Ai Chen v. Eric Holder, Jr.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: A095-377-458,A079-407-869. [999291260]. [12-2279]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2279
AI HUA CHEN; JIN XIU LI,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued:
September 19, 2013
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
MOTZ
and
February 5, 2014
KEENAN,
Circuit
Petition for review granted in part and denied in part by
published opinion.
Chief Judge Traxler wrote the opinion, in
which Judge Motz and Judge Keenan concurred.
ARGUED: Alexa Taiz Torres, LAW OFFICE OF RICHARD TARZIA, Belle
Mead, New Jersey, for Petitioners.
Walter Bocchini, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Gregory Marotta, LAW OFFICE OF RICHARD TARZIA, Belle
Mead, New Jersey, for Petitioners. Stuart F. Delery, Principal
Deputy Assistant Attorney General, Civil Division, Carl H.
McIntyre, Jr., Assistant Director, Christina J. Martin, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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TRAXLER, Chief Judge:
Petitioners Ai Hua Chen and Jin Xiu Li, both natives of
China’s Fujian Province, met and married in the United States
and are the parents of two children born to them here.
Li
admit
they
are
subject
to
removal,
but
seek
Chen and
asylum
and
withholding of removal on the basis that one or both of them
will be persecuted for having violated China’s one-child policy.
The couple also seeks asylum and withholding of removal on the
grounds
that
they
will
face
faith upon returning to China.
persecution
for
their
Christian
Despite finding both Chen and Li
to be credible witnesses, the immigration judge (“IJ”) and the
Board of Immigration Appeals (“BIA”), relying on an often-cited
2007 State Department report, China: Profile of Asylum Claims
and
Country
neither
Conditions
petitioner
(“2007
China
Report”),
concluded
established
a
well-founded
that
we
grant
that
fear
of
petition
for
persecution.
For
the
reasons
follow,
the
review to the extent Chen and Li seek relief based on China’s
one-child policy and remand that claim for further consideration
by the agency.
We deny the petition for review to the extent it
is grounded on the religious faith of the petitioners.
2
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I.
A.
Li arrived in the United States in June 2001 without valid
entry documents and was placed in removal proceedings by the
Department of Homeland Security (“DHS”).
and
religious
asylum,
but
an
immigration
Li sought political
judge
denied
application in 2003 and the Board affirmed in 2005.
his
In 2010,
however, the Board granted Li’s motion to reopen.
Chen
entered
nonimmigrant
colloquially
K-1
as
the
United
visa.
a
“fiancé
A
States
K–1
visa,”
in
January
nonimmigrant
permits
the
2003
visa,
on
a
known
foreign-citizen
fiancé of an American citizen to travel to the United States to
marry his or her citizen sponsor within ninety days of arrival.
See 8 U.S.C. § 1101(a)(15)(K)(i).
Chen’s fiancé sponsor, as it
turned out, decided not to marry her.
in
the
United
period.
States
after
the
Chen, however, remained
expiration
of
the
ninety-day
Chen and Li eventually met in 2005 and married in 2007.
Also in 2007, Chen gave birth to petitioners’ two children—
the first in January and the second in December.
Chen did not
have legal status in the United States, however, and she worried
that if she were ever forced to return to China, she and Li
would
be
policy.
considered
violators
of
China’s
infamous
one-child
Thus, in August 2007, while pregnant with petitioners’
second child, Chen applied for political asylum, which led to
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DHS
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initiating
overstaying her visa.
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removal
proceedings
against
her
for
In 2011, the proceedings against Chen
were consolidated with Li’s reopened proceedings.
Chen and Li seek asylum on two identical grounds.
First,
Chen and Li claim that even though their children were born
abroad, Chinese family planning officials would still consider
the pregnancies to have been “out-of-plan” pregnancies and in
violation of China’s family-planning regulations.
Chen and Li
believe that they would face fines, imprisonment and involuntary
sterilization upon their return to China.
On this basis, they
seek political asylum, which is potentially available for any
person who establishes “a well founded fear that he or she will
be forced to undergo [involuntary sterilization]” or will be
“subject to persecution” for “other resistance to a coercive
population control program.”
Li
and
Chen
also
seek
8 U.S.C. § 1101(a)(42).
religious
asylum.
As
practicing
Christians, Li and Chen claim that, if removed, they would be
compelled by their beliefs to attend a “house church,” which is
illegal in China.
They fear that participation in such a church
would result in their arrest and detention and that they would
be coerced by the government to renounce association with the
church.
4
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B.
1.
