Zheng v. Gonzales, 03-4025.

• Decision Date: 28 July 2005
• Docket Number: No. 03-4025.,03-4025.
• Citation: 415 F.3d 955
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Feng Ying ZHENG, Petitioner, v. Alberto GONZALES,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent.

415 F.3d 955

Feng Ying ZHENG, Petitioner, v. Alberto GONZALES,¹ Attorney General of the United States, Respondent.

No. 03-4025.

United States Court of Appeals, Eighth Circuit.

Submitted: December 17, 2004.

Filed: July 28, 2005.

COPYRIGHT MATERIAL OMITTED

Elizabeth Holmes, argued, Bloomington, MN, for petitioner.

Anthony Payne, U.S. Dept. of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C, argued, respondent.

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

BYE, Circuit Judge.

Feng Ying Zheng, a citizen of the People's Republic of China, claims she fears persecution if removed to China because of the country's coercive population control policies. Zheng seeks review of the Board of Immigration Appeal's (BIA) final order affirming the Immigration Judge's (IJ) decision denying her application for asylum, withholding of removal, and protection under Article III of the Convention Against Torture (CAT). Because we find the BIA erred by failing to consider significant evidence supporting Zheng's claim, we conclude the denial of relief was not supported by substantial evidence. Accordingly, we vacate the BIA's order of removal and remand for further proceedings.

I

Zheng was born on March 12, 1970, in Guantou Village, Lian Jiang City, in the Fujian Province of China. She entered the United States without inspection on September 12, 1993. On May 3, 1996, Zheng married Chang Qin Lin. Zheng and her husband presently have three United States citizen children: a son, born January 19, 1997; and two daughters, born September 13, 2000, and July 12, 2003. Zheng's sister and brother live in New York; both have been granted asylum based on China's birth control policies.

On January 3, 1995, Zheng filed an application for asylum. On July 22, 1999, the Immigration and Naturalization Service, now the Bureau of Immigration and Customs Enforcement within the Department of Homeland Security, commenced removal proceedings against Zheng by issuing a Notice to Appear. The IJ held an evidentiary hearing on Zheng's application for asylum, withholding of removal, and relief under the CAT on July 18, 2001. Zheng, her husband, and her sister testified.

At the hearing, Zheng testified she feared returning to China because she believes upon return she will be arrested immediately and either she or her husband will be forcibly sterilized because she had a second child when her first child was a boy. She testified she and her husband would like to have more children and do not practice any form of birth control. She testified she fears she will be subject to forced sterilization or abortion because of China's family planning policies. Zheng further testified her fear of returning to China is also based on the experiences of her sister, who, after becoming pregnant for the second time, was arrested and given an injection causing an abortion. Zheng stated that prior to her departure from China she did not have problems with China's birth control policy.

Zheng's sister, Feng Zhen Zheng, also testified at the hearing. Zheng's sister testified she was also an applicant for asylum based on China's birth control policy and had appeared before an immigration judge in New York in 2001. The sister testified that when she was six months and seven days pregnant in China, she was forced to abort her second pregnancy and lost a female fetus on July 7, 1998, at Lianjian Hospital in Lianjian City. She testified after she got pregnant she was hiding at her mother's home in Guantou, which is thirty minutes from Lianjian Hospital. Someone reported her and she was arrested at her mother's house by an officer from the birth planning office who then sent her to Lianjian Hospital to have an abortion. Her first child was a boy.

The parties also submitted numerous documents concerning China's population control policies, including the United States Department of State 2001 Country Report on Human Rights Practices in China, United States Department of State's 1998 Profile of Asylum Claims and Country Conditions for China, March 14, 2000, Report by the Canadian government, and an April 2002 Assessment on China prepared by the United Kingdom. Additionally, Zheng submitted an affidavit of John Shields Aird, a specialist on demographic developments and population policy in China, who is also a retired demographer formerly employed at the U.S. Bureau of Census. Aird's affidavit refutes alleged misrepresentations concerning China's coercive population control policy in Department of State reports and documents issued by the Canadian government.

