Huang v. Holder

Filing

OPINION, Petition for review is Granted and Case Remanded by DJ JON PNL, FILED.[563448] [10-1263]

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10-1263-ag (L)
Huang v. Holder

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2011
Submitted: December 1, 2011

Decided: March 27, 2012

Docket Nos. 10-1263-ag(Lead), 11-3584-ag(Con)
- - - - - - - - - - - - - - - - - - HUI LIN HUANG and ZENG YONG ZHOU,
Petitioners,
v.
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
- - - - - - - - - - - - - - - - - - Before: JACOBS, Chief Judge; NEWMAN and LEVAL, Circuit Judges.
Petition to review the March 26, 2010, order of the Board of
Immigration Appeals, Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209
(B.I.A. 2010), rev’g Nos. A098 363 500/499 (Immig. Ct. N.Y.C. Feb.
12, 2008), denying application for asylum and other relief despite
a finding by an Immigration Judge (“IJ”) that the female applicant
will be subjected to coercive sterilization if returned to the
People’s Republic of China. The BIA had ruled that an IJ’s finding
concerning a future event is not fact-finding subject to clear
error review.
The Court of Appeals rejects that ruling and remands for
further consideration.
BIA’s

application

of

The Court of Appeals also approves the
the

de

novo

standard

of

review

to

the

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objective

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component

of

a

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reasonably

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well-founded

19

fear

of

persecution and approves the BIA’s determination of the weight to
be accorded State Department country reports.
Petition granted, and case remanded.
Richard Tarzia, Belle Mead, N.J.,
submitted a brief for Petitioners.
Tony West, Assistant Attorney General,
Margaret J. Perry, Senior Litigation
Counsel,
Anh-Thu P. Mai-Windle,
Senior Litigation Counsel, Office of
Immigration Litigation, Civil Div.,
U. S. Dep’t of Justice, Washington,
D.C.,
submitted
a
brief
for
Respondent.
(Joseph C. Hohenstein, Orlow, Kaplan &
Hohenstein, LLP, Philadelphia, Pa.,
Madeline Garcia, Pembroke Pines,
Fla., Matthew Guadagno, Brooklyn,
N.Y.;
Annette
Marie
Wietecha,
submitted a brief for amicus curiae
American
Immigration
Lawyers
Association,
in
support
of
Petitioners.)
(Deborah E. Anker, Sabrineh Ardalan,
Harvard
Immigration
and
Refugee
Clinical Program, Cambridge, Mass.,
Susham Modi, Immigration and Refugee
Advocate, University of Houston Law
Center Immigration Clinic, Houston,
Tex., submitted a brief for amici
curiae Law Professors, Instructors,
and Practitioners, in support of
Petitioners.)
JON O. NEWMAN, Circuit Judge.
This petition for review of a decision of the Board of
Immigration Appeals (“BIA”) primarily raises two issues concerning

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the standard of review that the BIA applies to a decision of an
immigration judge (“IJ”).

The first is whether the BIA may ignore

an IJ’s finding that an event constituting persecution will in fact
occur if the applicant is removed on the theory that the finding of
a future event is not fact-finding subject to review for clear
error. The second is whether the BIA reviews de novo an IJ’s
decision that an asylum applicant has satisfied her burden to
establish

an

persecution.

objectively

reasonable

well-founded

fear

of

The petition also raises the issue of the weight the

BIA is entitled to give to State Department country reports. These
issues arise on a petition filed by Hui Lin Huang and Zeng Yong
Zhou to review the March 26, 2010, order of the BIA, reversing the
February 12, 2008, decision of Immigration Judge Helen Sichel, and
denying their application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). See Matter of
H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (B.I.A. 2010), rev’g Nos. A098
363 500/499 (Immig. Ct. N.Y.C. Feb. 12, 2008).
We conclude that an IJ’s finding that a future event will
occur if an applicant is removed is a finding of fact subject to
review for clear error and that the BIA properly applies de novo
review to an IJ’s determination that an asylum applicant has not
satisfied her burden to establish an objectively reasonable fear of
persecution.