Although
the
IJ
found
both
Li
and
Chen
to
be
credible
witnesses, he concluded that they failed to prove that their
genuine
fear
of
future
persecution
policy was objectively reasonable.
fold.
they
under
the
family-planning
The IJ’s reasoning was two-
First, he determined that Li and Chen failed to prove
are
in
violation
of
China’s
family-planning
policies.
According to the 2007 China Report, upon which the IJ heavily
relied, each married couple in the Fujian Province “is allowed
to have one child without a birth permit.”
J.A. 419.
A second
child, therefore, is not allowed unless the government grants
permission ahead of time by issuing a birth permit.
found
that
children
born
abroad
are
not
counted
But the IJ
against
the
number of children allowed unless the returning parents choose
to register them as part of the household registration.
2007 China Report states that
U.S. officials in China are not aware of the alleged
official policy, at the national or provincial levels,
mandating the sterilization of one partner of couples
that have given birth to two children, at least one of
whom was born abroad.
. . .
. . . [T]he Population and Family Planning
Commission of Fujian Province stated in an October
2006 letter that children born abroad, if not
registered as permanent residents of China (i.e., not
entered into the parents’ household registration), are
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The
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not considered as permanent residents of China, and
therefore are not counted against the number of
children allowed under China’s family planning law. .
. .
J.A. 421-22.
Second, the IJ found that even if petitioners’ children
“counted” for purposes of China’s family-planning law, Li and
Chen would merely face fines or other economic penalties that do
not rise to the level of persecution.
Again, the IJ rested his
factual determination on the 2007 China Report, which states
that
“[a]ccording
to
the
Fujian
Provincial
Birth
Planning
Committee (FPBPC), there have been no cases of forced . . .
sterilization in Fujian in the last 10 years.”
The Report,
however, also acknowledges that “[i]t is impossible to confirm
this claim” and cited reports of forced sterilizations in 2006.
J.A. 418.
The 2007 China Report notes that the FPBPC claims
provincial
officials
compensation
sanctions.
impose
fees”—upon
J.A.
419.
only
economic
violators,
According
not
to
the
penalties—“social
physically
2007
coercive
China
Report,
however, for returning Chinese nationals who are the parents of
U.S.-born
children,
triggered
only
if
even
the
such
parents
economic
decided
penalties
“to
would
register
be
their
children as Chinese permanent residents in order to gain free .
. . educational and other social benefits.”
6
J.A. 422.
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The IJ noted some of the contradictory evidence submitted
by Li and Chen, but indicated without explanation that the 2007
China Report was simply “more persuasive.”
evidence
from
Chen
and
Li
included
The contradictory
(1)
an
affidavit
(and
supporting documents) from Renzun Yuan stating that immediately
after
removal
to
the
Fujian
Province,
he
was
sterilized
for
having violated China’s family-planning law even though his sons
were
born
critique
in
of
concluding
the
United
the
that
2007
it
States;
China
was
(2)
Report
outdated,
a
200-page
from
Dr.
inaccurate
scholarly
Flora
or
Sapio
based
on
anecdotal or unverifiable evidence; (3) written certifications
issued
by
the
applicants’
respective
local
family
planning
officials in Mei Hua Town, Chang Le City, and Ma Wei District of
Fuzhou City indicating that Li and Chen would be sterilized upon
returning
to
China
under
the
circumstances;
and
(4)
written
affirmations from Chen’s father and Li’s mother stating that the
certified
issued
statements
at
their
affirmations
friends,
all
from
of
from
the
request.
two
whom
of
family-planning
The
the
IJ
also
petitioners’
attested
to
having
officials
dismissed
cousins
undergone
were
written
and
two
forcible
sterilization after having unauthorized children in China.
The
IJ found such evidence lacking in probative value because the
children were not born abroad.
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Finally, as described in greater detail below, Li and Chen
submitted
ignored
Report
evidence
that
altogether.
from
the
the
This
IJ
either
evidence
failed
included
Congressional-Executive
(“2009 CECC Report”).
to
the
mention
2009
Commission
that
Annual
on
China
The CECC Report states that, as of 2009,
forced abortions and sterilizations were still occurring.
acknowledging
or
Chinese
law
prohibits
official
While
abuses
relating to population control, the 2009 CECC Report notes that
the
law
also
pregnancy
tests
“follow-up
goals.
requires
on
services”
local
married
to
officials
women
the
and
extent
to
carry
administer
needed
to
out
regular
unspecified
meet
planning
More specifically, local family-planning officials in
the Fujian Province are authorized to take “remedial measures”
for
out-of-plan
interprets
as
Additionally,
pregnancies,
a
this
which
euphemism
report
the
for
states
2009
compulsory
that
local
CECC
Report
abortions.
authorities
continued to require sterilization as a means of enforcing birth
quotas.