The IJ denied Zheng's application for asylum, withholding of removal, and relief under the CAT on July 12, 2002. The IJ found Zheng had not suffered past persecution in China. The IJ further found Zheng had a subjective fear of future persecution, but determined Zheng's fear of persecution was not objectively reasonable. Because Zheng failed to meet her burden to demonstrate her eligibility for asylum, the IJ concluded Zheng failed to establish her entitlement to withholding of removal. The IJ also found Zheng failed to meet her burden under the CAT.

The IJ found both Zheng and her husband to be "generally credible." Additionally, the IJ found Zheng's sister to be "generally credible." However the IJ stated she would "not give great weight to the sister's testimony." The following explanation was provided: "[T]his Court did not have the sister's asylum application before this Court to determine the credibility of her own application, with respect to how it affects the respondent's case." Accordingly, the IJ did not analyze Zheng's sister's testimony concerning her forced abortion in determining whether Zheng's fear was objectively reasonable.

Although the IJ found Zheng had a subjective fear of persecution in China, the IJ concluded "the documentation in the record does not objectively support this fear." In determining Zheng's fear was not objectively reasonable, the IJ explained: "The current information in the record regarding China reflects that the forced coercive family planning policies are not being followed in Fujian Province and that Fujian Province is lax on enforcing family planning policies." The IJ found Zheng "failed to also prove to the Court that she would be persecuted because she has had two children born in the United States." The IJ also found "the respondent has failed to show that the threat of persecution exists countrywide," noting "[a]ccording to the country information, there are clearly areas in China in which a person, who wants to have two or more children, even three or four children, can live and have that number of children."

In reaching its finding, the IJ relied primarily on the 2002 UK Assessment and the 2000 report by the Canadian government. According to the 2002 UK Assessment, "[f]or differing reasons, most authorities agree that the Fujian Province is lax in implementing the birth control policies" and "[t]he authorities work by incentive schemes rather than coercion, with forced abortion and sterilization no longer tolerated, and efforts to increase the professionalism of family planning workers." The UK Assessment also states "in 1999, there have been signs that the government is beginning to relax its policies in the cities" and "minorities in some rural areas are permitted to have four children." The report prepared by the Canadian government similarly concludes "[t]here is less effective enforcement of the `one-child' policy [in the Fujian Province] than in other parts of China."

Zheng appealed to the BIA arguing the IJ erred in finding Zheng did not establish a well founded fear of future persecution. Zheng also claimed the IJ violated her due process rights to a full and fair hearing. The BIA dismissed the appeal. The BIA found no merit in Zheng's claims that her due process rights were violated. On the merits, the BIA adopted the facts set forth by the IJ and affirmed the IJ's determinations that Zheng failed to establish eligibility for asylum, withholding of removal, and protection under the CAT. Specifically, the BIA found Zheng "failed to establish that she has suffered past persecution on account of a protected ground, or that she has a well-founded fear of persecution if returned to China to include as a result of their coercive population control policies because she has two United States citizen children."

II

We review the BIA's decision as the final decision of the agency. "To the extent ... the BIA adopted the findings or the reasoning of the IJ, we also review the IJ's decision as part of the final agency action." Falaja v. Gonzales, 406 F.3d 1076, 1081 (8th Cir.2005) (citing Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir.2005)). We review the BIA's determination that Zheng failed to establish she is eligible for asylum under a substantial evidence standard. Lau May Sui v. Ashcroft, 395 F.3d 863, 869 (8th Cir.2005) (citing S-Cheng v. Ashcroft, 380 F.3d 320, 322-23 (8th Cir.2004)). Under the substantial evidence standard, we will not overturn the BIA's decision unless we find, based on the evidence, "no reasonable fact-finder could arrive at the conclusion reached by the BIA." Id. (quoting S-Cheng, 380 F.3d at 323).

The Immigration and Nationality Act provides the Attorney General the discretion to grant asylum to an alien who is a "refugee." 8 U.S.C. § 1158(b). 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 race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1101(a)(42)(A). Congress has expanded the definition of "refugee" to include "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." Id. § 1101(a)(42...