                                      PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                       No. 09-3459
                       ___________


                      YING CHEN;
                      QIANG CHEN,
                               Petitioners
                          v.

   ATTORNEY GENERAL OF THE UNITED STATES,
                             Respondent
      ____________________________________

        On Petition for Review of an Order of the
             Board of Immigration Appeals
      (Agency Nos. A075-710-413 & A089-252-003)
      Immigration Judge: Honorable Henry S. Dogin
       ____________________________________

                 Argued February 14, 2011

          Before: SLOVITER, HARDIMAN and
               ALDISERT, Circuit Judges

              (Opinion filed March 18, 2011)
                        _________

Yee Ling Poon (Argued)
Law Offices of Yee Ling Poon, LLC
New York, New York 10038

      Attorney for Petitioners
Jacob A. Bashyrov
Linda Y. Cheng
Katharine Clark (Argued)
Eric H. Holder, Jr.
Thomas W. Hussey
United States Department of Justice
Office of Immigration Litigation
Civil Division
Washington, D.C. 20044

       Attorneys for Respondent

                        ___________

                 OPINION OF THE COURT
                      ___________

SLOVITER, Circuit Judge.

        Ying Chen and her husband Qiang Chen (collectively,
“petitioners”) seek review of a final removal order entered by
the Board of Immigration Appeals (“BIA”). At issue is the
frequently encountered issue of asylum for the Chinese
parents of American born children whose birth exceeds the
maximum under China‟s population control rules.

        Mr. Chen, a native and citizen of China, Fujian
Province, entered the United States in 1996 without
inspection. Ms. Chen, also from China, Fujian Province,
entered in 2003 without inspection. The couple married here
in 2005 and have had two sons, born in 2005 and 2008, both
United States citizens. In 2008, after the Department of
Homeland Security served Notices to Appear, petitioners
conceded their removability before an Immigration Judge
(“IJ”). They applied for asylum, withholding of removal,
Convention Against Torture (“CAT”) relief, and,
alternatively, voluntary departure. Petitioners – principally
Ms. Chen, the lead applicant and sole witness to testify before
the IJ – claim that they fear persecution upon return to China




                               2
for having violated the one-child policy in that Ms. Chen will
be forcibly sterilized and/or face economic persecution.1

       The IJ denied relief. Among other things, the IJ found
that Ms. Chen‟s stated desire to have a third child upon return
to China is speculative, and that, under the holding in Matter
of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), she failed to show
a well-founded fear that she would be forcibly sterilized upon
returning with her two United States citizen children. The IJ
also denied withholding of removal and found no evidence
showing a likelihood that Ms. Chen will be subjected to
torture upon return.

        Petitioners filed a motion with the IJ to reopen the
record and for reconsideration. They submitted an affidavit
from an aunt of Ms. Chen, who stated that she was forcibly
sterilized upon returning to China with two children that she
had while in Japan. The IJ denied petitioners‟ motion, noting
that they had ample opportunity to present all evidence at the
merits hearing, and that the evidence from the aunt was
available and could have been presented previously.

        The BIA affirmed and dismissed petitioners‟ appeal,
finding that petitioners failed to show an objective, well-
founded fear of persecution. The BIA agreed with the IJ that
petitioners do not warrant asylum based on the birth of their
two children, and it rejected petitioners‟ efforts to distinguish
their case from Matter of J-W-S-. The BIA rejected, in
particular, the argument that petitioners‟ children will be
considered Chinese citizens for purposes of enforcing
population control policy. The BIA also affirmed the IJ‟s
decision to reject, for lack of authentication, a letter that Ms.
Chen‟s mother purportedly had obtained from the local
Village Committee which indicated that Ms. Chen would be
sterilized upon return. Further, the BIA found no evidence to
support petitioners‟ claim that they may suffer economic
persecution, and it held that Ms. Chen had failed to show that

       1
          Ms. Chen also claimed before the IJ that she fears
that the Chinese government will persecute her for having left
illegally with help from a smuggler, but she has not pursued
that contention before this Court.

                                3
she is likely to be tortured, either because she gave birth to
two children or because she illegally emigrated. Finally, the
BIA denied petitioners‟ request for a remand so that the IJ
could consider evidence regarding the aunt‟s sterilization,
holding that the IJ properly refused to reopen the proceedings
to consider evidence that was previously available.
Petitioners timely filed a petition for review in this Court.