The IJ also ignored or failed to mention evidence of a
webpage maintained by the Fuzhou City (Fujian) Family Planning
Committee
which
apparently
provides
a
forum
for
citizens
to
submit questions about the family-planning policy and receive
responses from the government.
Li and Chen submitted a copy of
a screenshot from this website, dated June 16, 2010, showing an
8
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2008
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inquiry
from
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“Robert
Lin”
about
the
consequences
faced by Chinese nationals who have out-of-plan children abroad
and the Committee’s response that “sterilization is mandatory”
for violators of the one-child policy in this situation.
J.A.
824.
2.
The BIA adopted and affirmed the IJ’s decision that the
petitioners did not meet their burden of proving that there is
an “objectively reasonable possibility” that Li or Chen would be
“forcibly sterilized, excessively fined, or otherwise persecuted
for having two children without permission while in the United
States.”
J.A.
4.
The
BIA
offered
additional
discounting the evidence offered by Li and Chen.
the
BIA
observed
that
the
certifications
reasons
for
For example,
issued
by
family-
planning officials in Mei Hua Town, Chang Le City, and the Ma
Wei
District
of
Fuzhou
City,
were
entitled
to
little
weight
because they were unauthenticated, unsigned, did not identify
the
author,
and
were
procured
1
for
litigation
purposes. 1
The BIA also dismissed these certifications on the basis
that the 2007 China Report indicates that village committees are
“not authorized to make any decisions pertaining to family
planning issues.”
According to the BIA, such documents should
therefore “be deemed ineffective.” JA 5. This conclusion badly
misses the mark.
The relevant question for asylum purposes is
not what local authorities are authorized to do; the question,
particularly given the pressure local authorities face to meet
birth targets, is what they actually do.
As discussed in
(Continued)
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Likewise, the BIA found the statements from the petitioners’
family
and
friends
claiming
to
have
suffered
forcible
sterilization to be unworthy of extended consideration because
the
statements
biased
witnesses
contained
and
unsworn
lacked
assertions
sufficient
from
detail
that the witnesses were subject to persecution.
to
typically
demonstrate
And, like the
IJ, the BIA was unpersuaded by the documents related to the case
of
Renzun
unrelated
Yuan
because
asylum
they
applicant
were
and
submitted
the
to
applicants
support
an
offered
no
explanation as to how their attorney obtained the documents.
Relying
exclusively
on
the
2007
China
Report,
the
BIA
concluded that there was no basis for believing that government
officials in the Fujian Province use coercive measures rising to
the level of persecution in circumstances such as these.
The
BIA acknowledged that “there undoubtedly have been instances of
forced
abortion
and
sterilization
imposed
on
the
parents
of
children conceived and born [out-of-plan] in China,” J.A. 6, but
the BIA distinguished the petitioners’ claim on the basis that
their children were born abroad in the United States.
found
that
“[t]he
evidence
submitted
in
this
case
The BIA
does
not
greater detail below, petitioners’ evidence highlights the
importance
of
this
distinction,
demonstrating
that
local
practice does not always correspond with national policy.
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document any instance where enforcement measures rising to the
level
of
persecution
have
been
imposed
children who are United States citizens.”
on
the
Id.
parents
of
Finally, the
BIA, relying on the 2007 China Report, restated the IJ’s finding
that the only scenario in which sanctions might be imposed for
unauthorized
overseas
births
would
arise
from
the
parents’
registration of their children as members of their households
upon returning to China in order to secure free public benefits.
Even then, the BIA found, the parents would face only economic
penalties.
The BIA did not mention the 2009 CECC Report or the Fuzhou
City (Fujian) Family Planning Committee’s response to Robert Lin
on its webpage that sterilization is mandatory for violators of
the one-child policy even when the out-of-plan children were
born abroad.
II.
Because the BIA “adopted and affirmed” the decision of the
IJ but supplemented that decision with its own opinion, “the
factual findings and reasoning contained in both decisions are
subject to judicial review.”
511 n.8 (4th Cir. 2007).
Niang v. Gonzales, 492 F.3d 505,
And, because the denial of asylum was
based on the conclusion that Li and Chen failed to satisfy their
burden of proving a well-founded fear of future persecution, we
review
these
decisions
under
11
the
“substantial
evidence”
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standard.
Dankam
2007). 2
findings
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Under
of
v.
Gonzales,
this
fact
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495
deferential
are
F.3d
113,
standard,
conclusive
unless
119
(4th
Cir.
“administrative
any
reasonable
adjudicator would be compelled to conclude to the contrary.”
U.S.C. § 1252(b)(4)(B).
