                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3997
                                   ___________

Tu Kai Yang, Xue Lin Wu,            *
                                    *
             Petitioners,           *
                                    * Petition for Review of an
       v.                           * Order of the Board of
                                    * Immigration Appeals.
                   1
Alberto Gonzales, Attorney General  *
of the United States,               *
                                    *
             Respondents.           *
                                    *
                               ___________

                             Submitted: September 16, 2005
                                Filed: November 4, 2005
                                 ___________

Before BYE, HEANEY, and COLLOTON, Circuit Judges.
                           ___________

HEANEY, Circuit Judge.

       Tu Kai Yang (Yang) and his wife, Xue Lin Wu (Wu), citizens of China, appeal
the Board of Immigration Appeals’s (BIA) November 20, 2003 decision, affirming
and adopting the Immigration Judge’s (IJ) October 12, 2001 decision. The IJ denied
petitioners’ application for asylum, withholding of deportation and removal, and


      1
       Alberto Gonzales has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
request for relief under the Convention Against Torture (CAT). Yang and Wu
respectively concede removability/deportability, but maintain they cannot return to
China because they fear persecution for violating China’s strict family planning
policies. The IJ and the BIA failed to consider specific, direct, and credible evidence
that petitioners’ fear of future persecution is well-founded, and erred by not granting
petitioners’ asylum application. We vacate the orders for removal and deportation,
and remand for determination of their eligibility for withholding of
removal/deportation, and relief under the CAT.2

                                 BACKGROUND

       Yang and Wu, Chinese citizens from Fujian Province, separately entered the
United States in 1993. Petitioners met and were married in the United States, and
have a son and a daughter, both born in the United States. Wu has been pregnant a
total of five times, but has had three miscarriages. Petitioners wish to have at least
four children. They fear that if they are forced to return to China, they will suffer
persecution, specifically forced sterilization or abortions, for violating China’s
coercive, one-child, family planning policy. Petitioners base their fear on China’s
official policy and the past forced sterilizations and abortions suffered by several of
their siblings and siblings’ spouses.

       Chinese government authorities are aware, or will be notified, that petitioners
have more than one child. If forced to return to China, petitioners will have to re-
establish their household by registering with the government, and will be required to
report their two children, whom they intend to take with them. Additionally, in her
attempt to obtain an authenticated, notarial birth certificate in China, Wu disclosed

      2
       The BIA opinion addressed only the asylum matter, and we therefore do not
address the petitioners’ remaining claims. Accordingly, the petitioners have not
waived their right to appellate review of the IJ’s forthcoming determination on the
withholding of removal/deportation and CAT claims.

                                         -2-
to the government that she was married in the United States and has two children.
Chinese government officials visited her family’s home in Fujian Province to verify
that she had more than one child. When her brother informed the officials that she
has two children and intends to have more, he was told that she would have to follow
the family planning policy if she returned to China.

       Wu’s family is well-known for violating the family planning policy, and thus
specifically targeted by government officials. Wu is the youngest of six children, and
only her oldest brother and sister, who were married before there was a family
planning policy, escaped coercive population control procedures. Her second oldest
brother’s wife was forcibly sterilized in 1982 after she had two children; her third
oldest brother was sterilized in 1986 after having two children; her fourth oldest
brother’s wife was forced to abort her second child and forcibly fit with a “double
ring” contraceptive device; and her second oldest sister’s husband was sterilized in
1987. The procedure was unsuccessful and, after they had a third child in 1989, he
was ordered sterilized again, but he fled and obtained asylum in the United States.

      Two of Yang’s three siblings have been directly affected by China’s coercive
family planning policy. His oldest brother’s wife was fit with a “double ring”
contraceptive device, and his second oldest brother’s wife was forcibly sterilized in
1996. Yang’s sister is not subject to the family planning policy because she lives in
Hong Kong.

       In support of their asylum claim, Yang and Wu also submitted a 2001 affidavit
from retired demographic expert John Aird, Senior Research Specialist on China, for
the United States Bureau of Census from 1981 through 1985, which described
China’s family planning policy. According to Aird’s affidavit, the standard penalty
for a couple who had a second unauthorized child was sterilization of either the
husband or the wife, and instances of coercion in family planning in 2000 and 2001
were more extreme than previously reported. Furthermore, returning Chinese

                                         -3-
emigrants with foreign-born children were not exempt from the family planning
policy.

       The 1998 Profile of Asylum and Country Conditions for China (the Profile)
and the 1999 Country Reports on Human Rights Practices for China (the Report)
buttress the Aird affidavit in many respects. According to the Profile, “Chinese
officials acknowledge privately that forced abortions and sterilizations still occur in
areas where family planning personnel may be uneducated and ill-trained.” (R. at
606.) In Fujian Province, the policy prohibits more than one child, although in rural
areas, “[a] second child is allowed if the first is a girl [or is disabled], an exception
that takes into account the demand for farm labor and the traditional preference for
boys.” (Id. at 390, 608.) But these exceptions are irrelevant here because petitioners
already have a healthy son. Additionally, the Report discusses regulations requiring
that “[i]f a couple has two children, those regulations require that either the man or
woman undergo sterilization.” (Id. at 391.)

