            Case: 12-16150   Date Filed: 03/18/2014   Page: 1 of 37




                                                                      [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 12-16150
                        ________________________

                         Agency No. A073-578-132


MU YING WU,
RU CHENG ZHANG,

                                                                      Petitioners,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                        ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                         ________________________

                              (March 18, 2014)

Before CARNES, Chief Judge, HULL and COX, Circuit Judges.

HULL, Circuit Judge:
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      Mu Ying Wu and her husband Ru Cheng Zhang, natives and citizens of

China, petition for review of the Board of Immigration Appeals’s (“BIA”)

decision, affirming the Immigration Judge’s (“IJ”) denial of Wu’s application for

asylum and withholding of removal and Zhang’s application for asylum and

withholding of deportation. Wu and Zhang entered the United States illegally and

were ordered removed (Wu in 1999) and deported (Zhang in 1997). After the

issuance of these removal and deportation orders, they married in 1999 and had

three U.S.-born children in 2000, 2002, and 2005, respectively.

      In 2004 and 2005, Wu and Zhang both filed multiple motions to reopen their

immigration cases and filed asylum applications claiming future persecution,

including sterilization, if returned to Fujian Province, China. The motions were

denied, and in 2007, they again filed several motions to reopen their cases. The

BIA granted Wu’s and Zhang’s last 2007 motions to reopen and remanded their

cases to the IJ to consider the authenticity of their evidence and for further

consideration of their asylum claims.

      In 2010, after a hearing, the IJ denied Wu’s and Zhang’s asylum

applications, and in 2012, the BIA dismissed their appeal. After careful review,

and with the benefit of oral argument, we deny their petition.

                            I. BACKGROUND FACTS

A.    1996-1999 Immigration Proceedings


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       On August 4, 1994, Zhang illegally entered the United States without

inspection. In May 1996, Immigration and Naturalization Services (“INS”) 1 issued

an Order to Show Cause (“OSC”), charging Zhang as deportable pursuant to

Immigration and Nationality Act (“INA”) § 241(a)(1)(B), 8 U.S.C.

§ 1231(a)(1)(B), for entering the United States without inspection. Zhang

conceded the deportation charge. Zhang filed an application for voluntary

departure. In September 1997, the IJ granted Zhang’s application for voluntary

departure until May 10, 1998, and entered an alternate order of deportation if he

did not depart by that time.

       On November 28, 1997, Wu illegally entered the United States without a

valid entry document. In December 1997, INS issued a Notice to Appear, charging

Wu as removable, pursuant to INA § 212(a)(7)(A)(i)(I), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), for not possessing or presenting a valid entry document. Wu

conceded the removal charge. An IJ ordered Wu removed in January 1999, and

the BIA affirmed the IJ’s removal order.

       Despite Zhang’s voluntary departure order and Wu’s removal order, both

remained in the United States. The two met one another, and on June 14, 1999,

they married. They subsequently had three children, two girls and one boy. The


       1
         On March 1, 2003, INS ceased to exist as an agency with the Department of Justice and
its enforcement functions were transferred to the Department of Homeland Security.


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daughters were born on November 7, 2000 and February 15, 2002, respectively,

and the son on October 30, 2005.

B.     2004-2005 Applications for Asylum

       Throughout 2002 until 2005, Wu and Zhang unsuccessfully attempted to

reopen their immigration proceedings.