We also conclude that the BIA may determine the

weight to be accorded to State Department country reports. Because

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of our ruling on the first issue, we grant the petition for review
and remand for further consideration.
Background
Petitioner Hui Lin Huang and her husband, Zeng Yong Zhou, are
natives and citizens of the People’s Republic of China (“PRC”).
Both entered the United States without proper documents, Zhou in
1999 and Huang in 2002.

The couple gave birth to a son in 2003 and

a daughter in 2007.
Huang, the lead petitioner,1 filed an application for asylum
in 2006.2

She and her husband were served with notices to appear

before immigration authorities in 2007 and conceded removability.
Huang was the only witness at the hearing before the IJ.

She

testified that if she was removed, she would take her two children
with her and live at her husband’s home in Huang Qi Township in
Fujian Province.

She understood the local family planning policy

to be “one birth, IUD; two birth[s], sterilization” and that she
had

been

informed

broadcasts.

of

this

policy

300-400

times

from

radio

She testified that she would be forcibly sterilized

and also fined 20,000-25,000 RMB for violating the policy, that she

1

Huang designated Zhou as a derivative beneficiary.
§ 1158(b)(3) (2009); 8 CFR § 1208.21 (2012).
2

See 8 U.S.C.

Because Huang does not challenge the BIA’s denial of her claims
for withholding of removal or relief under the CAT, those claims are
forfeited. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d
Cir. 2005).

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could not pay such a fine, and that, as a result of nonpayment, she
would be jailed and her home destroyed.

She also testified that

her father, uncle, five aunts, and two friends had been forcibly
sterilized.
The IJ ruled that the application was timely. The BIA did not
disagree, and the Government has not challenged timeliness in tis
Court.
Turning to the merits, the IJ recognized that an asylum
applicant “must demonstrate an actual and genuinely held subjective
fear of persecution and further show this fear is objectively
reasonable, i.e., well-founded.” IJ Op. at 4 (citing
Cardoza-Fonseca, 480 U.S. 421 (1987)).
Huang

to

be

a

credible

witness,

INS v.

After explicitly finding

the

IJ

stated,

“[S]he

has

demonstrated that were she to be returned to China, the local
authorities who would have jurisdiction over her family planning
situation

would

significant

fine

coercively
on

her.”

sterilize
IJ

op.

her

at

10

and

also

(emphasis

impose

a

added).3

Implicitly treating this credible testimony as establishing Huang’s
subjective fear of persecution, the IJ considered the objective
component of such fear and ruled that Huang “at least meets the

3

The IJ did not explicitly make a finding as to whether the fine
would constitute a “deliberate imposition of a substantive economic
disadvantage,” which we have ruled is needed before the imposition of
a fine can be considered persecution. See Guan Shan Liao v. U.S. Dep’t
of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (internal quotation marks
omitted).

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reasonable person standard for a well-founded fear of coercive
sterilization were she to be returned to People’s Republic of
China.” Id. at 12.

Having ruled that Huang was eligible for

asylum, the IJ then ruled that Huang’s case was appropriate for a
favorable exercise of the Attorney General’s discretion and granted
the application for asylum.
On appeal by the Department of Homeland Security, the BIA
reversed in a precedential decision.

Initially, the Board noted

that it reviews an IJ’s “findings of fact,” including those
relating to credibility, to determine whether they are “‘clearly
erroneous.’”

25

I.

&

N.

Dec.

at

211

(citing

8

C.F.R.

