Zhou Zheng v. Holder, 08-2041.

• Decision Date: 30 June 2009
• Docket Number: No. 08-2041.,08-2041.
• Court: U.S. Court of Appeals — First Circuit
• Parties: ZHOU ZHENG, Petitioner, v. Eric H. HOLDER, Jr., Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.

570 F.3d 438

ZHOU ZHENG, Petitioner, v. Eric H. HOLDER, Jr., Attorney General,^* Respondent.

No. 08-2041.

United States Court of Appeals, First Circuit.

Submitted May 6, 2009.

Decided June 30, 2009.

Stephanie F. Dyson and Dyson Law, P.C. on brief for petitioner.

Michael F. Hertz, Acting Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, and Siu P. Wong, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before: TORRUELLA, SELYA and TASHIMA,^** Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Zhou Zheng, is a Chinese national. She seeks judicial review of a final order of the Board of Immigration Appeals (BIA) that affirmed both an order of removal and the concomitant denial of a cross-application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). Concluding, as we do, that the BIA's decision is supported by substantial evidence, we deny the petition for judicial review.

The facts are straightforward. The petitioner entered the United States illegally in December of 1998. While living in Massachusetts, she married and bore two children (one in 2002 and the other in 2005).

On January 12, 2005, the petitioner applied for asylum and withholding of removal.¹ Following an asylum interview, federal authorities denied her application and referred the matter of her status to the immigration court. See 8 U.S.C. § 1227(a)(1)(B). Removal proceedings began.

The petitioner appeared in the immigration court on October 24, 2006. She conceded removability but cross-applied for asylum, withholding of removal, and protection under the CAT.

The petitioner testified that, even though she was unwed and had no children at the time, she left China in order to avoid that country's repressive family planning restrictions. Now that she had two children, she feared that a return to her homeland would lead either to forcible sterilization or some disadvantage to her children. In support, the petitioner presented affidavits from several family members who claimed to have been subjected to involuntary abortions or sterilization. In this regard, the petitioner testified that her mother was forcibly sterilized following the birth of her third child twenty-five years earlier. She added, through testimony and other evidence, that her cousin's wife was sterilized in 1986 after having two children; that a different cousin's wife was sterilized in 2004 after having two children; that her sister-in-law's husband was forcibly sterilized in 1997 after siring two children;² and that her sister was forced to undergo an abortion in 2000. Finally, the government introduced a 2005 State Department country conditions report (2005 Profile).

This compendium of evidence did not impress the immigration judge (IJ). In his view, the petitioner had established a genuine fear of forced sterilization, but she had failed to establish that this subjective fear was objectively reasonable. Consequently, the IJ denied the petitioner's requests for relief and ordered her removal.

The petitioner appealed to the BIA, arguing that the 2005 Profile showed that Chinese citizens returning to their homeland were given "no special treatment" in terms of family planning policies. She also argued that simply because American diplomats were "unaware" of any forced sterilizations imposed upon returnees with children born in the United States did not mean that such incidents did not occur.

The BIA affirmed the IJ's decree in all respects. It held that the petitioner had not presented "specific and individualized evidence" sufficient to show that she would likely be forced to undergo sterilization either in China generally or in her hometown of Changle City (in Fujian Province) specifically. It further held that the petitioner had not shown that "any economic sanctions that may be imposed on her would rise to the level of persecution."

This timely petition for judicial review followed. We have jurisdiction under 8 U.S.C. § 1252(a)(1).

In removal cases, judicial review ordinarily focuses on the decision of the BIA. Stroni v. Gonzales, 454 F.3d 82, 86 (1st Cir.2006). That approach obtains when the BIA has conducted an independent evaluation of the record and rested its decision on a self-generated rationale. See Acevedo-Aguilar v. Mukasey, 517 F.3d 8, 9 (1st Cir.2008). This is such a case. The devoir of persuasion abides with the petitioner. See Pulisir v. Mukasey, 524 F.3d 302, 308 (1st Cir.2008); see also 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a).

