Yang v. Gonzales, 03-3997.

• Decision Date: 04 November 2005
• Docket Number: No. 03-3997.,03-3997.
• Citation: 427 F.3d 1117
• Parties: Tu Kai YANG, Xue Lin Wu, Petitioners, v. Alberto GONZALES,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

427 F.3d 1117

Tu Kai YANG, Xue Lin Wu, Petitioners, v. Alberto GONZALES,¹ Attorney General of the United States, Respondents.

No. 03-3997.

United States Court of Appeals, Eighth Circuit.

Submitted: September 16, 2005.

Filed: November 4, 2005.

Bruno Joseph Bembi, argued, Hempstead, NY, for petitioner.

Anthony P. Nicastro, argued, U.S. DOJ, Washington, DC (Peter D. Keisler, Emily Anne Radford, and Keith Bernstein, on the brief), respondent.

Before BYE, HEANEY, and COLLOTON, Circuit Judges.

HEANEY, Circuit Judge.

Tu Kai Yang (Yang) and his wife, Xue Lin Wu (Wu), citizens of China, appeal the Board of Immigration Appeals's (BIA) November 20, 2003 decision, affirming and adopting the Immigration Judge's (IJ) October 12, 2001 decision. The IJ denied petitioners' application for asylum, withholding of deportation and removal, and request for relief under the Convention Against Torture (CAT). Yang and Wu respectively concede removability/deportability, but maintain they cannot return to China because they fear persecution for violating China's strict family planning policies. The IJ and the BIA failed to consider specific, direct, and credible evidence that petitioners' fear of future persecution is well-founded, and erred by not granting petitioners' asylum application. We vacate the orders for removal and deportation, and remand for determination of their eligibility for withholding of removal/deportation, and relief under the CAT.²

BACKGROUND

Yang and Wu, Chinese citizens from Fujian Province, separately entered the United States in 1993. Petitioners met and were married in the United States, and have a son and a daughter, both born in the United States. Wu has been pregnant a total of five times, but has had three miscarriages. Petitioners wish to have at least four children. They fear that if they are forced to return to China, they will suffer persecution, specifically forced sterilization or abortions, for violating China's coercive, one-child, family planning policy. Petitioners base their fear on China's official policy and the past forced sterilizations and abortions suffered by several of their siblings and siblings' spouses.

Chinese government authorities are aware, or will be notified, that petitioners have more than one child. If forced to return to China, petitioners will have to re-establish their household by registering with the government, and will be required to report their two children, whom they intend to take with them. Additionally, in her attempt to obtain an authenticated, notarial birth certificate in China, Wu disclosed to the government that she was married in the United States and has two children. Chinese government officials visited her family's home in Fujian Province to verify that she had more than one child. When her brother informed the officials that she has two children and intends to have more, he was told that she would have to follow the family planning policy if she returned to China.

Wu's family is well-known for violating the family planning policy, and thus specifically targeted by government officials. Wu is the youngest of six children, and only her oldest brother and sister, who were married before there was a family planning policy, escaped coercive population control procedures. Her second oldest brother's wife was forcibly sterilized in 1982 after she had two children; her third oldest brother was sterilized in 1986 after having two children; her fourth oldest brother's wife was forced to abort her second child and forcibly fit with a "double ring" contraceptive device; and her second oldest sister's husband was sterilized in 1987. The procedure was unsuccessful and, after they had a third child in 1989, he was ordered sterilized again, but he fled and obtained asylum in the United States.

Two of Yang's three siblings have been directly affected by China's coercive family planning policy. His oldest brother's wife was fit with a "double ring" contraceptive device, and his second oldest brother's wife was forcibly sterilized in 1996. Yang's sister is not subject to the family planning policy because she lives in Hong Kong.

In support of their asylum claim, Yang and Wu also submitted a 2001 affidavit from retired demographic expert John Aird, Senior Research Specialist on China, for the United States Bureau of Census from 1981 through 1985, which described China's family planning policy. According to Aird's affidavit, the standard penalty for a couple who had a second unauthorized child was sterilization of either the husband or the wife, and instances of coercion in family planning in 2000 and 2001 were more extreme than previously reported. Furthermore, returning Chinese emigrants with foreign-born children were not exempt from the family planning policy.