8
In other words, we cannot disturb the
agency’s “decision that an applicant is ineligible for asylum
unless we determine that the applicant’s evidence ‘was such that
a
reasonable
factfinder
would
have
requisite fear of persecution existed.’”
to
conclude
that
the
Djadjou v. Holder, 662
F.3d 265, 273 (4th Cir. 2011) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)).
In
order
Immigration
to
and
establish
Nationality
eligibility
Act
2
for
(“INA”),
asylum
an
under
applicant
the
must
The IJ also held that petitioners’ asylum claim was timebarred because they filed their applications after the usual
one-year deadline of arriving in the United States.
See 8
U.S.C. § 1158(a)(2)(B).
The BIA did not address this holding,
and neither party briefed the issue on appeal. To be brief but
clear: the IJ’s timeliness determination was wrong.
An
application for asylum is still timely if, after the one-year
deadline has passed, “changed circumstances [] materially affect
the
applicant’s
eligibility
for
asylum.”
8
U.S.C.
§ 1158(a)(2)(D).
“Changed
circumstances”
include
changed
conditions in the applicant’s country of nationality and
“changes
in
the
applicant’s
circumstances.”
8
C.F.R.
§ 1208.4(a)(4)(1).
Chen filed her asylum application while
pregnant with the couple’s second child.
In light of China’s
family-planning
policy,
this
second
pregnancy
plainly
constitutes a change in the couple’s circumstances that
“materially affects” their eligibility for asylum. See Qiu Yun
Chen v. Holder, 715 F.3d 207, 208 (7th Cir. 2013) (concluding
for same reason that an asylum application was timely).
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demonstrate that he or she is entitled to refugee status.
U.S.C. § 1158(b)(1)(A).
See 8
Under the INA, a refugee is someone
“who is unable or unwilling to return to . . . [his or her]
country
because
persecution
on
of
persecution
account
of
or
race,
a
well-founded
religion,
fear
of
nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A).
Petitioners “may satisfy this burden
by showing either that they were subjected to past persecution
or that they have a well-founded fear of future persecution on
account of” one of the enumerated grounds.
Djadjou, 662 F.3d at
272 (internal quotation marks and alterations omitted).
The INA
specifically
control
permits
victims
of
China’s
population
policy to seek political asylum:
[A] person who has been forced to abort a pregnancy or
to undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a
procedure or for other resistance to a coercive
population control program, shall be deemed to have
been persecuted on account of political opinion, and a
person who has a well founded fear that he or she will
be forced to undergo such a procedure or subject to
persecution for such failure, refusal, or resistance
shall be deemed to have a well founded fear of
persecution on account of political opinion.
8 U.S.C. § 1101(a)(42).
Li and Chen do not claim to have suffered past persecution,
but seek asylum based on their fear of future persecution.
“well-founded
1101(a)(42)
fear
has
of
persecution”
subjective
and
13
standard
objective
set
forth
elements.
The
in
§
The
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subjective component requires the alien to “present[] candid,
credible, and sincere testimony demonstrating a genuine fear of
persecution.”
2004)
Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
(internal
element
quotation
requires
a
showing
marks
of
omitted).
specific,
“The
concrete
objective
facts
that
would lead a reasonable person in like circumstances to fear
persecution.”
Id.
at
187-88.
Li
faltered on the objective component.
and
Chen’s
asylum
claim
Although the IJ found both
Chen and Li to be credible witnesses, he concluded that they did
not prove their fear of future persecution was an objectively
reasonable possibility.
III.
Chen and Li contend that the IJ’s decision, as supplemented
by the BIA’s order, lacked substantial evidence.
In their view,
the denial of asylum was unsupported by substantial evidence
because
picked
the
IJ
and
statements
consider
BIA
from
compelling
relied
the
almost
2007
China
contradictory
exclusively
Report
evidence
on
and
cherry-
failed
suggesting
to
that
forced sterilizations are still a reality for Chinese nationals
such as Chen and Li.
Typically, we have approved of the BIA’s proclivity for
finding State Department Country Reports to be the definitive
word
in
asylum
cases.
After
all,
such
reports
are
rightly
considered to be “highly probative evidence in a well-founded
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Reliance upon these reports makes sense because this
inquiry is directly within the expertise of the Department of
State.”
Gonahasa v. U.S. INS, 181 F.3d 538, 542 (4th Cir. 1999)
(citations
context
and
of
internal
quotation
substantial-evidence
contradictory
evidence,
the
marks
omitted).
review,
existence
In
“[a]bsent
of
a
State
the
powerful
Department
report supporting the BIA’s judgment will generally suffice to
uphold the Board’s decision.”
