Hui Lin Huang v. Holder

• Decision Date: 27 March 2012
• Docket Number: 11–3584–ag(Con).,Docket Nos. 10–1263–ag(Lead)
• Citation: 677 F.3d 130
• Parties: HUI LIN HUANG and Zeng Yong Zhou, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

677 F.3d 130

HUI LIN HUANG and Zeng Yong Zhou, Petitioners,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Docket Nos. 10–1263–ag(Lead)

11–3584–ag(Con).

United States Court of Appeals, Second Circuit.

Submitted: Dec. 1, 2011.Decided: March 27, 2012.

Richard Tarzia, Belle Mead, NJ, 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, FL, Matthew Guadagno, Brooklyn, NY, 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, MA, Susham Modi, Immigration and Refugee Advocate, University of Houston Law Center Immigration Clinic, Houston, TX, submitted a brief for amici curiae Law Professors, Instructors, and Practitioners, in support of Petitioners.).

Before: JACOBS, Chief Judge; NEWMAN and LEVAL, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This petition for review of a decision of the Board of Immigration Appeals (“BIA”) primarily raises two issues concerning 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 objectively reasonable well-founded fear of persecution. 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 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 of this policy 300–400 times from radio broadcasts. She testified that she would be forcibly sterilized and also fined 20,000–25,000 RMB for violating the policy, that she 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 this 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 INS v. Cardoza–Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). After explicitly finding Huang to be a credible witness, 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 coercively sterilize her and also impose a significant fine on her.” IJ op. at 10 (emphasis 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 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 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)).

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. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). 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 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 and feared future persecution because of the prior incident. 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...