The 1998 Profile of Asylum and Country Conditions for China (the Profile) and the 1999 Country Reports on Human Rights Practices for China (the Report) buttress the Aird affidavit in many respects. According to the Profile, "Chinese officials acknowledge privately that forced abortions and sterilizations still occur in areas where family planning personnel may be uneducated and ill-trained." (R. at 606.) In Fujian Province, the policy prohibits more than one child, although in rural areas, "[a] second child is allowed if the first is a girl [or is disabled], an exception that takes into account the demand for farm labor and the traditional preference for boys." (Id. at 390, 608.) But these exceptions are irrelevant here because petitioners already have a healthy son. Additionally, the Report discusses regulations requiring that "[i]f a couple has two children, those regulations require that either the man or woman undergo sterilization." (Id. at 391.)

Following a hearing on petitioners' claims, the IJ denied relief. The IJ found petitioners' testimony to be credible, but found that both failed to establish past persecution or establish a well-founded fear of future persecution, in spite of the evidence presented to the contrary.

In the instant cases, neither respondent has been subject to [forced sterilization or abortion] in the past. Accordingly, the Respondents' claim based on coercive family planning measures by the Chinese government falls short of establishing past persecution or a well-founded fear of future persecution based on one of the five grounds enumerated in the Act.

(R. at 45 (emphasis added).) In its analysis, the IJ quoted at length from the Report and the Profile. In finding that petitioners failed to meet the burden for asylum, the IJ did not address the applications for withholding of removal/deportation and relief under the CAT.³ The petitioners appealed to the BIA. On November 20, 2003, the BIA dismissed the petitioners' appeal and affirmed and adopted the decision of the IJ. In its brief summary opinion, the BIA referred to the Aird Affidavit, the petitioners' testimony, and the State Department Report in finding that petitioners do not have a well-founded fear of persecution, because petitioners "admit[ed] that they [were] unaware of anyone in their situation of having violated the policy by giving birth to children outside of China." (R. at 738.)

ANALYSIS

This court reviews the BIA's asylum eligibility determinations under the substantial evidence standard, and will overturn the decision only if "we find no reasonable fact-finder could arrive at the conclusion reached by the BIA." S-Cheng v. Ashcroft, 380 F.3d 320, 323 (8th Cir.2004). "Where the BIA adopts and affirms the IJ's opinion, we review the IJ's opinion directly." Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir.2005).

An alien is eligible for asylum if classified as a "refugee." 8 U.S.C. § 1158(b)(1). "A `refugee' is an alien unwilling to return to her home country `because of persecution or a well-founded fear of persecution on account of ... political opinion.'" Zheng v. Gonzales, 415 F.3d 955, 959 (C.A.8th Cir.2005) (quoting 8 U.S.C. § 1101(a)(42)(A)). The term, "refugee," includes "a person who has been forced to abort a pregnancy or to undergo involuntary sterilization . . . and a person who has a well founded fear that he or she will be forced to undergo such a procedure." 8 U.S.C. § 1101(a)(42)(B).

A "well-founded" fear of future persecution is one which is "subjectively genuine and objectively reasonable." Bellido v. Ashcroft, 367 F.3d 840, 843 (8th Cir.2004). Petitioners must "`demonstrate through credible, direct, and specific evidence that a reasonable person in [their] position[s] would fear persecution.'" Zheng, 415 F.3d at 960 (quoting Mwangi v. Ashcroft, 388 F.3d 623, 627 (8th Cir.2004)). To be objectively reasonable, however, it is not necessary "to demonstrate there is a 100% chance, or even a 50% chance, of persecution upon [their] return to [China]." Bellido, 367 F.3d at 845 n. 7. The IJ incorrectly concluded that petitioners' fear of future persecution was not objectively reasonable because they had failed to show they had suffered this kind of action in the past.

In Zheng, this court was presented with a similar asylum petition involving a female Chinese citizen from Fujian Province with three United States-born children. Zheng feared she would be forcibly sterilized because she had violated the coercive family planning policy. Zheng's sister, also an applicant for asylum, testified that she was forced to abort her second pregnancy when she was six months and seven days pregnant. Zheng also submitted an affidavit from John Aird, which refuted "alleged misrepresentations concerning China's coercive population control policy in Department of State reports." Zheng, 415 F.3d at 958.

Zheng's application for asylum and related relief was denied by the IJ. The IJ found Zheng had a subjective fear of future persecution, but determined Zheng's fear of future persecution was not objectively reasonable. Id. The IJ also found Zheng, her husband, and her sister to be generally credible,...