       Following a hearing on petitioners’ claims, the IJ denied relief. The IJ found
petitioners’ testimony to be credible, but found that both failed to establish past
persecution or establish a well-founded fear of future persecution, in spite of the
evidence presented to the contrary.

      In the instant cases, neither respondent has been subject to [forced
      sterilization or abortion] in the past. Accordingly, the Respondents’
      claim based on coercive family planning measures by the Chinese
      government falls short of establishing past persecution or a well-
      founded fear of future persecution based on one of the five grounds
      enumerated in the Act.

(R. at 45 (emphasis added).) In its analysis, the IJ quoted at length from the Report
and the Profile. In finding that petitioners failed to meet the burden for asylum, the
IJ did not address the applications for withholding of removal/deportation and relief

                                          -4-
under the CAT.3 The petitioners appealed to the BIA. On November 20, 2003, the
BIA dismissed the petitioners’ appeal and affirmed and adopted the decision of the
IJ. In its brief summary opinion, the BIA referred to the Aird Affidavit, the
petitioners’ testimony, and the State Department Report in finding that petitioners do
not have a well-founded fear of persecution, because petitioners “admit[ed] that they
[were] unaware of anyone in their situation of having violated the policy by giving
birth to children outside of China.” (R. at 738.)

                                    ANALYSIS

       This court reviews the BIA’s asylum eligibility determinations under the
substantial evidence standard, and will overturn the decision only if “we find no
reasonable fact-finder could arrive at the conclusion reached by the BIA.” S-Cheng
v. Ashcroft, 380 F.3d 320, 323 (8th Cir. 2004). “Where the BIA adopts and affirms
the IJ’s opinion, we review the IJ’s opinion directly.” Bernal-Rendon v. Gonzales,
419 F.3d 877, 880 (8th Cir. 2005).

      An alien is eligible for asylum if classified as a “refugee.” 8 U.S.C. §
1158(b)(1). “A ‘refugee’ is an alien unwilling to return to her home country ‘because
of persecution or a well-founded fear of persecution on account of . . . political
opinion.’” Zheng, 415 F.3d at 959 (quoting 8 U.S.C. § 1101(a)(42)(A)). The
term,“refugee,” includes “a person who has been forced to abort a pregnancy or to


      3
        Withholding of removal and CAT relief involve more stringent standards than
a claim for asylum. See Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir. 2005) (noting
that to qualify for withholding of removal, the alien must show there is a “clear
probability” that his life or freedom would be threatened because of one of the
enumerated reasons, upon return to his home country) (internal quotations omitted);
Perinpanathan v. INS, 310 F.3d 594, 599 (8th Cir. 2002) (“An applicant for protection
under the [CAT] must establish that it is more likely than not that he or she would be
tortured if returned to the proposed country of removal.”).

                                         -5-
undergo involuntary sterilization . . . and a person who has a well founded fear that
he or she will be forced to undergo such a procedure.” 8 U.S.C. § 1101(a)(42)(B).

       A “well-founded” fear of future persecution is one which is “subjectively
genuine and objectively reasonable.” Bellido v. Ashcroft, 367 F.3d 840, 843 (8th Cir.
2004). Petitioners must “‘demonstrate through credible, direct, and specific evidence
that a reasonable person in [their] position[s] would fear persecution.’” Zheng, 415
F.3d at 960 (quoting Mwangi v. Ashcroft, 388 F.3d 623, 627 (8th Cir. 2004)). To be
objectively reasonable, however, it is not necessary “to demonstrate there is a 100%
chance, or even a 50% chance, of persecution upon [their] return to [China].”
Bellido, 367 F.3d at 845 n.7. The IJ incorrectly concluded that petitioners’ fear of
future persecution was not objectively reasonable because they had failed to show
they had suffered this kind of action in the past.

      In Zheng, this court was presented with a similar asylum petition involving a
female Chinese citizen from Fujian Province with three United States-born children.
Zheng feared she would be forcibly sterilized because she had violated the coercive
family planning policy. Zheng’s sister, also an applicant for asylum, testified that she
was forced to abort her second pregnancy when she was six months and seven days
pregnant. Zheng also submitted an affidavit from John Aird, which refuted “alleged
misrepresentations concerning China’s coercive population control policy in
Department of State reports.” Zheng, 415 F.3d at 958.