§ 1003.1(d)(3)(i)(2010)), and reviews de novo “all other questions
of law, discretion, and judgment, including the question whether
the parties have met the relevant burden of proof.” Id. (citing 8
C.F.R. § 1003.1(d)(3)(ii)).4

The Board illustrated the final

4

The full text of section 1003.1(d)(3) is as follows:

(3) Scope of review. (i) The Board will not engage in de
novo review of findings of fact determined by an immigration
judge. Facts determined by the immigration judge, including
findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the
immigration judge are clearly erroneous.
(ii) The Board may review questions of law, discretion, and
judgment and all other issues in appeals from decisions of
immigration judges de novo.
(iii) The Board may review all questions arising in appeals
from decisions issued by Service officers de novo.
(iv) Except for taking administrative notice of commonly
known facts such as current events or the contents of

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portion of this standard of review by stating, “[T]he question
whether the facts are sufficient to establish that the [asylum
applicant] has a well-founded fear of persecution upon return to
China is a legal determination that we review de novo.” 25 I. & N.
Dec. at 212.

Then, in a

statement critical to the issues on this

petition for review, the Board stated:
Determining whether a fear of what may happen in the
future is well founded essentially involves predicting
future events, and “it is impossible to declare as a
‘fact’ things that have not yet occurred.”
Id. (quoting Matter of A-S-B-, 24 I. & N. Dec. 493, 498 (B.I.A.
2008)). The Board did not rule clearly erroneous the IJ’s finding
that

local

authorities

“would

coercively

sterilize”

Huang.

Instead, the Board turned its attention to State Department reports
on country conditions including the Profiles of Asylum Claims and
Country Conditions, which it called “highly probative evidence,” 25
I. & N. Dec. at 213, “usually the best source of information on
conditions in foreign nations,” id. (citing Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006)), and
entitled to “‘special weight,’” id. (quoting Aguilar-Ramos v.
Holder, 594 F.3d 701, 705 n.6 (9th Cir. 2010).

official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting
that the Board cannot properly resolve an appeal without
further fact-finding must file a motion for remand. If
further fact-finding is needed in a particular case, the
Board may remand the proceeding to the immigration judge or,
as appropriate, to the Service.

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Then, noting that it had “considered the State Department
documents on country conditions along with the particularized
evidence presented by the applicant,” the Board concluded “that
[Huang] has not carried her burden of establishing a well-founded
fear that the family planning policy will be enforced against her
through means constituting persecution upon her return to China.”
Id. (citing Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.
2007)).
Discussion
Initially, we grant the motions of the American Immigration
Lawyers Association and the “Law Professors, Instructors, and
Practitioners” to submit amicus curiae briefs. See Fed. R. App. P.
29.
Under the circumstances of this case, we have reviewed only
the decision of the BIA.
271 (2d Cir. 2005).

See Yan Chen v. Gonzales, 417 F.3d 268,

Our applicable standards of review are well

established. See 8 U.S.C. § 1252(b)(4)(B) (2005); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
I. BIA’s Review of Fact-Finding Concerning a Future Event
We first consider the Board’s treatment of the IJ’s finding
that if Huang is returned to China, the local authorities “would
coercively sterilize her.”

The Board did not rule whether this

finding was clearly erroneous.

Instead, it ruled that an IJ’s

prediction that local authorities will impose a particular form of

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harm upon a returned asylum applicant is not a finding of fact to
be reviewed for clear error.

As we have noted, the Board stated

that “it is impossible to declare as ‘fact’ things that have not
yet occurred.” 25 I. & N. Dec. at 212 (internal quotation marks and
citation omitted).

If all the Board means by this statement is

that a prediction that an event will occur in the future usually
cannot be determined with the same degree of certainty that
accompanies a finding that a past event has occurred, we would
readily

agree.

But

the

Board

is

saying

something

much

stronger–that a finding that an event will occur in the future is
not a finding of fact at all.

