In re C-C-, Interim Decision No. 3530.

• Decision Date: 23 March 2006
• Docket Number: Interim Decision No. 3530.
• Citation: 23 I&N Dec. 899
• Parties: In re C-C-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

23 I&N Dec. 899

In re C-C-, Respondent.

Interim Decision No. 3530.

Board of Immigration Appeals.

Decided March 23, 2006.

An alien seeking to reopen removal proceedings based on a claim that the birth of a second child in the United States will result in the alien's forced sterilization in China cannot establish prima facie eligibility for relief where the evidence submitted with the motion and the relevant country conditions reports do not indicate that Chinese nationals returning to that country with foreign-born children have been subjected to forced sterilization in the alien's home province. Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004), distinguished.

FOR RESPONDENT: Peter D. Lobel, Esquire, New York, New York.

BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members.

PAULEY, Board Member.

This case was last before us on April 29, 2005, when we dismissed the respondent's appeal from an Immigration Judge's denial of her applications for asylum and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3) (2000), and for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"), pursuant to 8 C.F.R. § 1208.16(c) (2005). On July 25, 2005, the respondent, a native and citizen of China, filed a motion to reopen based on the birth of her second child, who was born in the United States.¹ Inasmuch as the respondent's motion was filed within 90 days of our April 29, 2005, decision, we find that the motion is timely filed. See 8 C.F.R. § 1003.2(c)(2) (2005). The motion to reopen will be denied.

In order for a motion to reopen to be granted, the respondent must establish prima facie eligibility for relief. See Matter of Coelho, 20 I&N Dec. 464, 472 (BIA 1992). The United States Court of Appeals for the Second Circuit has stated that a showing of prima facie eligibility for relief is made when there is "`a realistic chance'" that the alien will be able to establish eligibility for relief. Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (quoting Guo v. Ashcroft, 386 F.3d 556, 563-64 (3d Cir. 2004)). In her timely motion, the respondent requests reopening based on the birth of her second child and her assertion that she will be sterilized if she returns to China.² The respondent contends that we should reopen the proceedings in light of Guo v. Ashcroft, supra. However, that decision of the Third Circuit is not binding case law in the Second Circuit, in whose jurisdiction this case lies. Moreover, we find that Guo v. Ashcroft is distinguishable from the instant case.

The alien in Guo v. Ashcroft, supra, had two children who were born in the United States about a year and a half apart. The record reflects that the respondent's first child was born in 1998 and her second child was born more than 6 years later in 2005. This age differential is significant because it bears on the objective reasonableness of the respondent's fear that she will be found to be in violation of China's population control policy and will be subjected to forced sterilization. China's population control policy generally allows individuals to seek permission to have a second child after a 4-year period. See Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, China Country Reports on Human Rights Practices - 2005 (Mar. 8, 2006), available at http://www.state.gov/g/drl/rls/hrrpt/2005/61605.htm [hereinafter 2005 Country Reports]; see also Committees on Foreign Relations and International Relations, Country Reports on Human Rights Practices for 2004 682, 694 (Joint Comm. Print 2005) [hereinafter 2004 Country Reports]. Because the respondent's children were born more than 6 years apart, her situation is clearly different from that of the alien in Guo v. Ashcroft, notwithstanding that she has not received permission for a second child.

The Third Circuit found in Guo v. Ashcroft, supra, at 565, that an affidavit by a retired demographer, Dr. John Aird, who is recently deceased, was sufficient to establish a prima facie case for reopening, noting that the affidavit was in large part devoted to discrediting the Department of State's April 1998 Profile on China. See Bureau of Democracy, Human Rights and Labor, U.S. Dep't of State, China: Profile of Asylum Claims and Country Conditions (Apr. 1998). The respondent has also submitted an affidavit from Dr. Aird with her motion to reopen. For the following reasons, however, we find that the affidavit does not establish the prima facie showing of eligibility for asylum that is required for reopening.

We first observe that Dr. Aird's affidavit is not based on personal knowledge of conditions in China, but rather on a review of documents concerning events and practices in that country. In that regard, the affidavit provides only generalized statements that Chinese citizens who entered the United States illegally would be subject to the same punishments that apply to Chinese couples who violate the family planning laws in China. No example of a woman being sterilized because she returned to China with a child born abroad is cited in the affidavit. Furthermore, the affidavit does not provide any specific evidence of forced sterilization in the case of an alien with two children returning to the Zhejiang province, where the respondent resided.

The affidavit by Dr. Aird mainly cites information from the 1980s and 1990s to support the conclusion that the respondent would be forcibly sterilized upon returning to China because of her foreign-born child. For example, the affidavit refers to an incident in 1988 when a Chinese couple living abroad asked for permission to give birth to a second child and was told by family planning officials that their unauthorized child could jeopardize their factory's plans for expansion and result in punishment to the workforce. The affidavit also includes a citation to an exchange of official correspondence between the Fuzhou municipal family planning authorities and the Fujian provincial family planning authorities as to what should be done about a couple who had returned to China with a second child born in the United States without permission. According to the affidavit, the couple was told that they were subject to sanctions and penalties applied under the Fujian provincial family planning regulations. However, the affidavit contains no specific information on the application of the family planning policy to Chinese citizens returning to the Zhejiang province with children born abroad.

The Aird affidavit only briefly discusses the 2004 Profile of Asylum Claims and Country Conditions as it relates to citizens returning to China with foreign-born children. See Bureau of Democracy, Human Rights and Labor, U.S. Dep't of State, China: Profile of Asylum Claims and Country Conditions 26 (June 2004) [hereinafter 2004 Profile]. The affidavit takes issue with the statement in the 2004 Profile that American diplomats are unaware of any cases in which returnees from the United States were forced to undergo sterilization upon their return. We note, however, that this statement is consistent with reports on China's population control policy from other governments.³ Moreover, although the affidavit claims that forced surgeries occur, again, it contains no evidence that returnees have been sterilized.

We also note that the latest documents on country conditions issued by the State Department conflict with the views of Dr. Aird.⁴ See Bureau of Democracy, Human Rights and Labor, U.S. Dep't of State, China: Profile of Asylum Claims and Country Conditions 28 (Oct. 2005) [hereinafter 2005 Profile]. The 2005 Profile states that it is now national policy that no action will be taken against students where both parents resided overseas for at least a year and have two children when they return to China. Furthermore, children living permanently overseas are not counted for birth planning purposes when their parents return to China.

According to the 2005 Profile, "Generally, unless one of the parents is an `overseas Chinese' (i.e. has residency rights in another country), a family with a U.S.-born...