       In June 2004, in connection with these efforts, Wu filed an application for

asylum and withholding of removal, and in November 2005, Zhang filed an

application for asylum and withholding of deportation. Both Wu and Zhang

claimed that they feared that they would be sterilized if returned to China because

the U.S. births of their children violated China’s family planning policy. Wu and

Zhang claimed that they would be returned to Tingjiang Town, Fujian Province,

China.2

C.     2007 New Motions to Reopen and Consolidation

       In 2007, Wu and Zhang filed new motions to reopen their immigration

proceedings based on changed country conditions. Both motions to reopen

claimed that, on June 9, 2006, Zhang’s mother received an “Official Document”


       2
         Zhang’s initial asylum application, which he filed in August 1994 and withdrew in 1997,
states that he was from Tingjiang Town. However, his and Wu’s later applications state that they
are from Fuzhou City. Tingjiang Town is located north of Fuzhou City, but both are in Fujian
Province. Evidence in the record provides that asylum applicants occasionally list Fuzhou City
as their home, despite the fact that they are actually from a town “some miles away.” At oral
argument, counsel clarified that Wu and Zhang claim that they would be returned to Tingjiang
Town.


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that purported to be from the Birth Control Office of Tingjiang Town, Mawei

District, Fuzhou City (“2006 Tingjiang Document”). The 2006 Tingjiang

Document ordered the sterilization of either Wu or Zhang when they returned to

China. Based on this order, Wu’s and Zhang’s new motions claimed that

circumstances in China had changed since they were first ordered

removed/deported, as well as since their last motions to reopen were denied in

2004 and 2005.

      Their new 2007 motions to reopen included a translated copy of the 2006

Tingjiang Document. And, this document states that it was drafted in response to

an inquiry Wu and Zhang made concerning family planning policies. The

document sets forth Wu and Zhang’s background, noting their genders,

nationalities, dates of birth, their village, and current location (the United States).

The 2006 Tinjiang document further states:

      According to ‘the Birth Control Regulation of Fujian Province’,
      Article 5 and Article 6, citizens who gave birth to one child are target
      of [intrauterine device (“IUD”)] insertion; who gave birth to two
      children will be sterilized. Although you are in the United States now,
      still, a citizen of China and must be listed as target of sterilization.
      The exception of sterilization only apply to the United States citizen,
      permanent resident and whom with a Master/Ph.D. degree. If you can
      not meet the above exceptions, you must report to this Birth Control
      Office to be sterilized within one week upon your return to China.
      Hereby noticed.
      The Birth Control Office of Tingjiang Town, Mawei District of
      Fuzhou City

The 2006 Tingjiang Document purportedly was under seal.
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      In addition, Wu’s motion to reopen included (1) a 2006 Shouzhan Town

document that was purportedly issued by the Tangyu Villagers’ Committee of

Shouzhan Town, Changle City and that states that “the birth control method after

the birth of one child” was the insertion of an IUD and after the “birth of two

children” was sterilization; (2) a November 9, 2006 statement from Wu’s aunt,

Xiang Hua Liu, in China, who noted that, in March 1991, after having two

children, she was forcibly sterilized in “Changle County”; and (3) an October 1995

document that Wu claimed was the “sterilization certificate” of her cousin, Hui

Ying Liu, in China, and that states that Liu had a “bilateral tubal ligation” in

Tingjiang Town.

      In filing their 2007 motions to reopen, Wu and Zhang also relied on their

2004 and 2005 prior applications.

      In August 2007, the BIA granted Wu’s and Zhang’s last 2007 motions to

reopen and remanded their cases to the IJ. The BIA instructed the IJ, on remand,

to address the authenticity of the evidence presented with Wu’s and Zhang’s

motions, their credibility, and eligibility for relief. In May 2008, Zhang’s case was

consolidated with Wu’s case.

      In 2010, the IJ held a merits hearing. We review the documentary evidence

and Wu’s testimony at the hearing.

D.    DHS’s Documentary Evidence


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      On remand before the IJ, the Department of Homeland Security (“DHS”)

filed background evidence concerning China’s family planning law, including, but

not limited to: (1) the U.S. State Department’s 2009 Human Rights Report for

China (“2009 Report”); (2) the U.S. State Department’s 2007 Profile of Asylum

Claims and Country Conditions for China (“2007 Profile”); and (3) a submission

of compiled evidence regarding population control claims arising out of the birth

of children in the United States. Included in that submission are: (1) an excerpt

from the U.S. Department of State’s 2005 Profile of Asylum Claims and Country

Conditions for China (“2005 Profile”); (2) an April 2002 report by the United

Kingdom’s government; (3) various correspondence from the Fujian Provincial

Birth Planning Committee (“Fujian Committee”); and (4) various newspaper

articles. We briefly summarize the information gleaned from this evidence.