On
the
other
hand,
the
Id.
BIA
should
avoid
treating
these
Country Reports “as Holy Writ” immune to contradiction.
Galina
v.
C.J.).
INS,
213
F.3d
955,
959
(7th
Cir.
2000)
(Posner,
Although “our job as a reviewing court is not to reweigh the
evidence,” we must “ensure that unrebutted, legally significant
evidence is not arbitrarily ignored by the factfinder” and that
the
agency
does
not
“base
[its]
decision
on
only
isolated
snippets of [the] record while disregarding the rest.”
Baharon
v. Holder, 588 F.3d 228, 233 (4th Cir. 2009).
“selectively
consider
corroborates
an
evidence,
alien’s
claims
ignoring
and
that
calls
Gen.,
578
F.3d
1270,
1280
(11th
evidence
into
conclusion the judge is attempting to reach.”
Att’y
The BIA may not
Cir.
question
that
the
Tang v. U.S.
2009)
(internal
quotation marks omitted).
In order for us to discharge “our responsibility to ensure
that unrebutted, legally significant evidence is not arbitrarily
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ignored by the factfinder,” Baharon, 588 F.3d at 233, we require
the IJ and the BIA to “offer a specific, cogent reason for
rejecting evidence, whether testimonial or documentary, because
it lacks credibility,” Tassi v. Holder, 660 F.3d 710, 720 (4th
Cir. 2011).
We recognize that the BIA and IJ are not required
to discuss every piece of evidence in the record, but they must
“announce
their
decision[s]
in
terms
sufficient
to
enable
a
reviewing court to perceive that they have heard and thought and
not merely reacted.”
Ayala v. U.S. Att’y Gen., 605 F.3d 941,
948 (11th Cir. 2010) (internal quotation marks and alterations
omitted); see Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1368 (11th
Cir. 2011).
We
believe
Chen
and
Li
offered
“powerful
contradictory
evidence,” Gonahasa, 181 F.3d at 542, for which the BIA and the
IJ failed to adequately account.
As previously noted, Li and
Chen submitted the 2009 CECC Report. 3
The BIA’s failure to
account for the reports of the CECC is not unprecedented.
See,
e.g., Qiu Yun Chen v. Holder, 715 F.3d 207, 209 (7th Cir. 2013)
(“We note with disapproval that the Board without explanation
3
Congress
established
the
Congressional–Executive
Commission on China in 2000 “as a bipartite body, consisting of
federal
legislators
and
executive-branch
officials,
whose
purpose in part is to ‘monitor the development of the rule of
law in the People’s Republic of China.’” Jiali Tang v. Synutra
Int’l, Inc., 656 F.3d 242, 247 n.4 (4th Cir. 2011) (quoting 22
U.S.C. § 6912(c)).
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systematically ignores the annual reports of the Congressional–
Executive Commission on China, several of which we have cited,
even
though
they
are
pertinent
official
publications
of
the
federal government.”); Ji Cheng Ni v. Holder, 715 F.3d 620, 627
(7th
Cir.
2013)
(“The
Board’s
ongoing
refusal
to
respond
meaningfully to [CECC reports] is difficult to understand.”);
see also Zhu Ying Dong v. U.S. Atty. Gen., No. 12-13673, 2013 WL
6511992, at *1 (11th Cir. December 13, 2013).
The 2009 CECC
Report
abortions
states
sterilizations]
policies
that
in
remains
“[t]he
the
use
of
enforcement
commonplace
[coerced
of
despite
population
provisions
and
planning
for
the
punishment of official abuse outlined in the PRC Population and
Family Planning Law.”
population
planning
J.A. 759.
officials
in
According to this report,
the
Fujian
Province
“are
authorized to take ‘remedial measures’ to deal with ‘out-ofplan’
pregnancies”;
compulsory abortion.”
authorities
“remedial
Id.
continue[d]
to
measures”
is
“synonymous[]
with
In 2008 and 2009, moreover, “[l]ocal
mandate
surgical
sterilization
and
the use of contraception as a means to enforce birth quotas.”
J.A. 215 (emphasis added).
The 2009 CECC Report appears to contradict the 2007 China
Report upon which the IJ and BIA rely so heavily in concluding
that
compulsory
policy is rare.
sterilization
for
violators
of
the
one-child
Yet, neither the IJ nor the BIA explains why
17
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the
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2009
Filed: 02/05/2014
CECC
Report,
a
Pg: 18 of 28
more
recent
official
government
publication, is less persuasive than the 2007 China Report, nor
was there any attempt to reconcile these reports.
There may be
a perfectly reasonable explanation for favoring one report over
the other, or there may be a way to reconcile these seemingly
contradictory
documents.
