                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2008

Yu v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 06-3933




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                                      PRECEDENTIAL




IN THE UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   NO. 06-3933


        XIU JIN YU; YONG SHENG LIU,
                  Petitioners

                         v.

ATTORNEY GENERAL OF THE UNITED STATES


 On Petition for Review of an Order of the Board of
                Immigration Appeals
       Nos. A79-458-432 and A79-309-522
  Immigration Judge: Hon. Charles M. Honeyman




 Submitted Pursuant to Third Circuit LAR 34.1(a)
               December 11, 2007
         BEFORE: RENDELL and STAPLETON,
        Circuit Judges, and IRENAS, District Judge*

              (Opinion Filed: January 15, 2008)


Henry Zhang
Zhang and Asociates
325 Broadway, Suite 303
New York, NY 10007
 Attorney for Petitioners

John A. Nolet
U.S. Department of Justice
Tax Division
P.O. Box 52
Washington, DC 20044
 and
Michael P. Lindemann
Jonathan Potter
Paul F. Stone
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
 Attorneys for Respondent


*Hon. Joseph E. Irenas, Senior District Judge for the District
of New Jersey, sitting by designation.

                               2
                 OPINION OF THE COURT




STAPLETON, Circuit Judge:

        Two petitioners, a husband and wife from China’s Fujian
province, seek asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”), based on their
fear that one or both of them will be forcibly sterilized for
violating China’s family planning regime if they are forced to
return. Specifically, the couple alleges that they are at risk
because they had a second child while residing in the United
States. The BIA determined that petitioners had failed to show
that their fear of sterilization was an objectively reasonable one
and denied relief. This petition for review followed.

                                I.

       In order to prove the objective reasonableness of their
claimed fear of sterilization before the BIA, petitioners relied
almost exclusively on an affidavit prepared by retired
demographer Dr. John Aird. In that affidavit, Dr. Aird opined
that Chinese couples returning to China with unauthorized
children “cannot expect to be exempt” from the family planning
policy because:

       to ignore their violations would tend to undermine
       the enforcement of the rules in China. The

                                3
       Chinese authorities cannot afford to let rumors get
       out that couples of childbearing age can evade the
       one-child limit by leaving the country illegally,
       having unauthorized children in foreign countries
       and returning home without suffering the standard
       penalties . . . . the concerns of Chinese couples
       over what awaits them if they are repatriated with
       children born abroad without official permission
       are probably in most cases well-founded.

App. at 321-22.

       The BIA concluded that “the evidence presented was
insufficient to establish that there was a national and uniform
policy of sterilizing returning Chinese citizens who have more
than one child” or “that [petitioners] belong[ed] to some
subgroup, such as those residing in a particular province or
region, against whom coercive enforcement of the ‘one child’
program remains systematic.” In re Yu, A79 458 432 (BIA Aug.
14, 2006). For both of these propositions, the BIA cited to its
recent decision in Matter of C-C-, 23 I. & N. Dec. 899 (BIA
2006), which it found to be indistinguishable.

                               II.

        It is the petitioner’s burden to establish “a well-founded
fear of persecution,” which encompasses “threats to life,
confinement, torture, and economic restrictions so severe that
they constitute a threat to life or freedom,” including forced
sterilization. 8 U.S.C. § 1101(a)(42)(B); Abdille v. Ashcroft,
242 F.3d 477, 492 (3d Cir. 2001); Fatin v. I.N.S., 12 F.3d 1233,

                                4
1240 (3d Cir. 1993). If what the petitioner fears is properly
characterized as persecution, the claim’s viability turns on
whether it is shown that this fear is well-founded. Petitioners
must demonstrate “a subjective fear . . . that is supported by
objective evidence that persecution is a reasonable possibility.”
Balasubramanrim v. I.N.S., 143 F.3d 157, 165 (3d Cir. 1998).
Whether or not a petitioner has made this showing is a
determination for the BIA to make; we are charged only with
ascertaining whether its conclusion is supported by substantial
evidence. The BIA’s determination will not be disturbed unless
“any reasonable adjudicator would be compelled to conclude to
the contrary.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.
2003); 8 U.S.C. § 1252(b)(4)(B).