      1.     China’s National Population and Birth Planning Law

      The DHS’s evidence indicates that China’s law and policy forbids

sterilization, but requires social compensation fees if a couple has more than one

child. Specifically, the 2007 Profile describes China’s National Population and

Birth Planning Law enacted in September 2002 (the “family planning law”). This

law standardizes the implementation of China’s family planning policy. The

family planning law (1) grants most married couples the right to have a single

child, (2) allows eligible couples to have a second child, (3) requires couples to use


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birth control measures, and (4) requires parents of an “unapproved child” to pay a

“social compensation fee.” China’s family planning law delegates to the provinces

the responsibility for drafting the law’s implementing regulations, including

establishing a scale for the assessment of social compensation fees. Thus, “local

enforcement and important aspects of local regulations vary significantly from

place to place.”

       Both the 2007 Profile and the 2009 Report state that China’s central

government policy prohibits the use of physical coercion to compel persons to

submit to sterilization or abortive procedures. The 2007 Profile acknowledges that

U.S. diplomats in China “have heard reports” that local officials occasionally

employed illegal means, such as forced sterilizations, in order to meet birth

planning targets and to retain their jobs. The 2009 Report states that, “[i]n the case

of families that already had two children, one parent was often pressured to

undergo sterilization.” And, “[t]he penalties [for violating China’s family planning

policies] sometimes left women with little practical choice but to undergo abortion

or sterilization.”

       The 2009 Report also provides that social compensation fees imposed under

China’s family planning law could “reach 10 times a person’s annual disposable

income.” A 2007 newspaper article from the Washington Post, citing the head of

the Chinese National Population and Family Planning Commission, notes that


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“fines” for violations of the family planning regulations could be reduced or

waived for “poor persons.”

      2.     Fujian Province’s Enforcement of China’s Family Planning Law

      With respect to Fujian Province in particular, the 2007 Profile states that the

Fujian Committee reported no cases of forced sterilization in the last ten years, and

local physicians reported that they had seen no signs of forced sterilization since

the 1980s.

      Similarly, the April 2002 report by the United Kingdom’s government states

that: (1) most authorities agreed that Fujian Province was less strict in enforcing its

birth control policy than any other province in China except one; (2) to enforce the

birth control policy, Fujian Province used incentives rather than forced abortions

and sterilizations; and (3) one-third of families in Fujian Province had three or

more children. The 2002 report also states that Fujian Province government

officials fined the “the parents of ‘out-of-plan’ children . . . 60-100% of the

family’s annual income.” And, unpaid fines could result in the confiscation or

destruction of homes and personal property by local authorities.

      The 2007 Profile states that the Fujian Committee imposed social

compensation fees on those who did not comply with the birth planning laws, but

the Fujian Committee indicated that couples unable to pay the required social

compensation fee “immediately may be allowed to pay in installments.” Although


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local birth planning committees could sue families who refused to pay the fees, the

committees could not garnish the families’ wages.

      There was some conflicting evidence too. The 2007 Profile also states that:

(1) there was a 2006 report of a forced sterilization in Fujian Province; (2)

hundreds of asylum applicants from the province claimed that forced sterilization

practices continued; (3) U.S. Consulate General officials visiting the province

“found that coercion through public and other pressure” had been used to enforce

family planning policies, “but they did not find any cases of physical force

employed in connection with abortion or sterilization”; and (4) the province

required unspecified “remedial measures” for out-of-plan pregnancies.

