In re Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (I & N 3/26/2010)

• Decision Date: 26 March 2010
• Docket Number: Interim Decision No. 3676.
• Citation: 25 I&N Dec. 209
• Parties: Matter of H-L-H- & Z-Y-Z-, Respondents.
• Court: U.S. DOJ Board of Immigration Appeals

Page 209

25 I&N Dec. 209

Matter of H-L-H- & Z-Y-Z-, Respondents.

Interim Decision No. 3676.

Board of Immigration Appeals.

Decided March 26, 2010.

(1) Whether an alien has presented sufficient evidence to establish a well-founded fear of persecution is a legal determination that is reviewed de novo by the Board of Immigration Appeals.

(2) In order to determine, under de novo review, whether specific facts are sufficient to meet a legal standard such as a "well-founded fear," the Board has authority to give different weight to the evidence from that given by the Immigration Judge.

(3) State Department reports on country conditions are highly probative evidence and are usually the best source of information on conditions in foreign nations.

(4) The evidence presented by the respondents, considered in light of State Department country reports specific to Fujian Province, failed to establish a reasonable possibility that either respondent would be subject to forced sterilization due to having two children born in the United States or would face penalties or sanctions so severe that they would rise to the level of persecution.

FOR RESPONDENT: Richard Tarzia, Esquire, Belle Mead, New Jersey.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael Horowitz, Assistant Chief Counsel.

BEFORE: Board Panel: GRANT, MILLER, and MALPHRUS, Board Members.

MILLER, Board Member.

In a decision dated February 12, 2008, an Immigration Judge found the respondents removable on their own admissions and granted their application for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (2006). The Department of Homeland Security ("DHS") has appealed from that decision. The DHS's appeal will be sustained, the decision of the Immigration Judge will be vacated, and the respondents will be ordered removed from the United States.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondents, who are husband and wife, are natives and citizens of China. They have two United States citizen children, a son born in November 2003 and daughter born in March 2007. The respondents do not claim to have suffered past persecution, or even to have been threatened with persecution in China. However, the female respondent asserts that if she is returned to China, and particularly to Huang Qi Town, Lian Jiang County, in Fujian Province, she has a well-founded fear of persecution as a result of the birth of her two children in the United States.²

In a hearing before the Immigration Judge, the respondent testified that if she is removed to China, she would be forcibly sterilized and fined by Chinese Government officials because she has two children. In support of her asylum application, the respondent submitted an affidavit from her mother. The respondent's mother stated that upon her inquiry to the family planning office of Huang Qi Town, she was informed that if a Chinese national violates the regulation requiring the insertion of an intrauterine device ("IUD") after the first birth and sterilization after the second birth and then returns to China, she will definitely be sterilized and fined 20,000 yuan. The respondent also included statements from friends and other relatives attesting to this policy.

The Immigration Judge found that the respondent was a credible witness and determined that she had established that the family planning authorities who would have jurisdiction over her, i.e., the family planning authorities of Huang Qi Town, located in Lian Jiang County, Fujian Province, would force her to be sterilized and impose a significant fine on her. The Immigration Judge therefore granted the respondent's application for asylum. Having granted asylum, the Immigration Judge did not address the respondent's requests for withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (2006), and 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).

II. ANALYSIS

Section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (2006), includes within the definition of a "refugee" a person who has a well-founded fear that he or she will be forced to undergo involuntary sterilization or will be subject to persecution for failure or refusal to undergo such a procedure or for resistance to a coercive population control program. The DHS challenges the Immigration Judge's determination that a reasonable person in the respondent's circumstances would fear being subjected to a forced sterilization or sanctions rising to the level of persecution upon her return to China.

We review the Immigration Judge's findings of fact, including those relating to credibility, to determine whether they are "clearly erroneous." 8 C.F.R. § 1003.1(d)(3)(i) (2010). We review de novo all other questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof. 8 C.F.R. § 1003.1(d)(3)(ii).

The Immigration Judge's favorable credibility determination is not "clearly erroneous." 8 C.F.R. § 1003.1(d)(3)(i). However, it remains the respondent's burden to establish that a reasonable person in her circumstances would fear being subjected to a forced sterilization or sanctions rising to the level of persecution upon her return to China. See Yong Hao Chen v. U.S. INS, 195 F.3d 198, 204 (4th Cir. 1999) (finding that the alien's fear of persecution based on China's population control policy was not objectively reasonable, because the underlying basis for his fear was "membership in a diffuse class against whom actual persecution" was rare and he failed to show that he and his wife would be individually targeted). Regardless of the policy generally prohibiting the birth of additional children following the birth of a son, to be eligible for relief the respondent must also meet her burden of demonstrating a reasonable possibility that Chinese Government officials would enforce the family planning policy against her through means constituting persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43 (2d Cir. 2008) (finding no legal error in the Board's three-part inquiry requiring the alien to identify a governmental policy implicated by the births at issue, establish that Chinese Government officials would view the births as a violation of the policy, and demonstrate a reasonable possibility that such officials would enforce the policy against the alien through means constituting persecution); Matter of J-H-S-, 24 I&N Dec. 196 (BIA 2007); Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007).

While the Immigration Judge's findings of fact are reviewed under the "clearly erroneous" standard, the question whether the facts are sufficient to establish that the respondent has a well-founded fear of persecution upon return to China is a legal determination that we review de novo. Matter of V-K-, 24 I&N Dec. 500, 501-02 (BIA 2008); 8 C.F.R. § 1003.1(d)(3); see also, e.g., Cubillos v. Holder, 565 F.3d 1054, 1058-89 (8th Cir. 2009). 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 `fact' things that have not yet occurred." Matter of A-S-B-, 24 I&N Dec. 493, 498 (BIA 2008).³ We therefore review de novo the question whether the respondent has 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.

In order to determine, under de novo review, whether specific facts are sufficient to meet a legal standard such as a "well-founded fear," the Board has authority to give different weight to the evidence from that given by the Immigration Judge. Id. at 497; see also Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir. 2008) (stating that the regulation prohibiting the Board from engaging in fact-finding does not "restrict the BIA's powers of review, including its power to weigh and evaluate evidence introduced before the IJ"). This authority is critical to permit the Board to determine whether the facts as found by the Immigration Judge meet the relevant legal standard, including circumstances where anecdotal and subjective evidence is presented to undercut more recent evidence from more established and reliable sources. See Matter of C-C-, 23 I&N Dec. 899, 903 (BIA 2006) (holding that the State Department documents on country conditions warranted greater weight than an affidavit from an expert witness that was not based on first-hand experience and relied on more dated information about Chinese population control policies). This review authority also promotes consistency in the application of legal standards so that cases with similar facts are generally decided in a like manner.⁴

State Department reports on country conditions, including the Profiles of Asylum Claims & Country Conditions, are highly probative evidence and are usually the best source of information on conditions in foreign nations. Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006); Gonahasa v. U.S. INS, 181 F.3d 538, 542 (4th Cir. 1999); Matter of V-T-S-, 21 I&N Dec. 792, 799 (BIA 1997). The reports are accorded "special weight," Aguilar-Ramos v. Holder, 594 F3d. 701,705 n.6 (9th Cir. 2010), because they are based on the collective expertise and experience of the Department of State, which "`has diplomatic and consular representatives throughout the world.'" Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d at 341 (quoting Zamora v. INS, 534 F.2d 1055, 1062 (2d Cir. 1976)). However, this evidence does not "automatically discredit contrary evidence presented by the applicant," and it is critical to also consider and evaluate "`any contrary or...