       Zheng’s application for asylum and related relief was denied by the IJ. The IJ
found Zheng had a subjective fear of future persecution, but determined Zheng’s fear
of future persecution was not objectively reasonable. Id. The IJ also found Zheng,
her husband, and her sister to be generally credible, but stated that it would “not give
great weight” to Zheng’s sister’s testimony, because Zheng’s sister’s asylum
application was also pending but not before the IJ. Id. In overturning the IJ and the
BIA, our court held the following evidence showed Zheng’s fear was “well-founded”:

                                          -6-
(1) her sister was forced to have an abortion in China, undercutting claims that forced
abortions or sterilizations no longer occur in Fujian province;4 (2) Zheng intended to
bring her three children and husband if removed to China; and (3) Aird’s affidavit
concluded Chinese authorities would have reason to enforce the one-child policy
against United States-born children. Id. at 963.

        Similarly, Yang and Wu presented specific, direct evidence, found credible by
the IJ that: (1) several family members have been forcibly sterilized, suggesting that
forced abortions and sterilizations still occur; (2) petitioners will not abandon their
children in the United States if forced to return to China; (3) the reports relied upon
by the IJ are directly disputed by the Aird affidavit; and (4) a government official told
Wu’s brother that she would be sterilized upon return to China.

       Although it found the petitioners’ evidence credible, the IJ’s analysis relies
primarily on the Profile and the Report. Though these reports are recognized as
persuasive, “‘use of such official report[s] does not substitute for an analysis of the
facts of each applicant’s individual circumstances.’” Zheng, 415 F.3d at 960 (quoting
Krastev v. INS, 292 F.3d 1268, 1277 (10th Cir. 2002)). Moreover, the petitioners
here provided the Aird affidavit, which this court has found sufficient to dispute the
information in the State Department reports. Id. at 962. If an agency “makes a
finding of fact without mentioning or analyzing significant evidence, its decision
should be reconsidered.” Id. at 963 (quoting Habtemicael v. Ashcroft, 370 F.3d 774,
783 (8th Cir. 2004)). The IJ stated it considered all the evidence and testimony
presented, yet the order lacks any analysis or mention of significant evidence in the
Aird affidavit and the petitioners’ testimony.

      4
        The IJ discounted this evidence, but our court found this to be an error,
because “[t]he fact that in 1998 Fujian family planning authorities forced Zheng’s
sister to abort her second child when she was six months and seven days pregnant is
specific, direct evidence demonstrating Zheng’s fear is objectively reasonable.”
Zheng, 415 F.3d at 960.

                                          -7-
       The IJ’s suggestion that petitioners could potentially avoid persecution by
relocating within China is incorrect. While it is true that applicants do not have a
well-founded fear of persecution if they can avoid harm by simply relocating within
their home country, 8 C.F.R. § 1208.13(b)(2)(ii), this is not true when the persecution
is by government officials or government sponsored:

      In cases in which the persecutor is a government or is government-
      sponsored, or the applicant has established persecution in the past, it
      shall be presumed that internal relocation would not be reasonable,
      unless the Service establishes by a preponderance of the evidence that,
      under all the circumstances, it would be reasonable for the applicant to
      relocate.

8 C.F.R. § 1208.13(b)(3)(ii). Accordingly, the IJ erred in concluding that petitioners
were ineligible for asylum on the basis of speculation that they could potentially
avoid persecution by relocating within China.

       Though the government directs our attention to the recent Second Circuit case
of Huang v. INS, 421 F.3d 125 (2nd Cir. 2005), that case turns on facts different from
those here. In Huang, the only “relevant” evidence offered by Huang was testimony
about his sister-in-law’s experience that she had been forcibly sterilized, which the
court found to be

      sparse and uncorroborated, and would not be probative even if believed
      because Huang omitted any evidence that might bear on whether Huang
      might be in similar circumstances (such as the locality in which this
      woman lived, when she was sterilized, her marital status and the number
      and sex of her children at that time, and so on). Moreover, Huang has
      two older sisters, one with two sons and one with three children, and he
      made no allegation that they had been penalized in any way for having
      children.




                                         -8-
Id. at 129. In contrast, as detailed at length in this opinion, many of Yang and Wu’s
similarly situated family members have suffered persecution on the basis of the
coercive family planning policy.5

                                 CONCLUSION

      Yang and Wu presented substantial, specific, direct, and credible evidence
supporting the conclusion that they have a well-founded fear of persecution if they
are removed to China, and should be granted asylum. The IJ’s finding is not
supported by substantial evidence, especially in light of our court’s recent decision
in Zheng. Accordingly, the IJ’s and the BIA’s decisions are vacated, and the matter
is remanded to the IJ for proceedings consistent with this opinion.
                       ______________________________




      5
       At oral argument, the government argued that granting asylum to petitioners
and those in a similar situation would open the “floodgates.” We find this argument
unpersuasive, especially in light of the recent changes made to the 8 U.S.C. § 1157,
by the REAL ID Act of 2005, removing the cap on the number of refugees granted
asylum on the basis of persecution for resistence to coercive population control
methods. See the REAL ID Act of 2005, Pub. L. No. 109-13, § 101(g)(2), striking
paragraph (5) of 8 U.S.C. § 1157(a).

                                         -9-