      3.     China’s Treatment of U.S.-Born Children

      Specifically, correspondence from the Fujian Committee, dated October 13,

2006, to DHS provides that a family with U.S.-born children was treated

differently than a family with Chinese-born children. This correspondence was

included as an appendix to the 2007 Profile. This correspondence discusses U.S.-

born versus Chinese-born children for family planning policies. It explicitly states

that: (1) a child born in the United States to a Chinese resident was not considered

a permanent resident of China unless the child’s permanent residency was




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established upon the child’s return to China; 3 (2) “when enforcing birth policy

rules . . ., the [non-permanent resident] child was not counted”; and (3) Villagers’

Committees did “not have the right to make decisions on family planning

disposition[s].”

       Additional correspondence from the Fujian Committee, dated January 17,

2007, adds to the 2006 correspondence by stating that, when a foreign-born child

established permanent residency in China, the child counted “when enforcing birth

policy rules.”

       Likewise, the 2007 Profile indicates that U.S.-born children would not count

towards China’s family planning policy unless they were registered as Chinese

permanent residents. If a parent decided to register his/her foreign-born children as

permanent Chinese residents in order to gain access to public services, the

children’s registration “could trigger sanctions and economic penalties under the

relevant laws and regulations.”

       The 2007 Profile also provides that U.S. officials in China were not aware of

any official policy, at either the national or provincial levels, that “mandated” the

sterilization of one partner of couples that had given birth to two children, with at



       3
        According to the 2007 Profile, children with a “Chinese household registration” are
recognized as Chinese permanent residents. A household registration officially documents the
“legitimate residence of a person,” as well as the allocation of services, such as free education
and other social benefits.
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least one child being born abroad. The 2005 Profile states that U.S. officials were

unaware of any cases of forced sterilization upon such couples’ return to China. 4

       The 2007 Profile notes that documentation from China, particularly from

Fujian Province, was subject to widespread fabrication and fraud. This fraud

extended to documents that purportedly verified birth control measures and notices

from public security authorities. The 2007 Profile observes that “[t]he existence of

this fraud has been established by direct investigation by U.S. consular officers in

China.”

E.     Wu and Zhang’s Documentary Evidence

       As their evidence, Wu and Zhang filed (1) a February 10, 2009 “Fuzhou

City Mawei District Tingjiang Town People’s Government Document” that was

purportedly signed by the Tingjiang Town Family Planning Office (“2009

Tingjiang Document”); (2) a February 2009 “Fuzhou City Mawei District

Tingjiang Town People Government . . . Notice” that was purportedly signed by

the Baimei Village Committee (“2009 Villager’s Committee Notice”); (3) a 2010

letter from Zhang’s mother; and (4) a 2009 letter from Zhang’s cousin, Langying

Liu in China, who gave birth to a second child in 2008.




       4
         An excerpt from the 2005 Profile, however, provides that a family with a U.S.-born child
or children received “no special treatment” under China’s family planning laws unless one of the
parents had residency rights in another country.

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      The 2009 Tingjiang Document indicates that it was a response to Wu and

Zhang’s prior inquiry about the town’s family planning policy. The 2009

Tingjiang Document states that: (1) Tingjiang Town strictly enforced Fujian

Province’s Population and Family Planning Policy; (2) “all Chinese citizens who

have one child are subjected to IUD insertion; who have two children are subjected

to be sterilized”; (3) because Wu and Zhang had three children without approval or

birth permit, they had to appear at a province hospital for sterilization and pay

“according to 60% to 1 time of each person average net income and 2 to 3 times of

social support fees”; and (4) if they registered their children, Wu and Zhang had to

follow the family planning policy.

      The 2009 Villager’s Committee Notice states that: (1) an investigation

revealed that Wu and Zhang had three children and had violated Fujian Province’s

Population and Family Planning Policy; and (2) Wu and Zhang should report to the

family planning office, within one month of receipt of the notice, to be sterilized

and to pay a social support fee.