This meaning is evident from the

Board’s citation of its precedential decision in A-S-B-, 24 I. & N.
Dec. 493 (B.I.A. 2008).
That case involved the claim of an asylum applicant who had
previously

been

threatened

by

guerillas

persecution because of the prior incident.

and

feared

future

The IJ had concluded

that the applicant “would likely be singled out for persecution.”
A-S-B-, 24 I. & N. Dec. at 494.

The BIA, exercising de novo

review, stated:
[T]he Immigration Judge rested his conclusion on
speculative findings about what may or may not occur to
the respondent in the future. This is not fact-finding,
because, among other reasons, it is impossible to declare
as “fact” things that have not yet occurred. Cf. [Jian
Xing] Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).

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Id. at 498 (emphasis added).5

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The Board additionally made its view

clear in another precedential decision, Matter of V-K-, 24 I. &

N. Dec. 500 (B.I.A. 2008), vacated and remanded sub nom.
Kaplun v. Attorney General, 602 F.3d 260 (3d Cir. 2010),
rendered the same day as A-S-B-.

In V-K-, the Board,

stated, “Although predictions of future events may in part be
derived from ‘facts,’ they are not the sort of ‘[f]acts
determined by the Immigration Judge’ that can only be reviewed
for clear error.” 24 I. & N. Dec. at 501.
We think the BIA has erred in declining to consider an
IJ’s finding that a future event will occur to be fact-finding
subject to review for clear error.

A determination of what will

occur in the future and the degree of likelihood of the occurrence
has been regularly regarded as fact-finding subject to only clear
error review.

See, e.g., In re Jackson, 593 F.3d 171, 178 (2d Cir.

2010) (future earnings); National Market Share, Inc. v. Sterling

5

The Board’s citation to our Court’s decision in Jian Xin Huang
(not the Huang in the pending case) is well preceded by only “Cf.”
Jian Xin Huang, decided under the pre-2002 regulations giving the BIA
de novo review of all IJ decisions, see 421 F.3d at 127-28, did not
rule that findings as to future events cannot establish “facts”
subject to clear error review. It simply ruled, in agreement with the
BIA, that the applicant’s evidence as to future persecution in that
case was “speculative at best.” Id. at 129.

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National Bank, 392 F.3d 520, 529 (2d Cir. 2004) (future viability
of a business); Fuchstadt v. United States, 442 F.2d 400, 402-03
(2d Cir. 1971) (future earnings).
under

clearly

erroneous

review

Such a finding may be rejected
as

speculative

only

in

those

instances where the IJ lacks an adequate basis in the record for
the determination that a future event will, or is likely to, occur,
but the finding may not be rejected as speculative simply because
it concerns a future event.

As the Third Circuit has persuasively

pointed out in Kaplun, “A present probability of a future event
. . . while an assessment of a future event, is what a decisionmaker in an adjudicatory system decides now as part of a factual
framework

for

determining

legal

effect.”

602

F.3d

at

269.

Furthermore, the Attorney General’s 2002 Guidance to the BIA
stated,

“The

[Justice]

Department’s

adoption

of

the

‘clearly

erroneous’ standard encompasses the standards now commonly used by
the federal courts with respect to appellate court review of
findings of fact made by a trial court.” Board of Immigration
Appeals: Procedural Reforms To Improve Case Management, 67 Fed.
Reg. 54878-01, 54890 (Aug. 26, 2002). The BIA’s “non-fact” view of
a finding regarding a future event and its refusal to apply clear
error review to such a finding is an error of law.6 See En Hui

6

The Government’s defense of the BIA’s approach is seriously
flawed.
First, in describing the IJ’s rulings in this case, the
Government makes no mention of the IJ’s critical finding that if Huang
returns to the PRC, coercive sterilization will occur. Second, when

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Huang v. Attorney General, 620 F.3d 372, 382-83 (3d Cir. 2010).7
The BIA, however, is on sound ground in its view that de novo
review applies to the ultimate question of whether the applicant
has sustained her burden to establish that her subjective fear of
persecution is objectively reasonable.

