Zhou Hua Zhu v. U.S. Attorney Gen.

• Citation: 703 F.3d 1303
• Decision Date: 04 January 2013
• Docket Number: No. 11–13266.,11–13266.
• Parties: ZHOU HUA ZHU, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

703 F.3d 1303

ZHOU HUA ZHU, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 11–13266.

United States Court of Appeals, Eleventh Circuit.

Jan. 4, 2013.

Theodore N. Cox, Yanfei Shen, Law Office of Theodore N. Cox, New York City, for Petitioner.

Sabatino F. Leo, Joanna L. Watson, David V. Bernal, Jeffery R. Leist, Ernesto Horacio Molina, Jr., Krystal Samuels, OIL, U.S. Dept. of Justice, Eric Holder, Jr., U.S. Atty. General's Office, Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before MARCUS and PRYOR, Circuit Judges, and FRIEDMAN,^* District Judge.

MARCUS, Circuit Judge:

Petitioner Zhou Hua Zhu seeks review of the Board of Immigration Appeals (“BIA”) decision denying him asylum and ordering him removed to the People's Republic of China. At issue in this appeal is whether the BIA erred when it overturned the immigration judge's (“IJ”) factual findings—particularly the finding that Zhu would likely be forcibly sterilized upon returning to China—not through the prism of clear error review, but rather after its own de novo consideration of the evidence. Under the relevant regulation, 8 C.F.R. § 1003.1(d)(3), the BIA is empowered to review an IJ's factual findings for clear error only. After thorough review, we conclude that the BIA committed legal error by making its own de novo factual findings. We, therefore, vacate the BIA's decision and remand so that the BIA may review the IJ's decision under the proper clear error standard.

I.

A.

Petitioner Zhou Hua Zhu is a native and citizen of the People's Republic of China and was born in Fujian Province. Zhu entered the United States without inspection. On September 8, 1998, the government commenced removal proceedings against him. Initially, Zhu requested asylum and withholding of removal relief due to religious persecution. On October 8, 1998, an IJ denied his application for relief and ordered Zhu removed to China.

Zhu, however, remained in the United States and eventually had three children here. Zhu then submitted a motion to file a successive asylum application. Zhu argued that, as a Chinese citizen who had more than one child, he would be subject to forcible sterilization and a heavy fine if returned to China. Therefore, he was eligible for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”).

On October 28, 2009, and November 9, 2009, the IJ held hearings on Zhu's application for relief. Zhu testified to the followingfacts. He is married and has three children. The oldest son, Alvin, was born on December 25, 2002. Alvin suffers from autism and requires personalized treatment. Zhu's other son, Jody, was born on October 26, 2003. His daughter Sherry was born on May 14, 2009. Zhu feared persecution based on China's family planning policy. According to Zhu, Chinese citizens in Fujian with two or more children are sterilized and required to pay a fine. He had heard accounts from relatives and acquaintances who the Chinese government sterilized for having two or more children. His sister-in-law Shen Cho Shin was forcibly sterilized after the birth of her second child. His friend Chen Ca Sin's wife and a cousin's wife, Ling Jing Zhou, were also forcibly sterilized, the latter on June 11, 2009, for having two children. According to Zhu, the family planning policy would apply to him because he remains a Chinese citizen and, under the Chinese Nationality Act, the Chinese Government considers Zhu's American-born children to be Chinese citizens. The Chinese government at one point required his sons to obtain Chinese travel documents when they traveled to China.

Zhu further testified that, after the birth of his daughter, he asked his family to contact the local village committee and ask about the consequences of having three children. In August 2009, the committee delivered a reply letter, which stated that Zhu must be sterilized because he has three children. The letter also required Zhu to report to the family planning bureau within two weeks of returning to China. Zhu presented this letter at the hearing. Zhu also testified that the government levies heavy fines on those who have more than one child. Zhu did not know exactly what the fine would be but estimated it to be 100,000 yuan or more. His earning potential in China would be only 500 yuan a month, which would make it extremely difficult to pay the fine and provide specialized medical and educational care for his eldest son.