        The sole issue before us is whether petitioners’ claimed
fear of forcible sterilization is a reasonable one. With respect to
that issue, the record in this case is identical to the record before
the BIA in Matter of C-C-; both petitioners relied almost
exclusively on an affidavit of Dr. Aird setting forth essentially
the same opinions for the same reasons, and the government’s
responding evidence in both cases consisted of the same State
Department reports.1

     In Matter of C-C-, the BIA concluded that “the latest
documents on country conditions issued by the State Department


    1
     Although the record in Matter of C-C- included the 2005
State Department Country Report and the instant record only
contains the corresponding 2004 State Department Country
Report, both reports are, in relevant part, substantially the same.

                                 5
conflict with the views of Dr. Aird.” 23 I. & N. Dec. 899, 902
(BIA 2006). It noted that the most recent State Department
Country Reports advised “that central government policy
‘formally prohibits the use of physical coercion to compel
persons to submit to abortion or sterilization.’” Id. at 903. The
BIA further pointed to the 2004 State Department China Profile
which reported that American diplomats residing in China were
not aware of a single incident where an individual returning with
foreign-born children was forcibly sterilized. The BIA found
this report consistent with reports on Chinese population control
policy from other governments, including the United Kingdom
and Canada. In contrast, the BIA explained that it was hesitant
to credit Dr. Aird’s conclusions about the current state of
Chinese affairs because his affidavit was not based on personal
knowledge, but rather on a pool of documentary evidence from
the 1980s and 1990s. Id. at 901-02. In addition, the BIA
explained that Dr. Aird never spoke directly to the matter at
hand -- the likelihood of forcible sterilization in cases where “an
alien with two children” was returning to China. Indeed, the
“affidavit provide[d] only generalized statements that Chinese
citizens who entered the United States illegally would be subject
to the same punishments that apply to Chinese couples. . . . No
example of a woman being sterilized because she returned to
China with a child born abroad [was] cited in the affidavit.” Id.
Consequently, in Matter of C-C-, the BIA concluded:

              Having considered all of the relevant
       evidence, we find that the State Department
       reports are more persuasive than the Aird affidavit
       in determining the chances that the respondent
       will be sterilized if she returns to China. See

                                6
       Wang v. BIA, 437 F.3d 270, 276 (2d Cir. 2006)
       (noting that “a balancing of the 2004 Country
       Report against the Aird affidavit’s criticism of
       that report . . . would lead to the conclusion . . .
       that [the alien] has not shown he would face
       anything more than economic sanctions if
       returned to China”).

23 I. & N. Dec. at 903. Because it viewed the cases as
indistinguishable, the BIA reached the same conclusion in this
case. In re Yu, A79 458 432 (BIA Aug. 14, 2006).

       This Court has repeatedly recognized that State
Department reports may constitute substantial evidence, see,
e.g., Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004),
and the BIA’s explanation of why it decided to credit these
reports over the Aird affidavit is well reasoned. It necessarily
follows that the BIA’s resolution of this matter was supported
by substantial evidence.

       Contrary to petitioners’ suggestion, the conclusion we
reach is not inconsistent with our decision in Guo v. Ashcroft,
386 F.3d 556, 565 (3d Cir. 2004), where we held that a similar
affidavit of Dr. Aird could provide a prima facie case for
reopening a removal proceeding. Id. at 565 (“We conclude that
where a motion to reopen is accompanied by substantial support
of the character provided by the Aird affidavit, the
Government’s introduction of a five-year-old State Department
report, without more, hardly undermines Guo’s prima facie
showing.”). In this case, the issue before the BIA was not
whether petitioners made a prima facie showing for reopening,

                                7
but whether they had carried their ultimate burden of persuasion
in making an asylum claim. Our role in this latter context is
limited to determining whether there is substantial evidence to
support the BIA’s conclusion with respect to that matter. As
noted, we conclude that there is.

        Since the threshold for asylum is lower than for
protection under the withholding of removal or CAT provisions,
rejection of the petitioners’ asylum claims necessarily requires
that their CAT and withholding claims be rejected as well. See,
e.g., I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987);
Janusiak v. I.N.S., 947 F.2d 46, 47 (3d Cir. 1991).

                              IV.

       For these reasons the petition for review will be denied.2




   2
     After the IJ’s decision was affirmed, the petitioners had a
third child. Although the petitioners rely heavily on this
development in their brief, it has never been the subject of any
BIA proceedings and therefore is not properly before us. See,
e.g., 8 U.S.C. § 1252(b)(4)(A) (a court may only decide the
petition on the administrative record on which the order of
removal is based).

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