        We have jurisdiction under 8 U.S.C. § 1252(a)(1). Our
review is of the BIA‟s decision, although we also review the
IJ‟s decision to the extent that the BIA adopted or deferred to
the IJ‟s analysis. Zhang v. Gonzales, 405 F.3d 150, 155 (3d
Cir. 2005). “We review factual findings, including findings
of persecution and fear of persecution, under the substantial
evidence standard.” Sandie v. Att’y Gen., 562 F.3d 246, 251
(3d Cir. 2009). “Under this deferential standard, findings of
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Id. (quotation
marks omitted).

        Petitioners argue that Ms. Chen established that her
fear of future persecution is well-founded. They contend that
the BIA and the IJ engaged in “generic reliance” on the
holding in Matter of J-W-S- and failed to consider evidence
showing that petitioners‟ children will be treated as Chinese
citizens, which gives rise to their fear that Ms. Chen will be
sterilized or subjected to onerous fines for having had more
than one child. Petitioners‟ Br. at 24.

        The BIA‟s recent opinion in Matter of H-L-H- & Z-Y-
Z-, 25 I. & N. Dec. 209 (BIA 2010), contains a
comprehensive discussion that persuasively addresses many
of the issues before us. This court has not previously
considered in a precedential opinion the BIA‟s latest view of
this issue.

       The respondents there, like the Chens here, were
natives and citizens of China who hailed from the Fujian
Province and had two United States citizen children. Id. at
210. They claimed that if they returned to China, and
specifically the Fujian Province, the female respondent would
be subject to forced sterilization as well as a significant fine.
Id. The IJ agreed and granted the respondent‟s application for

                               4
asylum. Id. The BIA vacated the opinion of the IJ,
concluding that the respondent had not shown that she
possessed a well-founded fear of forcible sterilization or other
sanctions rising to the level of persecution. Id. at 218.

       In doing so, the BIA noted that State Department
reports on country conditions, including the Profiles of
Asylum Claims & Country Conditions, are “highly probative
evidence and are usually the best source of information on
conditions in foreign nations.” Id. at 213. With respect to the
discussion of forced sterilization in China and Fujian
Province in particular, in the May 2007 China: Profile of
Asylum Claims and Country Conditions (“2007 Profile”), the
BIA stated:

       Although acknowledging that there were “reportedly”
       forced sterilizations in Fujian in 2006, the State
       Department observes that Consulate General officials
       visiting Fujian have found that coercion through public
       and other pressure has been used, but they did not find
       any cases of physical force employed in connection
       with abortion or sterilization. In interviews with visa
       applicants from Fujian representing a wide cross-
       section of society, Consulate General officers have
       noted that many violators of the one-child policy paid
       fines, but they found no evidence of forced abortion or
       property confiscation. According to the Fujian
       Provincial Birth Planning Committee, there have been
       no cases of forced abortion or sterilization in Fujian in
       the last 10 years.

Id. at 214 (internal citations omitted).

       Similarly, with respect to the 2007 Profile discussion
regarding the economic sanctions that might be imposed, the
BIA stated: 2

       2
         Although here the Government at oral argument
acknowledged that the 2007 Profile was not submitted into
evidence, we agree that the BIA considered the 2007 Profile
by citing to Matter of J-W-S- and did not err in doing so. The
BIA may take administrative notice of official documents
prepared by the Department of State, such as the 2007 Profile.
                                5
       The State Department‟s 2007 Profile indicates that an
       economic penalty in the form of a social compensation
       fee may be imposed upon a birth planning violator.
       However, the respondent has not met her burden of
       establishing that payment of such a fee would put her
       at such a “severe economic disadvantage” that it would
       amount to persecution. The 2007 Profile indicates that
       there is wide variation in the amount of social
       compensation fees and the severity of hardship they
       impose for out-of-plan births. It also notes that
       couples unable to pay the fee immediately may be
       allowed to pay in installments.

Id. at 216 (internal citations omitted).

        In sum, the BIA in Matter of H-L-H- & Z-Y-Z-
concluded that the evidence presented “indicates that physical
coercion to achieve compliance with family planning goals is
uncommon and unsanctioned by China‟s national laws and
that the overall policy is much more heavily reliant on
incentives and economic penalties.” Id. at 218. With regard
to those incentives and penalties, the BIA held that “the
respondent has not shown that her locality represents a
current exception to the general rules in which the Chinese
Government relies on a variety of measures short of
persecution to enforce its population control policy.” Id.

