Lian Ying Zhang v. Attorney General of the United States
Opinion of the Court
OPINION
Lian Ying Zhang petitions for review of the October 27, 2008 decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny her petition for review.
Following a hearing, the IJ denied all relief, finding that Zhang failed to demonstrate that she held a well-founded fear of persecution. Specifically, the IJ found that although Zhang had established through testimony, affidavits, and other evidence that she had a genuine subjective fear of persecution upon her return to China, she failed to show that she had an objectively reasonable fear that she would be forcibly sterilized. The IJ noted Zhang’s evidence purporting to show that she would have to register her American-born child in China, including the affidavit of one individual, unknown to Zhang personally, who returned to Fujian Province with two foreign-born children and was forced to undergo sterilization. Relying on the State Department’s Profile of Asylum Claims for China for 2005 (“2005 Profile”), and an opinion letter dated January 7, 2007, from Julieta Vails Noyes, Director of the State Department’s Office of Multilateral and Global Affairs (“2007 Opinion Letter”), the IJ decided that “the matter of whether [Zhang’s] U.S. child will even be counted against her total for family planning purposes is, at best, disputed.” The IJ was unpersuaded that Zhang would be singled out for persecution if she returned to China. The IJ found the affidavits of Zhang’s cousins, attesting that they had been forcibly sterilized after having two children, to be largely irrelevant because these individuals did not have foreign-bom children.
The IJ also found that Zhang failed to show that Fujian Province engaged in a pattern or practice of forced sterilization in cases like her own. The IJ found the bulk of Zhang’s documentary evidence to be unpersuasive because it was outdated, addressed circumstances in a different province, had been discredited (as in the case of the Aird Affidavit), or because it did not tend to show that Fujian Province engaged in mandatory forced sterilization or abortion as opposed to assessing “social compensation fees” against violators of family planning policy. While the IJ acknowledged that the State Department’s 2002 “Travel Tips” document stated that American-born children would be treated as Chinese citizens if their Chinese parents had no immigration status in the United States, she noted that the document did not address specifically whether the children would be “counted” against the parents for family planning purposes. Relying again on the 2005 Profile and the 2007 Opinion Letter, the IJ found that, in any
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C. § 1252(a). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review both decisions under a substantial evidence standard. See Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this deferential standard of review, we will uphold the findings of the BIA “unless the evidence not only supports a contrary conclusion, but compels it.” Id. at 484.
To qualify for asylum, an applicant must demonstrate, among other things, a well-founded fear of persecution based on both a subjectively genuine fear of persecution and an objectively reasonable possibility of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). To establish eligibility for withholding of removal, an applicant must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993) (quoting INS v. Stevie, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)).
In her petition for review, Zhang claims that the IJ mischaracterized the evidence, which, Zhang asserts, established that she would be subject to forced sterilization if she returned to China with her American-born child. We disagree. According to the 2005 Profile and the 2007 Opinion Letter upon which the IJ and the BIA relied, birth planning policy in China is established nationally; the enforcement of the policy is left to the provinces and local villages and can vary widely from province to province and from village to village. (See JA-1366; 1410.) The State Department acknowledges that forced sterilization and abortions, which violate national law, continue to be documented.
Zhang also protests that the assessment of harsh and exorbitant social compensation fees alone constitutes persecution in her case. The BIA implicitly rejected
Next, Zhang contends that the BIA failed to properly consider the documents she submitted at the immigration hearing in support of her claim.
Zhang also argues that the BIA failed to remand her case to the IJ to consider several documents that Zhang submitted for the first time on appeal. The BIA declined to consider the additional documents, noting that its review was “limited to the record as was constituted before the Immigration Judge.” See 8 C.F.R. §§ 1003.1 (d)(3)(i) and (iv) (“Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals.”). We cannot fault the BIA for not considering a remand to the IJ for consideration of the additional
In sum, we cannot say that the evidence compels a conclusion contrary to that of the BIA. See Yu v. Att’y Gen., 513 F.3d 346, 348-49 (holding that State Department Country Reports constituted substantial evidence supporting the BIA’s finding that petitioner’s fear of forced sterilization upon returning to China was not objectively reasonable); Chen, 376 F.3d at 223 (requiring asylum applicant to demonstrate by “credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution”). Accordingly, we will deny the petition for review.
. Zhang gave birth to her daughter, Zoe Chen, in 2006.
. In the opinion, the IJ mistakenly referred to the 2006 Profile of Asylum Claims as "Exhibit 10.”
. In Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), the BIA discussed at length the State Department’s 2005 and 2006 Profile of Asylum Claims and its 2005 and 2006 Country Reports on China. The 2006 State Department Asylum Claims Profile and Country Report are not in evidence in Zhang's case.
. In Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), the BIA discussed at length the State Department's 2005 and 2006 Profile of Asylum Claims and its 2005 and 2006 Country Reports on China. The 2006 State Department Asylum Claims Profile and Country Report are not in evidence in Zhang's case.
. Among other evidence she claims the BIA failed to consider, Zhang emphasizes Dr. Aird’s affidavit and accompanying materials. (Petitioner's Brief at 18-20.) In Yu v. Attorney General, 513 F.3d 346, 348-49 (3d Cir. 2008), we agreed with the BIA that the State Department’s Profile of Asylum Claims and its Country Report on China, both issued in 2005, tended to cast doubt on the utility of Dr. Aird's frequently-cited affidavit, which provided only generalized statements regarding China’s family planning policies and did not specifically address the issue of couples returning to China with foreign-born children.
. We note that twenty-one of the thirty documents contained in the “new background material” appear to be in the record already. (Compare background-index, JA at 90-97, with indices of documents submitted at the removal hearing, JA at 1662-1665 & 1264-65.)
Reference
- Full Case Name
- LIAN YING ZHANG v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published