What the law’s legal

construct of a reasonable person would believe or do under the
particular circumstances of a case is normally a question of law,
the decision of which is reviewed de novo.

Examples are a

reasonable police officer’s belief, for purposes of the validity of
an arrest, that probable cause exists,

see

United States v.

the Government discusses the BIA’s rulings in this and earlier cases,
it goes directly to the legal issue of whether the applicant has
satisfied her burden to show an objectively reasonable fear of future
persecution, ignoring, as the BIA did in this case, the IJ’s factual
finding. See Brief for Respondent at 7, 26-28.
7

Our decision in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.
2008), did not resolve the issue. Although one of the IJ's in the
three cases considered in that opinion appears to have made a finding
that a petitioner would be subjected to coercive sterilization upon
return to China, the BIA did not, as in the pending case, reject that
finding on the theory that it was a finding concerning a future event.
The BIA had not then issued its precedential decisions in V-K- and AS-B-, expressing its view that an IJ's finding that a future event
will occur is not a finding of fact subject to clear error review. As
a result, our Court in Shao had no occasion to consider the validity
of the BIA’s subsequently announced approach to such fact-finding. We
simply ruled, consistent with this opinion, that the BIA had made a
legal determination that the petitioner’s subjective fear of
persecution was not objectively reasonable. See id. at 161-62.
Our subsequent decision in De La Rosa v. Holder, 598 F.3d 103,
108 (2d Cir. 2010), also did not resolve the issue. Ruling on a claim
arising under the CAT, we remanded in part because the BIA had
rejected, as contrary to the “weight of the evidence,” an IJ’s finding
that torture was more likely than not to occur. See id. at 108. The
BIA had not rejected the IJ’s finding on the ground that it concerned
a future event.

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Patrick,

899

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F.2d

169,

Page: 13

171

(2d

03/27/2012

Cir.

1990)

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(“The

19

ultimate

determination of whether probable cause to arrest existed . . . is
essentially a legal question subject to de novo review.”); a
reasonable person’s belief, for purposes of determining whether a
seizure occurred, that the person was free to leave, see United
States v. Peterson, 100 F.3d 7, 11 (2d Cir. 1996) (“Whether, in
light of the facts, a seizure occurred is a question of law to be
reviewed de novo.”); and a reasonable public official’s belief, for
purposes of qualified immunity, that the official’s actions were
lawful, see Lore v. City of Syracuse, __ F.3d __, __, 2012 WL
310839 (2d Cir. Feb. 2, 2012).8
The Third Circuit suggested in En Hui Huang that the ultimate
question

of

whether

an

asylum

applicant

has

established

an

objectively reasonable fear of persecution often comprehends three
subsidiary questions as to which different standards of review
apply.

The first is what may or will happen to the asylum

applicant if she returns home.

En Hui Huang, 620 F.3d at 383.

Decision of this question, as we in this case and the Third Circuit
have ruled, is a finding of fact as to which clear error review
applies. See id.

The second question is whether what may or will

8

A notable exception arises in tort law where what a reasonable
person would have done under the circumstances of the case is
generally a fact question submitted to a jury.
10A Charles Alan
Wright et al., Federal Practice and Procedure § 2729 (3d ed. 1998)
("[E]ven when there is no dispute as to the facts, it usually is for
the jury to decide whether the conduct in question meets the
reasonable-person standard.").

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happen to the asylum applicant is serious enough to meet the legal
test of persecution. See id.

The Third Circuit ruled that a

determination on this point is an issue of law as to which de novo
review applies. See id. Although we have characterized this second
issue as a mixed question of law and fact, see, e.g., Mirzoyan v.
Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (“The IJ determined
. . . that the facts did not meet the legal definition of
persecution in the INA.

This is a mixed question of law and fact,

which we review de novo.”), we have likewise concluded that it is
subject to de novo review. See Edimo-Doualla v. Gonzales, 464 F.3d
276, 283 (2d Cir. 2006) (“The IJ also found that the [alleged harm]
did not rise to the level of persecution . . . .