But
the
BIA
has
not
revealed
its
reasoning, and we are not permitted to guess what the BIA or the
IJ were thinking.
See SEC v. Chenery Corp., 332 U.S. 194, 196
(1947) (“[A] reviewing court . . . must judge the propriety of
[agency] action solely by the grounds invoked by the agency.”).
Second, Li and Chen submitted a copy of a screenshot from a
Fujian
evidence
Province
that
government
Fujian
family
webpage
dated
planning
May
officials
6,
2008,
consider
as
all
couples who have multiple unauthorized births to be in violation
of the one-child policy, even if such births occurred overseas.
See www.fjjsw.gov.cn:8080/html/5/383/9626_200856322.html.
evidence
suggests
that
the
Fujian
Province
“Population
This
and
Procreation Planning Committee” provided a forum for citizens to
submit questions and receive responses about the family planning
policy.
J.A.
824.
In
response
to
a
query
about
the
consequences a returning Fuzhou couple would face after having
two children in the United States, the committee indicated that
they were in violation of provincial family planning regulations
and that “sterilization is mandatory.”
18
J.A. 825.
This evidence
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is significant in that it purports to come directly from the
same Fujian “Population and Procreation Planning Committee” that
is referenced in the 2007 China Report, but it upends the BIA’s
conclusion that there is no danger of sterilization where the
would-be
violator’s
children
were
born
abroad.
See
Qiu
Yun
Chen, 715 F.3d at 212 (explaining that the same Fujian webpage
“cuts the ground out from under what the Board called the ‘key
aspect of this case’—that because [petitioner’s] children were
born abroad, she is in no danger of being forced to undergo
sterilization”).
To be sure, this document may not expressly
contradict the BIA’s finding that “the evidence submitted in
this
case
does
not
document
any
instance
where
enforcement
measures rising to the level of persecution have [already] been
imposed
on
citizens.”
the
parents
of
children
who
are
United
States
But it certainly portends forced sterilization of
the inquiring couple and suggests that other parents of U.S.born children have faced similar persecution. 4
4
Moreover, the affidavit of Renzun Yuan does flatly
contradict the BIA’s characterization of the record evidence, as
it documents an instance of forced sterilization of the father
of U.S.-born children. We also note that the BIA has used this
precise language before when relying on the 2007 China Report to
reject an asylum application from a similarly situated applicant
on the grounds that the record “does not document any instance
where enforcement measures rising to the level of persecution
have been imposed on the parents of children who are United
States citizens.”
Li Ying Zheng v. Holder, 722 F.3d 986, 989
(7th Cir. 2013) (internal quotation marks omitted).
19
Appeal: 12-2279
In
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our
Filed: 02/05/2014
opinion,
the
Pg: 20 of 28
foregoing
contradictory
evidence
is
strong enough that it requires the agency to account for it in a
meaningful way.
The boilerplate language used by the BIA in
discounting
Li
and
demonstrate
that
consideration.
identical
Circuit
the
Chen’s
evidence
agency
gave
Presented
contradictory
has
on
more
with
a
it
one
more
record
documentary
than
was
insufficient
than
occasion
perfunctory
containing
evidence,
to
virtually
the
rejected
the
Seventh
BIA’s
exclusive reliance on the 2007 China Report and remanded for the
BIA to offer an explanation that accounts for such evidence.
See Li Ying Zheng, 722 F.3d at 991; Qiu Yun Chen, 715 F.3d at
214; Ji Cheng Ni, 715 F.3d at 630-31; see also Zhu Ying Dong v.
U.S. Atty. Gen., 2013 WL 6511992, at *1.
We agree with the
thrust of these decisions that petitioners are “entitled to have
the expert agency, the BIA, evaluate in a transparent way the
evidence that [they have] presented” and that “[s]imply stating
that a 2007 document defeats a claim . . . will not do.”
Ji
Cheng Ni, 715 F.3d at 631.
IV.
Chen and Li also seek asylum and withholding of removal
based on their Christian faith.
Again, both Li and Chen were
found to be credible witnesses.
Their task, therefore, was to
establish
that
their
genuine
subjective
fear
of
persecution
based on their religious faith is objectively reasonable, i.e.,
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that
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“[t]here
Filed: 02/05/2014
is
a
8
C.F.R.
persecution,”
Pg: 21 of 28
reasonable
§
possibility
of
suffering
1208.13(b)(2)(B),
and
such
that
“a
reasonable person in like circumstances” would fear religious
persecution.
Ngarurih, 371 F.3d at 187-88.
