                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        November 21, 2003

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                              No. 03-60242
                            Summary Calendar


GONG FU LI,

          Petitioner,

                                    versus

JOHN ASHCROFT, U. S. ATTORNEY GENERAL,

          Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A72 368 932
                        --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

      Gong Fu Li (“Li”), a native and citizen of the People’s

Republic of China, petitions this court for review of the Board of

Immigration Appeal’s (“BIA”) summary affirmance of the Immigration

Judge’s (“IJ”) decision denying his applications for asylum and

withholding of removal.     Li argues that the IJ’s decision is not

supported by substantial evidence because he is eligible for asylum

and   withholding    of   removal    due     to   his   wife’s     involuntary

sterilization.


      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     Because the IJ found that Li did not meet the statutory

definition of a “refugee” and was, therefore, ineligible for asylum

and withholding of removal even assuming that Li’s testimony was

credible, there are no credibility determinations at issue in this

matter.1    Assuming Li’s statements to be true, the involuntary

sterilization of Li’s wife constituted past persecution of Li.2

This created regulatory presumptions that Li had a well-founded

fear of future persecution and that Li’s life or freedom would be

threatened in China in the future.3        As there was no evidence that

conditions had changed in China or that Li could avoid persecution

by relocating within China, the presumptions were not rebutted.4

Thus, Li was eligible for asylum and withholding of removal.5

     While the IJ’s factual finding that Li left China for reasons

other    than   the   sterilization   of   his   wife   was   supported   by

substantial evidence, his legal conclusion that Li did not meet the

statutory definition of refugee for this reason was erroneous. The

statutory definition of refugee does not require Li to have left




     1
         See Mikhael v. INS, 115 F.3d 299, 303 (5th Cir. 1997).
     2
       See In re C-Y-Z-, 21 I. & N. Dec. 915, 917-18 (B.I.A.
1997); 8 U.S.C. § 1101(a)(42).
     3
         See 8 C.F.R. §§ 208.13(b)(1), 208.16(b)(1)(i).
     4
         See 8 C.F.R. §§ 208.13(b)(1)(i) & (ii), 208.16(b)(1)(i) &
(ii).
     5
         See 8 U.S.C. §§ 1101(a)(42), 1231(b)(3)(A).

                                      2
China for any particular reason.6             As the IJ did not make any

finding regarding Li’s reasons for being unwilling to return to

China, the court need not consider whether such a finding is

supported by     substantial     evidence.7     Furthermore,    Li   was    not

required to demonstrate “compelling reasons for being unwilling to

return resulting from the severity of the past persecution unless

the   presumption   under   8    C.F.R.   §   208.13(b)(1)(i)   ha[d]      been

rebutted by the [INS].”8        Therefore, the IJ’s determinations that

Li was ineligible for asylum and withholding of removal were based

upon an error of law.9

      The BIA’s summary affirmance of the IJ’s denial of Li’s

applications for asylum and withholding of removal is REVERSED and

this matter is REMANDED to the BIA for further proceedings.




      6
          See 8 U.S.C. § 1101(a)(42).
      7
          See Mikhael, 115 F.3d at 303.
      8
          In re C-Y-Z-, 21 I. & N. Dec. at 919.
      9
       See id. at 917-20; see also He v. Ashcroft, 328 F.3d 593,
604 (9th Cir. 2003).

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