        With Matter of H-L-H- & Z-Y-Z- in mind, we find
substantial evidence in the record here to support the denial of
asylum. To establish eligibility for asylum, petitioners had to
prove either past persecution (which they have not claimed)
or “a well-founded fear of future persecution on account of a
statutorily enumerated ground.” Espinosa-Cortez v. Att’y
Gen., 607 F.3d 101, 107 (3d Cir. 2010). A “well-founded
fear” must be both subjectively and objectively reasonable.
Id. at 108. To establish objective reasonableness, petitioners
must show that “a reasonable person in the alien‟s
circumstances would fear persecution if returned to [China].”

8 C.F.R. § 1003.1(d)(3)(iv); BIA: Procedural Reforms to
Improve Case Mgmt., 67 Fed. Reg., 54,878, 54,892 (Aug. 26,
2002).

                                6
Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). “„A
person who has a well founded fear that he or she will be
forced to abort a pregnancy or undergo involuntary
sterilization or is subject to persecution for failure, refusal, or
resistance to undergo such a procedure shall be deemed to
have a well founded fear of persecution on account of
political opinion.‟” Zheng v. Att’y Gen., 549 F.3d 260, 266
(3d Cir. 2008) (alterations omitted) (quoting 8 U.S.C. §
1101(a)(42)(B)).

        The BIA agreed with the IJ‟s analysis and found that
the birth of petitioners‟ two children does not warrant asylum,
citing both this Court‟s decision in Yu v. Att’y Gen., 513 F.3d
346, 349 (3d Cir. 2008) (holding that substantial evidence
supported determination that petitioners failed to show that
fear of sterilization was objectively reasonable), and its own
decision in Matter of J-W-S-, 24 I. & N. Dec. at 189-90
(rejecting evidence that petitioner had well-founded fear of
forcible sterilization based on returning to China with U.S.
born children). Contrary to petitioners‟ suggestion, the BIA
and the IJ did not ignore their evidence or fail to conduct a
case-specific analysis of the evidence.3 Moreover, the record


       3
         Petitioners cite Zheng, in support of their argument
that the agency‟s analysis of the evidence was insufficient. In
Zheng, this Court granted an alien‟s petition for review where
“the BIA did little more than quote passages from its earlier
decision in J-W-S- without identifying-let alone discussing-
the various statements contained in the record before it that
[petitioner] submitted in support of his motion to reopen.”
549 F.3d at 268. Here, the IJ sufficiently considered the
relevant documents and evidence of record. For example, on
the central question of whether petitioners‟ children will be
considered Chinese citizens for family planning purposes, the
IJ expressly discussed and analyzed the State Department
Report, the Law Library of Congress Report, a Chinese
passport issued to petitioners‟ eldest child, evidence regarding
China‟s nationality laws, a purported notice from the local
Village Committee, letters from Ms. Chen‟s female relatives
and others, and Ms. Chen‟s testimony. The BIA expressly
agreed with the IJ‟s analysis of this evidence and stated that it
was likewise unpersuaded that petitioners were entitled to
                                 7
supports the finding that Ms. Chen does not have a well-
founded fear of future persecution.

        The IJ cited evidence in the record from the State
Department Reports and a Law Library of Congress Report
indicating that petitioners‟ children will not be considered
Chinese nationals upon return. As we have explained, “State
Department reports may constitute substantial evidence.” Yu,
513 F.3d at 349. The BIA expressly rejected petitioners‟
efforts to distinguish the evidence in their case from Matter of
J-W-S- and Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA
2007), and was not persuaded that petitioners‟ children will
be considered Chinese citizens.4 Petitioners have not shown
that the record compels a contrary finding. Nor do petitioners
challenge the IJ‟s finding that their stated desire to have a
third child upon return to China is “speculative” and
insufficient to warrant relief. Given the record, we cannot
disturb the finding that Ms. Chen failed to establish an
objective, well-founded fear of forcible sterilization.

        Petitioners also challenge the finding that they failed to
establish that Ms. Chen will be subjected to fines rising to the
level of persecution. They argue that “[e]vidence suggests
that Ms. Chen will face onerous fines, either to compel
sterilization or in addition to sterilization.” Petitioners‟ Br. at
43. The BIA noted that petitioners had failed to provide any

relief. We are satisfied that petitioners‟ evidence was
meaningfully considered.
       4
         Although Chen argues that a 2003 administrative
opinion from the Fujian Province and a 2003 Department of
State Consular Information Sheet on China support her claim
that her United States-born children would be counted for
local family planning purposes, there was substantial
evidence in the record to support the contrary conclusion.
Moreover, we agree with the Government that “[e]ven if [the
Chens] showed evidence compelling the contrary conclusion
that their United States citizen children would be considered
Chinese nationals, [the Chens] have not shown an objectively
reasonable well-founded fear of sterilization in China based
on the record.” Respondent‟s Br. at 23.

