Li Ying Zheng v. Eric H. Holder, Jr.
722 F.3d 986
| 7th Cir. | 2013Background
- Li Ying Zheng, a Chinese citizen from Fujian, entered the U.S. illegally in 1999, later had two U.S.-born children, and applied for asylum and withholding of removal in 2006.
- Zheng claimed she underwent a forced abortion in China in 1999 and feared future forced sterilization or other persecution if returned because she now has two children born in the U.S.
- An Immigration Judge denied asylum as untimely and on the merits (finding no well-founded fear tied to U.S.-born children) and denied withholding of removal due to lack of credibility and insufficient likelihood of future persecution.
- The Board of Immigration Appeals affirmed, relying heavily on a 2007 State Department country report and concluding Fujian did not generally subject parents of U.S.-born children to forcible sterilization and that fines would not amount to persecution.
- The Seventh Circuit, noting intervening decisions (Ni and Qui Yun Chen) that cast doubt on the Board’s reading of country conditions in Fujian, granted Zheng’s petition, vacated the BIA’s decision, and remanded for reconsideration in light of the new materials; a later petition challenging denial of reconsideration was rendered moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum application | Zheng argued exceptions to the one-year filing bar applied (e.g., changed circumstances) or that application should be considered timely | Government argued Zheng missed the one-year filing deadline and did not qualify for exceptions | Court assumed for argument that timeliness could be satisfied and resolved case on the merits, remanding for reconsideration of country conditions |
| Past persecution credibility | Zheng claimed a forced abortion in China and past persecution | Government and IJ found inconsistencies in Zheng’s testimony undermining credibility | Court assumed lack of established past persecution for purposes of analysis but focused on future risk issue |
| Objective fear of future persecution based on having U.S.-born children | Zheng argued Fujian authorities may enforce the one‑child policy against parents of U.S.-born children, including by forced sterilization or severe sanctions | Government/BIA relied on the 2007 Country Profile and other materials suggesting forced sterilization is not official policy in Fujian and that penalties (fines) are not persecution | Court held Zheng was entitled to a remand: Ni and Qui Yun Chen revealed evidence undermining the BIA’s reliance on the 2007 report, requiring the BIA to reevaluate in a transparent way |
| Challenge to denial of BIA reconsideration | Zheng sought review of BIA denial of her motion to reconsider | Government maintained denial was proper | Court found this petition moot because primary BIA decision was vacated and remanded |
Key Cases Cited
- Ping Zheng v. Holder, 701 F.3d 237 (7th Cir.) (forced abortion/sterilization can constitute political persecution)
- Shi Chen v. Holder, 604 F.3d 324 (7th Cir.) (population-control coercion may ground asylum)
- Juarez v. Holder, 599 F.3d 560 (7th Cir.) (standard for reviewing BIA and IJ joint reasoning)
- Sarhan v. Holder, 658 F.3d 649 (7th Cir.) (review of IJ decision as supplemented by BIA)
- Bolante v. Mukasey, 539 F.3d 790 (7th Cir.) (objectively reasonable fear standard for asylum)
- Ni v. Holder, 715 F.3d 620 (7th Cir.) (remand required where BIA failed to consider provincial/local documents showing worsening enforcement of family‑planning policy)
- Qui Yun Chen v. Holder, 715 F.3d 207 (7th Cir.) (BIA overrelied on State Department report and failed to account for other evidence showing enforcement risks in Fujian)