Chen testified that when she met Li in 2005, he indicated
he
was
a
practicing
Christian
church services with him.
however,
until
2009
regularly
attending
a
talking
to
China,
she
invited
her
to
attend
to
her
neighbors
in
Chen was baptized in 2010 and began
Chinese
Christian
with Li and their children.
removed
he
Chen did not convert to Christianity,
after
Greensboro, North Carolina.
and
would
Church
in
Greensboro
Chen testified that if she is
be
compelled
by
her
beliefs
to
attend an unsanctioned “underground” or “house” church rather
than an “official registered church” that “preach[es] about the
. . . government’s policies.”
J.A. 139, 140.
Chen fears that
her participation in such a church would be discovered by the
government, subjecting her to arrest, torture, and fines.
She
also fears that the government would force her to renounce her
participation in any unsanctioned church.
Chen’s fear is based
to a great extent on the experience of her mother, who Chen
testified
2009.
was
persecuted
based
on
her
church
affiliation
in
According to Chen, her mother was one of eight members of
an underground church to be arrested.
Chen testified that her
mother was detained for six days, during which time she was
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slapped in the face and forced to sign a written guarantee that
she would cease participating in her church.
government
also
imposed
on
her
mother
a
Chen indicated the
significant
fine
of
2,500 renminbi (RMB).
Li testified that he was a practicing Christian before he
left
China
and
attended
Fujian Province.
an
unsanctioned
house
church
in
the
Li testified that in March 2001, officials
from the Public Security Bureau came to his home to arrest him
for participating in the church but that he was able to elude
arrest.
Li left China shortly thereafter and arrived in the
United States in June 2001.
He testified that he subsequently
learned from his sister that authorities looked for him after
the 2001 incident, but that he did not have any information
suggesting
that
they
have
looked
for
him
recently.
Li
was
baptized in September 2001 after arriving in the United States,
and
he
verified
that
he
attends
church
with
Chen
and
their
children.
Like Chen, Li indicated that his fear of being persecuted
on account of his religion was made real because of what he and
Chen were told happened to his mother-in-law in 2009 as a result
of her affiliation with an unsanctioned church.
And, like Chen,
Li
will
stated
that
if
he
returns
to
China,
he
attend
an
unsanctioned house church, for which he believes he will suffer
official retribution including arrest and torture.
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Li
Doc: 40
and
Filed: 02/05/2014
Chen
also
testify at the hearing.
called
Pg: 23 of 28
their
pastor,
Steven
Chang,
to
Chang confirmed that he is the pastor
of a non-denominational Chinese Christian church in Greensboro
and that, as of the date of the asylum hearing, Chen and Li had
been attending the church for approximately one year.
indicated
that
he
was
generally
familiar
with
the
Chang
plight
of
Christian house churches because Chang had visited in China with
missionaries financially supported by his church.
experience,
harassment
Chang
of
indicated
unsanctioned
that
government
congregations
Based on his
interference
tended
to
proportionally with the visibility of the congregation.
and
increase
Thus, a
house church with fifty congregants or fewer might conduct its
services relatively unimpeded by the government, especially if
it operated in a large metropolitan area.
areas,
Chang
observed,
it
without attracting attention.
is
more
In less populated
difficult
to
congregate
Chang noted additionally that the
zealousness with which government officials police unsanctioned
religious activities varies by location.
Chang indicated he had
never been to Chen and Li’s native Fujian Province, and he did
not offer observations specifically regarding the treatment of
Christians who attend unsanctioned churches there.
The IJ found that the applicants failed to establish that
their fear of future persecution on account of their Christian
faith
was
objectively
reasonable.
23
Relying
on
background
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materials published by the State Department, the IJ found that
“while participation in unsanctioned Christian churches, such as
house churches, is not approved by the Chinese government, those
that do participate are not generally persecuted.”
J.A. 83.
The IJ noted that according to the 2007 China Report, house
churches,
though
not
officially
approved,
are
“quietly
tolerated” as long as they remain “small and unobtrusive.”
J.A.
83.
2010
Citing
estimates
from
the
State
Department’s
International Religious Freedom Report, the IJ observed there
are as many as 50-70 million Christians in China who practice
their
faith
in
connection
with
unsanctioned
house
churches.
Additionally, the IJ was unconvinced that the treatment suffered
by
Chen’s
mother
reflected
widespread
persecution
of
house
church congregants in Chen’s home town because, according to the
IJ, Chen’s mother continued to attend a house church after her
arrest and experienced no further trouble.
Relying
on
the
same
background
materials
reporting
on
religious freedoms in China, the BIA affirmed the IJ’s finding
that Li and Chen failed to establish a reasonable possibility
that they would be persecuted because of their Christian faith.