                                8
evidence as to their individual financial circumstances, and it
found that they had failed carry their burden to prove
economic restraints so severe as to constitute persecution.
Substantial evidence supports these findings. For example,
the 2007 State Department Country Report on Human Rights
Practices for China, upon which petitioners rely, reflects a
variation in the amount of social compensation fees and the
severity of hardship that the Chinese government imposes for
a violation of family planning policy. Thus, while we have
held that the “the deliberate imposition of severe economic
disadvantage which threatens a petitioner‟s life or freedom
may constitute persecution,” Li v. Att’y Gen., 400 F.3d 157,
168 (3d Cir. 2005), the record here does not compel a finding
that Ms. Chen herself faces the prospect of fines that will rise
to this level.

        Petitioners also argue that the BIA and the IJ erred in
rejecting as unauthenticated the notice from Ms. Chen‟s
Village Committee. According to petitioners, the notice,
which was purportedly obtained by Ms. Chen‟s mother,
establishes to a reasonable probability that Ms. Chen will be
forcibly sterilized in her local community, and she suggests
that her credible testimony alone sufficed to authenticate the
document. The BIA, however, properly observed that the
Village Committee document had not been authenticated by
any means at all, such as an affidavit from Ms. Chen‟s mother
as to how the document was obtained. Thus, the IJ properly
discounted the document. Further, the BIA properly applied
the rule that, “even where an applicant is credible,
corroboration may be required if the applicant is to meet her
burden of proof.” Chen v. Gonzales, 434 F.3d 212, 218 (3d
Cir. 2005).

        In short, we discern no reversible error in the denial of
petitioners‟ claims for asylum. Because withholding of
removal carries a higher burden of proof than asylum, the
request for withholding was properly denied, as well. See
Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). Finally,
because petitioners do not challenge the denial of CAT relief
in their brief before this Court, we deem that issue waived
and do not address it. See Lie v. Ashcroft, 396 F.3d 530, 532
n.1 (3d Cir. 2005).


                                9
        We have considered whether our recent decision in
Huang v. Att’y Gen., 620 F.3d 372 (3d Cir. 2010), warrants a
remand of this matter to the BIA, but we conclude that it does
not. In Huang, the BIA reversed an IJ‟s decision to grant
asylum based on a finding that the petitioner had an
objectively well-founded fear that she would be forcibly
sterilized upon returning to China with her two children born
in the United States. This Court observed that, in reversing
the IJ‟s determination that Huang‟s fear was well-founded,
the BIA had “failed to address any evidence [of record] that,
if credited, would lend support to Huang‟s asserted fear of
sterilization, and thus [the BIA] decision does not reflect a
consideration of the record as a whole.” Id. at 388. We noted
that, “[w]hile we are not suggesting that the BIA must discuss
every piece of evidence mentioned by an asylum applicant, it
may not ignore evidence favorable to the alien.” Id.
Consequently, because the BIA‟s analysis in Huang did “little
more than cherry-pick a few pieces of evidence, state why
that evidence does not support a well-founded fear of
persecution, and conclude that Huang‟s asylum petition
therefore lacks merit,” we remanded for the BIA to conduct a
proper review and to determine from the evidence of record
whether there is a reasonable possibility of forced sterilization
and whether Huang‟s fear is objectively reasonable. Id.

        In the present case, we do not find a similar flaw in the
agency‟s analysis. As discussed, the IJ sufficiently
considered the relevant documents and evidence of record.
Unlike Huang, where “the BIA discussed none of [the record]
evidence” suggesting that Huang might face forced
sterilization upon return to China, id., the BIA here stated that
it had considered the evidence that petitioners submitted in an
effort to distinguish their case from Matter of J-W-S-, but it
agreed with the IJ‟s analysis and finding that petitioners‟
evidence was unpersuasive and insufficient to warrant relief.
Further, the record here does not reflect that the agency
“ignor[ed] evidence favorable to the alien,” Huang, 620 F.3d
at 388; rather, the IJ and the BIA considered petitioners‟
evidence but rejected it on the ground that it did not establish
an objectively well-founded fear of forcible sterilization.
Given this record, and given that substantial evidence in the
record supports the agency determination, we conclude that a
remand of this matter is unwarranted.

                               10
       We have also considered petitioners‟ remaining
arguments (including their challenge to the denial of the
motions to reopen and remand so that they could present
evidence from Ms. Chen‟s aunt – evidence that the BIA fairly
characterized as “previously available”), but we find those
arguments without merit and in need of no separate
discussion.

      For the foregoing reasons, we will deny the petition for
review.




                             11