We review de novo

whether the IJ applied the correct legal standard for persecution
claims[.]”) (citing Secaida-Rosales v. I.N.S., 331 F.3d 297, 307
(2d Cir. 2003)); Kambolli v. Gonzales, 449 F.3d 454, 457 (2d Cir.
2006) (reviewing the IJ’s “legal conclusions” de novo, including
his finding that the mistreatment Kambolli allegedly suffered did
not constitute persecution).

The Third Circuit characterized the

third

the

question

as

“whether

possibility

of

those

events

occurring gives rise to a well-founded fear of persecution under
the circumstances of the alien’s case.” En Hui Huang, 620 F.3d at
383 (emphasis added).

This question, said the Third Circuit, is a

mixed question of fact and law, id. at 384, as to which de novo
review applies, id. at 387.

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One aspect of the Third Circuit’s formulation of the third
question is potentially ambiguous.
Third

Circuit

is

focusing

on

It is not clear whether the
events

that

constitute

the

persecution, such as forcible sterilization, or events that would
be the consequence of not submitting to family planning policy
requirements,
sterilization.

such

as

jail

or

a

fine

for

not

submitting

to

We need not pursue this distinction because of the

IJ’s finding that forced sterilization will occur.9
In the pending case, both sides urge us not to require the BIA
to consider separately the three questions identified by the Third
Circuit, an approach they contend would be unwieldy in practice,
see Br. for Petitioner at 12 (“[I]t becomes all but impossible to
rationally

differentiate

the

probability

inquiry

from

the

reasonableness inquiry.”); Br. for Respondent at 38 (“Applying the
Third Circuit’s deconstructionist theories . . . is a dizzying
prospect.”).
We see no need to prescribe a precise method of analysis that
the BIA must apply when it reviews the decision of the IJ.

An

appropriate approach will depend on what the IJ has decided and

9

In the pending case, Huang testified that, in addition to
forcible sterilization, she would be fined 20,000 to 25,000 RMB. She
also testified that she could not pay such a fine and, in the event of
nonpayment, would face criminal prosecution that could result in jail
time and having her home demolished. The IJ found that, in addition
to forcible sterilization, a “significant fine” would be imposed, but
made no finding as to whether Huang’s financial circumstances would
preclude her payment.

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what issues are challenged on administrative review to the BIA.
The IJ might or might not have made a finding that some harm was
inflicted on the applicant in the past, or that some harm will be
inflicted in the future.

There might be a finding only as to some

probability of future harm, or only as to the consequences of not
obeying a family planning policy requirement.

The IJ might

determine whether the harm, past or future, is serious enough to
constitute persecution or whether the harm, past or future, has
been shown to have been inflicted because of some protected ground.
Based on such determinations, the IJ will normally determine
whether the asylum applicant has suffered persecution and/or has a
subjective fear of suffering future persecution, and whether she
has an objectively reasonable fear of suffering future persecution.
In making determinations on these various issues, IJs needs to be
careful to break out the purely factual components of their
determinations. For example, if an IJ determines that an applicant
has suffered persecution, the IJ normally needs first to find as a
fact what has happened to the applicant and then determine the
legal issue of whether the harm inflicted constitutes persecution.
In some cases, however, there may be no dispute that the harm
inflicted,

for

example,

forcible

sterilization,

constitutes

persecution. See 8 U.S.C. § 1101(a)(42) (2011) (definition of
political refugee includes person “who has a well-founded fear”
that they will be forced to undergo sterilization). In every case,

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the IJ should take pains to make clear what part of his or her
determination is fact-finding and what part represents conclusions
of law.

For example, where an IJ finds a probability of future

persecution, the IJ should make clear what it is that the IJ finds
is likely to happen to the applicant and how likely it is, those
being factual questions.