      Zhang’s mother’s 2010 letter states that: (1) a family planning office had

investigated Zhang’s situation and determined that Wu and Zhang had violated the

family planning policy; and (2) officials sent out a notice for sterilization and came

to Zhang’s mother’s house to determine if Zhang had returned to China.




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        Cousin Liu’s 2009 letter states that: (1) officials told her she had to be

sterilized or her children would not be registered; (2) officials told her to pay a

fine, but she refused to do so; (3) officials thus took valuable items from her home

to pay the fine; and (4) Liu acquiesced to the sterilization in order to register her

children. A document, dated July 7, 2009, from Changle City certified that

Langying Liu had been sterilized. There is no claim that Liu’s children were U.S.-

born.

F.      2009 DHS Report on the 2006 Tingjiang Document

        On June 9, 2009, prior to the merits hearing, the DHS filed a report

concerning the 2006 Tingjiang Document. The report states that, following the

DHS’s “[m]icroscopic, instrumental and comparative examination” of the

Tingjiang document, the DHS had concluded that the document was “unsuitable

for authentication.” The report found: (1) “[t]he diversity of forms, letterheads,

printing processes, stamp impressions, authorization signatures, handwriting and

typewriting used for many types of locally issued documents . . . precludes the

maintenance of a comprehensive set of specimens and/or reference material”; (2)

“[a]n examination revealed that the document was produced with inkjet printing

technology,” which “can be easily reproduced or counterfeited without detection”;

(3) because a document produced in that manner could be easily reproduced or

counterfeited without detection, conformity of the document to a known specimen


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would be of limited value in determining its authenticity; and (4) no physical

evidence showed that the information in the document was altered.

G.    Wu’s Testimony at 2010 Merits Hearing

      At the July 27, 2010 merits hearing, Wu testified that she wanted one more

child, and that Wu and Zhang did not agree to be sterilized. If removed to China,

Wu would not register her three children “in the household registration.” Wu said

the Chinese government would not allow registration because she violated the

family planning policy.

      According to Wu, although her U.S.-born children would not be registered,

they would still count towards the number of allowable children under China’s

family planning policy. On cross-examination, DHS asked Wu how she could

reconcile her testimony with evidence from the Chinese government stating that

unregistered children were not counted for the purposes of China’s family planning

policies. Wu responded that she did not understand the question.

      Wu testified that, at an unspecified time, her children had already visited

China, and, instead of visas, the Chinese government issued them “travel

documents.” Wu said only Chinese citizens could use travel documents, as

opposed to visas. Thus, Wu believed that the Chinese government considered her

children Chinese citizens. Wu acknowledged, however, that all three children

possessed and had used U.S. passports when they visited China.


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        Wu testified that, if she returned to China, she would be forcibly sterilized.

Wu knew this because, at some point after her removal proceedings started, she

had Zhang write a letter to the “Village Birth Control Bureau” asking what would

happen to her and Zhang if they returned to China. The response 5 to Wu’s letter

states that she and Zhang had violated China’s family planning policies, and the

Bureau would arrest, sterilize, and fine Wu and Zhang. The Bureau delivered the

letter to Zhang’s mother, who then sent it to Wu and Zhang. Wu’s aunt, Xiang

Hua Liu, Zhang’s cousin, Langying Liu, and “a neighbor” had each individually

given birth to two children in China and then were forcibly sterilized. In April

2010, Zhang’s sister, in China, was forced to abort her second child.

      Wu further testified that, if she returned to China, she would be fined for her

violation of the family planning policy. According to Wu, Zhang’s cousin violated

the family planning policy and had to pay 60,000 RMB, which was approximately

$10,000.6 In China, Zhang qualified to receive monthly wages of around 500

RMB because he had no education and would have to work secretly in a field or a

restaurant, as he would not have a “household registration record.” Wu would not

work.