The BIA noted that the record did not support the IJ’s statement
that Chen’s mother had continued to attend a house church in
China, but it concluded that this error “[did] not undercut the
[IJ]’s reasoned conclusion that the respondents do not have an
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objectively reasonable fear of persecution in China based on
their religion.”
Chen
and
reasonable
J.A. 7.
Li
fear
argue
of
that
they
religious
established
persecution
an
objectively
through
both
the
general background materials published by the State Department
and
specific
evidence
that
they
will
risk
persecution
by
attending home churches in their respective home towns in the
Fujian Province.
Because the BIA denied asylum based on the
conclusion that Chen and Li failed to carry their evidentiary
burden, we must not only conclude that the evidence presented
sufficed to prove an objectively reasonable fear of religious
persecution,
but
also
that
the
“evidence
presented
was
so
compelling that no reasonable factfinder could fail to find”
that
a
reasonable
possibility
of
such
persecution
existed.
Dankam, 495 F.3d at 119 (emphasis added) (internal quotation
marks omitted).
While Chen and Li presented some contrary evidence, that
evidence
is
not
so
compelling
agency’s factual determinations.
that
we
cannot
defer
to
the
First, we disagree with Chen
and Li that the State Department’s 2010 International Religious
Freedom Report and 2007 China Report support their claim for
religious asylum.
isolated
cases
of
Although these materials certainly reported
official
harassment,
the
general
picture
presented by both reports was simply that official treatment of
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Christians
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who
attend
Pg: 26 of 28
unregistered
house
churches
varies
substantially based on locale and that such Christians in many
regions practice their religion without interference.
As noted
by both the IJ and the BIA, Steve Chang, the applicants’ pastor
who testified on their behalf at the asylum hearing, agreed with
the general assessment that house churches are able to operate
undisturbed in many areas of China.
not
directed
us
to
any
portion
of
Moreover, Chen and Li have
these
reports
suggesting
widespread persecution of Christians attending house churches in
the Fujian Province.
There was scant evidence presented specifically showing the
persecution of Christians attending house churches in the Fujian
Province.
Primarily,
this
included
the
testimony
of
the
petitioners themselves regarding the arrest and abuse of Chen’s
mother, as well as her mother’s written statement regarding the
incident.
Chen’s mother, however, attended a house church in
Chen’s hometown of Mei Dong Village in the Mei Hua Town area of
Chang Le City; Chen testified that if she and Li are removed,
they will live in and attend a house church in Li’s hometown of
Shangdao
Village
of
the
Mawei
District
of
Fuzhou
City.
Li
testified that officials unsuccessfully attempted to arrest him
in 2001 for attending a house church while he still lived in
China.
Li provided no testimony indicating that house church
congregants in the Mawei District were persecuted regularly or
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even intermittently, and he conceded that he had no reason to
believe that government officials were still looking for him.
In sum, viewing the record as a whole, we cannot say that
the evidence compels us to conclude that there is a reasonable
possibility that either Chen or Li will suffer persecution on
account of their religious faith if they return to China.
Thus,
we cannot disturb the BIA’s conclusion that Li and Chen failed
to
establish
a
well-founded
fear
of
future
persecution.
Consequently, Chen and Li are not entitled to relief on the
BIA’s denial of religious asylum.
On a final note, having found substantial evidence supports
the agency’s denial of religious asylum, we necessarily uphold
the
denial
of
Chen
and
Li’s
application
for
removal on account of their religious faith.
1231(b)(3).
withholding
of
See 8 U.S.C. §
“Because the burden of proof for withholding of
removal is higher than for asylum—even though the facts that
must be proved are the same—an applicant who is ineligible for
asylum
is
necessarily
under § 1231(b)(3).”
ineligible
for
withholding
of
removal
Camara v. Ashcroft, 378 F.3d 361, 367 (4th
Cir. 2004).
V.
For the foregoing reasons, we grant the petition for review
as it relates to the BIA’s denial of asylum and withholding of
removal based on the petitioners’ fear of being subjected to
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involuntary sterilization under China’s one-child policy, and we
remand that particular claim for the agency to reevaluate it in
accordance with this opinion.
In conducting its analysis on
remand, the BIA should account for, at a minimum, (1) the 2009
CECC
Report,
(2)
the
evidence
relating
to
the
“Robert
Lin”
inquiry on the website of the Fujian Province Population and
Planning Committee, and (3) the affidavit of Renzun Yuan.
We
deny the petition for review, however, as it relates to the
BIA’s denial of relief based on petitioners’ claim that they
will be persecuted on account of their Christian faith if they
return to China.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN PART
28
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