The IJ should then explain the legal

conclusion that such treatment of the applicant meets the legal
standard for persecution. When the BIA reviews such determinations
by an IJ, it will be clear which parts are fact-finding, reviewable
for clear error, and which parts are questions of law, reviewable
on a de novo standard.
In the pending case, the BIA’s determination that the IJ’s
finding of a future event is not fact-finding and is not reviewed
for clear error requires that we remand.

On remand, the BIA must

either accept the finding that upon Huang’s return, she will be
coercively sterilized or reject that finding if it can properly
determine that the finding is clearly erroneous.

Only after

reviewing this finding can the BIA consider the issue whether Huang
has satisfied her burden to establish an objectively reasonable
fear of persecution. If the BIA does not validly reject as clearly
erroneous the finding of coercive sterilization and nonetheless
rules that Huang has not satisfied her burden of showing an
objectively reasonable fear of persecution, it will have to provide
sufficient explanation to permit proper appellate review by this

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Case: 10-1263

Court.

Document: 126

Page: 18

03/27/2012

563448

19

See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005)

(“Despite our generally deferential review of IJ and BIA opinions,
we require a certain minimum level of analysis from the IJ and BIA
opinions denying asylum, and indeed must require such if judicial
review is to be meaningful.”).
II. BIA’s Consideration of State Department Reports
The BIA stated that it accorded “special weight” to the U.S.
Department

of

State’s

Profile

of

Asylum

Claims

and

Country

Conditions in China (May 2007) (hereinafter “2007 Profile”), noting
that State Department Profiles are “highly probative evidence and
are usually the best source of information on conditions in foreign
nations.”

Matter of H-L-H-, 25 I. & N. Dec. at 213.

Huang,

supported by the amici, contends that the BIA erred by placing
undue reliance on the 2007 Profile, “cherry-picked a select few
passages

from

the

[2007

Profile]”

and

ignored

“inherent

contradictions” in it. Brief for Petitioners at 31.
Our case law has already approved the BIA’s consideration and
use of State Department country reports.

We have noted that State

Department reports are “probative,” Tu Lin v. Gonzales,

446 F.3d

395, 400 (2d Cir. 2006), and are “usually the best available source
of information on country conditions,” Xiao Ji Chen, 471 F.3d at
341-42 (internal quotation marks omitted); that the BIA is entitled
to “accord greater weight” to State Department reports in the
record than to countervailing documentary evidence, Jian Hui Shao,

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Document: 126

Page: 19

03/27/2012

563448

19

546 F.3d at 152; and that the weight afforded to the evidence,
including

State

discretion

of

Department

the

reports,

[agency],”

“lies

Xiao

Ji

largely

Chen,

471

within
F.3d

at

the
342

(internal quotation marks and alterations in original omitted).
Here, the BIA stated that it had “considered the State
Department

documents

on

country

conditions

along

with

the

particularized evidence presented by [Huang],” and concluded that
Huang failed to demonstrate “a well-founded fear that the family
planning

policy

will

be

enforced

against

her

through

means

constituting persecution upon her return to China.” Matter of H-LH-, 25 I. & N. Dec. at 213.

This use of the State Department

documents was not error, although, as previously discussed, the
error with respect to the IJ’s finding of coercive sterilization
requires

a

remand

for

reconsideration

of

the

BIA’s

ultimate

conclusion concerning the objective component of a reasonable fear
of persecution.
Conclusion
The petition for review in No. 10-1263-ag is GRANTED, and the
case is REMANDED for further consideration consistent with this
opinion.

In view of this remand, the consolidated case, No. 11-

3584-ag, is DISMISSED without prejudice to reinstatement of the
petition in the event that the BIA reissues a final order of
removal on remand.10

10

Huang’s request for oral argument is DENIED. See Fed. R. App.
P. 34(a)(2); 2d Cir. L. R. 34.1(b).

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