The applicable standard of review is the familiar substantial evidence standard. See, e.g., Sok v. Mukasey, 526 F.3d 48, 52 (1st Cir.2008). Absent an error of law,³ this "highly deferential" standard results in a reversal only if the record would compel a reasonable factfinder to reach a different outcome. López de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007); see Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.2007). In conducting this tamisage, a reviewing court accepts the findings of fact on which the agency's determination rests so long as those findings are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

To establish eligibility for asylum, an alien must demonstrate either past persecution or a well-founded fear of future persecution due to race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.16(b)(2); see also Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir.2009). Because the petitioner does not claim to have been the victim of past persecution, she must prove that she has a well-founded fear of future persecution based on one of the five statutorily protected grounds enumerated above. See 8 U.S.C. § 1158(b)(1); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004).

Proof of a well-founded fear entails a showing that the fear is both subjectively felt and objectively reasonable. Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir.2007). A well-founded fear of forced abortion or sterilization is considered a qualifying fear of persecution based on political opinion. 8 U.S.C. § 1101(a)(42); Xie Mei Zheng v. Gonzales, 475 F.3d 30, 34 (1st Cir.2007).

The BIA concluded that the petitioner had not proven that she had this well-founded fear of future persecution. The petitioner demurs; she offers several reasons why the BIA's conclusion was unsupported by substantial evidence. To her way of thinking, the BIA misinterpreted the 2005 Profile, failed to give adequate weight to precedent, and abused its discretion in referring to the State Department's 2007 country conditions report (2007 Profile) without pausing to take administrative notice thereof. We examine these claims sequentially.

In support of her contention that the BIA did not properly weigh the evidence, the petitioner relies heavily on the unpublished decision in Cao v. Bureau of Citizenship and Immigration Services, 272 Fed.Appx. 14 (2d Cir.2008). In that non-precedential opinion, see 2d Cir. R. 32.1(b), the court of appeals remanded because the BIA had "mischaracterized" the 2005 Profile, Cao, 272 Fed.Appx. at 15. But Cao is, at best, only tangentially relevant to the case at hand. The BIA's error there was case-specific, and the court of Cao's origin—the Second Circuit—subsequently concluded that the 2005 Profile furnishes no concrete evidence that sterilization is forced upon citizens returning to Fujian Province with American-born children. See Shao v. Mukasey, 546 F.3d 138, 164 (2d Cir.2008) (noting that "[t]he significance of the [2005] report is highlighted by the fact that, despite the voluminous documentary records developed in these ... cases, none of the petitioners points us to evidence of any person being forcibly sterilized on removal to China based on having two children"); see also Huang v. U.S. INS, 421 F.3d 125, 128-129 (2d Cir.2005).

More importantly, the significance of Cao pales in comparison to our own circuit precedent (which is, of course, binding on this panel). We recently adjudicated a petition for review embodying facts nearly identical to those presented here. See Yen Zheng Zheng v. Mukasey, 546 F.3d 70 (1st Cir.2008). Zheng, not Cao, is the beacon by which we must steer. See United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991) (explaining that, within a multi-panel circuit, panels ordinarily are bound by prior panel decisions closely on point).

Zheng, like this case,⁴ involved a Chinese woman from Fujian Province who was the mother of two American-born children. 546 F.3d at 71. There, as here, the alien claimed a well-founded fear of future persecution in the form of forced sterilization. Id. at 72. There as here, she alleged that the BIA had misread the country conditions reports. Id. at 72-73. There, as here, the alien relied mainly on anecdotal evidence to support her claim.⁵ Id. at 72. The BIA denied relief and affirmed an order of removal. We upheld that decision, ruling that nothing in the record compelled a contrary conclusion. Id. at 73.

The petitioner labors to distinguish Zheng. Her most loudly bruited claim is that the case arose in a different procedural posture; the alien was seeking an order for reinstatement of her appeal. See id. at 71; see also Liu v. Mukasey, 553 F.3d 37, 39 n. 1 (1st Cir.2009) (discussing standard of review for reinstatement of appeal). That is true, but it is only half of the story. In Zheng, the court found expressly that the alien had not "establish[ed] a prima facie case for the [granting of asylum]." 546 F.3d at 73. This was so, the court explained, because the evidence did not call into legitimate question the BIA's determination that, among other things, she lacked a well-founded fear of future persecution. Id.

This finding makes Zheng...