family-planning officials” forced Wang’s wife to have an abortion. By 2000, the policy enabled the couple to have another child, and Wang’s wife gave birth to a son.
Three months later, Wang says government officials came to the couple’s home and threatened to sterilize one of them. Wang says he protested and was severely beaten. Officials then forced his wife to have a permanent contraceptive implanted in her arm.
Around 2009, Wang entered the U.S. on a three-month visa. He overstayed the visa and applied for asylum on the basis that he was persecuted for his political opinion.
Wang submitted medical records showing his wife had received a “Norplant device implantation,” and he had suffered a bone fracture in his foot from the 2000 beating.
An immigration judge (IJ) within the U.S. Department of Homeland Security denied Wang’s request for asylum. The IJ questioned Wang’s credibility, noting that he gave alternative characterizations of the procedure his wife was forced to undergo. First he said she was forced to undergo a tubal ligation. Then he said she had a forced implant.
The IJ also noted that Wang had not suffered “past persecution,” a requirement for asylum, because he only claimed resistance to the contraceptive implant, and 8 U.S.C. § 1101(a)(42) requires resistance to involuntary abortion or sterilization.
The Board of Immigration Appeals upheld the IJ’s decision, finding no reversible error. But the three-judge panel for the Seventh Circuit Court of Appeals ruled that the immigration judge committed error by ruling that Wang was not credible.
The panel noted that Wang used an interpreter, which caused some confusion during the proceedings, and consistently described his wife’s 2000 surgical procedure as involving a ‘skin implant’ and birth control implant on my wife’s upper arm.’”
“[T]he IJ lacked substantial evidence to use Wang’s misunderstanding of the term ‘tubal ligation’ to discredit his uncontradicted testimony that family-planning officials implanted a contraceptive device into his wife’s arm,” Judge Michael Kanne wrote.
The panel also rejected the IJ’s conclusion that Wang could not demonstrate “past persecution” for political opinion, based on the facts presented. Wang, the panel noted, could seek relief if he proved that he resisted his wife’s sterilization or abortion.
“But Wang also may seek relief if he suffered persecution for engaging in ‘other resistance to a coercive population control program,’” wrote Judge Kanne.
The panel remanded the case to determine whether Wang established “other resistance” when he interfered with Chinese family-planning officials who came to his house in 2000, and whether the beating he suffered amounted to “persecution.”