Zhu provided documentary evidence establishing the birth of his three children in the United States as well as evidence showing Alvin suffers from autism. Regarding the family planning policy, Zhu submitted individualized evidence including the letter from the local village committee. Zhu also provided other documentary evidence, including letters from individuals in China and official government publications from Fujian Province. In addition, Zhu provided U.S. government publications on country conditions in China, including reports from the State Department and the Congressional–Executive Commission on China. Finally, Zhu provided an affidavit from Dr. Flora Sapio, which disputed information in the State Department's 2007 Profile of Asylum Claims for China.

B.

On November 9, 2009, the IJ granted Zhu's application and found him eligible for asylum based on his well-founded fear of persecution in China. The IJ specifically found Zhu's testimony “credible and consistent.” The IJ found that “family planning officials have indicated in records that were submitted to the Court that [Zhu] would be sterilized. This document has not been proven to be incorrect in any meaningful way.” The IJ also found that Zhu's American-born children were counted under China's family planning policy, because Zhu adduced evidence that other similarly situated individuals were subject to the family planning policy. The IJ expressed some uncertainty regarding whether the male parent, i.e., Zhu, would be sterilized. However, the IJ stated there was no evidence that the Chinese government would not sterilize the male parent. Thus, the IJ reiterated his findingsthat Zhu, “if he were to return to China, would be subject to the family planning policy,” and that “it appear[ed] reasonable ... that the policy would, in fact, be applied to him personally.” The IJ then determined that Zhu had demonstrated a well-founded fear of persecution on this ground and granted his application for asylum. The Department of Homeland Security (“DHS”) appealed the IJ's decision.

On June 29, 2011, the BIA overturned the IJ's decision based on its determination that “the record does not establish that [Zhu] faces a reasonable possibility of being sterilized or otherwise persecuted for having had children while in the [U.S.].” The BIA cast its decision as a legal determination regarding “whether specific facts are sufficient to meet a legal standard such as a ‘well-founded fear,’ ” and therefore proceeded “under de novo review” and with the assumption it could “give different weight to the evidence from that given by the [IJ].” When considering the documentary evidence de novo, the BIA stated it gave less weight to the evidence upon which the IJ had relied and more weight to the State Department's report on country conditions, which did not indicate coercive population control in China and more specifically in Fujian Province. In doing so, the BIA relied on its decision in In re H–L–H– & Z–Y–Z–, 25 I. & N. Dec. 209, 211 (B.I.A.2010), in which the BIA explicitly held that it reviewed de novo the question of whether respondents faced a “reasonable possibility” of future harms such as forcible sterilization.

The BIA specifically contradicted two of the IJ's findings. First, the BIA stated at several junctures that it did not believe Zhu faced “a reasonable possibility of being sterilized.” Second, the BIA found that China's family planning policy likely would not count Zhu's American-born children against the one-child limit. Taken together, the BIA denied “there is a policy of forced sterilization of parents who return to China with children who were born outside of that country.” Thus, the BIA concluded that Zhu had “failed to carry his burden of establishing he has a well-founded fear of persecution in China based upon the birth of his United States citizen children,” and denied his applications for asylum, withholding of removal, and CAT relief. Zhu timely appealed that decision to this Court.

II.

We review “only the BIA's decision,” except to the extent that it “expressly adopt[s] the IJ's opinion or reasoning.” Imelda v. U.S. Att'y Gen., 611 F.3d 724, 727 (11th Cir.2010). Legal and constitutional questions receive de novo review. Poveda v. U.S. Att'y Gen., 692 F.3d 1168, 1172 (11th Cir.2012). However, this Court must defer to the BIA's permissible construction of ambiguous terms in the Immigration and Nationality Act (“INA”) under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Poveda, 692 F.3d at 1176. In addition, the BIA's interpretation of ambiguity in its own regulations warrants deference under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). See Li Shan Chen v. U.S. Att'y Gen., 672 F.3d 961, 965 n. 2 (11th Cir.2011). This Court reviews factual determinations under the substantial evidence test. Thus, this Court must affirm if the BIA's decision “is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Imelda, 611 F.3d at 727 (internal quotation marks omitted). Under this standard, reversal requires finding “that the record not only supports reversal, but compels it.” Id. at 728 (quoting Mendoza v. U.S. Att'y Gen., 327 F.3d 1283, 1287 (11th Cir.2003)).

A.

We first consider the government's position that the BIA may review...