        5
      It is unclear from the record whether Wu is referring to the 2006 and 2009 Tingjiang
Documents or to another document not in the record.
        6
       Wu did not specify if she was referring to cousin Langying Liu or some other cousin of
Zhang’s.

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      In China, Wu’s monthly expenses would be 2,000 RMB, but the average

monthly expenses for a Chinese family were between 800 RMB and 1,000 RMB.

Wu’s family’s expenses would exceed other Chinese families’ expenses because

Wu’s family would lack a household registration and thus would have to pay for

their children’s studies and healthcare.

      At the time of the hearing, in the United States, Zhang worked in a

restaurant earning $3,500 to $3,700 a month. Wu and Zhang had no savings and

owned a house with a $220,000 mortgage and a $150,000 value.7

H.    IJ’s 2010 Decision

      In the 2010 oral decision, the IJ found that Wu’s testimony itself was

credible. The IJ determined, however, that Wu’s 2006 Tingjiang Document—

indicating that Wu and Zhang would be sterilized—was entitled to “little or no

weight” because, inter alia, (1) it was not authenticated, and (2) it was created and

obtained for the purpose of these immigration proceedings. The IJ found that the

document “was manufactured solely for this case.” Citing the 2007 Profile, the IJ

also found that a Villager’s Committee did “not have the right to make decisions

on family planning disposition[s]” and a certificate issued by that Committee

“should be deemed ineffective.”




      7
          Zhang did not testify.
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      The IJ also observed that there was widespread document fraud in China,

particularly in Fujian Province. This widespread fraud included the fabrication of

documents that purportedly verified “birth control measures,” and the fabrication

of “notices from public security authorities.”

      As to sterilization, the IJ found that China’s central government’s policy

prohibited the use of physical coercion to compel persons to submit to sterilization

or abortion. Although there was evidence that local planning officials had, at

times, used physical coercion to meet birth limitation targets, the evidence did not

show that use of coercion occurred routinely. And, according to the 2007 Profile

“there ha[d] been no cases of forced sterilization in Fujian in the last ten years” and

the law prohibited “the use of physical coercion to compel persons to submit to

abortion or sterilization.” While coercion through public and other pressure had

been used, there were no cases found of physical force employed in connection

with abortions or sterilizations after U.S. officials visited Fujian Province.

      The IJ also found that Wu had not presented any evidence of a Chinese

national returning with two or more U.S.-born children and being forcibly

sterilized. The IJ cited and relied on the BIA’s prior decision in Matter of H-L-H-,

where the BIA determined that, to be eligible for asylum relief (i.e., by showing,

inter alia, an objectively reasonable well-founded fear of future persecution), the

respondent must show “a reasonable possibility that Chinese Government officials


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would enforce the family planning policy against her through means constituting

persecution.” See Matter of H-L-H-, 25 I. & N. Dec. 209, 211-12 (BIA 2010)

(citing the BIA’s 2007 decision in In re J-H-S-, 24 I. & N. Dec. 196 (BIA 2007),

where the BIA used this same general test, although separating the test into three

prongs). 8

       Further, the IJ noted that the BIA had previously discussed the same 2007

Profile and the same October 13, 2006 correspondence from the Fujian Committee,

both of which were in the record in Wu’s case. The IJ here observed that those

documents showed that (1) children born in the United States to a Chinese national

are not considered as Chinese mainland residents if they have not gone through the

formal process to register and become permanent residents and (2) such U.S.-born

children will not be counted against the number of children allowed under China’s

family planning law if they were not registered.

       The IJ concluded that, if Wu and Zhang were to be penalized at all for

having a second child while outside of China, the only sanctions would be
       8
         In In re J-H-S-, the BIA stated that, to demonstrate an objectively reasonable well-
founded fear, an alien must show: (1) “proof of the details of the family planning policy relevant
to [her]”; (2) “the alien violated the policy”; and (3) “the violation of the family planning policy
would be punished in the local area in a way that would give rise to an objective fear of future
persecution.” See In re J-H-S-, 24 I. & N. Dec. at 198-99, petition denied sub. nom., Shao v.
Mukasey, 546 F.3d 138, 142-43, 169-70 (2d Cir. 2008) (finding no legal error in in the BIA’s
three-prong test).
        While Matter of H-L-H- was later overruled on other grounds by Hui Lin Huang v.
Holder, 677 F.3d 130 (2d Cir. 2012) (concluding the IJ’s finding of a future event is not
reviewed de novo by the BIA, but for clear error), the Second Circuit did not disturb the In re J-
H-S- test that was cited in Matter of H-L-H-, 25 I. & N. Dec. at 211-12 (referring to the BIA’s
“three-part inquiry” in Matter of J-H-S-, petition denied sub. nom., Shao, 546 F.3d at 142-43).
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economic. The IJ stated that there was “wide variation in the amount of social

compensation fees and the severity of hardship they impose for out-of-plan births.”

The IJ determined that (1) Wu had “speculated” that Zhang’s cousin was fined

60,000 RMB; (2) that the record contained “scant” information regarding Wu’s

financial situation; and thus (3) the evidence was insufficient to establish that the

fine would be so severe as to rise to the level of future economic persecution.

      The IJ also observed that, if Wu’s children were not registered as permanent

residents (and thus did not count towards the number of children allowed under

China’s family planning law), they would be ineligible for free public education

and other social benefits. The IJ determined, however, that those benefits were

still available, just at a cost, which did not amount to future economic persecution.

      The IJ also determined that the letters from Wu’s relatives did not provide

substantial support for her contention that she would be subjected to forcible

sterilization or sanctions rising to the level of persecution. The IJ explained that:

(1) the authors of the letters were “interested,” “biased,” and not subject to cross-

examination; (2) there was no way to determine whether the letters’ contents were

true; and (3) the authors were not similarly-situated to Wu because they did not

claim to have U.S.-born children. The IJ stressed that the letters did not involve

U.S.-citizen children.




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       The IJ concluded that Wu and Zhang failed to show (1) their eligibility for

asylum because they had not shown that they had an objective well-founded fear of

future persecution and (2) Wu’s eligibility for withholding of removal. 9 The IJ

denied Wu’s and Zhang’s applications for relief and ordered them removed.

I.     BIA Appeal

       On August 26, 2010, Wu and Zhang filed a notice of appeal with the BIA.

Wu and Zhang argued that they satisfied their burden of showing that there was a

reasonable probability that they would be forcibly sterilized and would face

economic penalties amounting to persecution if they returned to China.10

       On November 16, 2012, the BIA dismissed Wu and Zhang’s appeal. The

BIA agreed with the IJ that Wu had not met her burden of proof for asylum or her

other requested relief. As to asylum eligibility, the BIA expressly rejected Wu’s

assertion that the IJ used the wrong burden of proof and her argument that the IJ

failed to consider Wu’s evidence. Specifically, the BIA determined that the IJ laid

out the relevant law pertaining to asylum eligibility and that the IJ concluded,

using the proper burden of proof, that Wu failed to establish a well-founded fear of

       9
        The IJ did not expressly rule on Zhang’s claim of withholding of deportation. By not
addressing his claim for withholding of deportation before this Court, Zhang has abandoned this
claim. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir. 2009).
       10
          Following the filing of Wu and Zhang’s appeal, the BIA determined that there was no
digital audio recording of the July 27, 2010 hearing and the IJ’s oral decision. Thus, the BIA
returned the record to the IJ to prepare a complete transcript of the proceedings. On November
16, 2012, following the receipt of the complete transcript of the July 27, 2010 proceedings, the
BIA decided Wu and Zhang’s appeal.
                                               21
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persecution. The BIA determined that the IJ properly considered Wu’s evidence,

“given the [IJ]’s lengthy discussion of the evidence in [her] decision.” The BIA

also specifically concluded that the IJ considered and evaluated the 2006 Tingjiang

Document. The BIA did not question any of the IJ’s underlying factual findings.

      The BIA determined that it reached the “same conclusion” as the IJ that Wu

had not established a well-founded fear of persecution. In reaching this

conclusion, the BIA determined that Wu did not satisfy the three-pronged test set

forth in In re J-H-S-. The BIA described that test as requiring Wu to show: “(1)

the births [of her children] violated family planning policies in [her] local province

or municipality, (2) the family planning policies are being enforced, and (3) current

local family planning enforcement efforts would give rise to a well-founded fear of

persecution due to the violation.” Although using slightly different language, the

substance of the test the BIA used in Wu’s case is the same as used in In re J-H-S-

and Matter of H-L-H-. 11

      The BIA determined that Wu failed to satisfy the test because: (1) much of

her evidence did not address current family planning policies and was general in

nature; and (2) she did not show that coercive family planning policies existed and

were implemented in Fujian Province. The BIA observed that much of Wu’s

evidence was cumulative of documents analyzed in prior BIA cases. The BIA


      11
           See supra note 8.
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cited Matter of H-L-H-, the same case on which the IJ relied, as it had some of the

same evidence in the record as this case.

      The BIA determined that Wu’s individualized evidence, when considered

together with the documentation assessed in the BIA’s past cases, did not

demonstrate that forcible sterilizations were mandated in her home province after

the birth of a third U.S.-citizen child. The BIA found that Wu’s evidence

established “no uniform policy regarding the implementation of the population

control law with respect to children born outside of China.”

      As to the letters from Wu’s relatives, the BIA observed that the witnesses

were interested and not subject to cross-examination. The BIA specifically noted

that, although Wu submitted evidence concerning Zhang’s cousin Langying Liu,

who was allegedly sterilized in 2009 after her second China-born child, Wu’s

evidence did not include the details of the underlying facts of this alleged

sterilization, such that the BIA could determine that the procedure was in fact a

form of persecution. In any event, Zhang’s cousin Liu was not similarly-situated

to Wu, as Liu did not have U.S.-born children. The BIA determined that the

village or local family planning office documents were entitled to minimal weight

because they were unauthenticated, not originals, and unsupported by independent

evidence. In addition, the writers were not available for examination.




                                            23
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         The BIA also observed that Wu’s evidence did not establish penalties or

sanctions rising to the level of persecution. Having found Wu failed to satisfy the

lower burden of proof for asylum, the BIA also found Wu failed to satisfy the

higher standard for withholding of removal. 12

         On December 3, 2012, Wu and Zhang filed a petition for review in this

Court.

                                   II. DISCUSSION

A.       Standard of Review

         We review the BIA’s factual findings to determine whether they are

supported by substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27

(11th Cir. 2004) (en banc). Under the substantial evidence standard, we “view the

record evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision.” Id. at 1027. We may reverse the

BIA’s factual findings only “when the record compels a reversal.” Id. “The mere

fact that the record may support a contrary conclusion is not enough to justify a

reversal of the administrative findings.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d




         12
         Although both the IJ and the BIA concluded Wu and Zhang were not entitled to relief
under the Convention Against Torture (“CAT”), Wu and Zhang never applied for CAT relief. In
any event, Wu and Zhang have abandoned any claim regarding their eligibility for CAT relief
because, on appeal, they make only a one-sentence passing reference to this issue. See
Kazemzadeh, 577 F.3d at 1352 (providing that a petitioner abandons an issue where he makes
only a passing reference to an issue in his brief).
                                             24
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1341, 1351 (11th Cir. 2009) (quotation marks omitted and alteration adopted). We

cannot reassess the evidence from scratch. Adefemi, 386 F.3d at 1027.

      We review the IJ’s and the BIA’s legal conclusions de novo. Kazemzadeh,

577 F.3d at 1350.

      “[W]e review only [the BIA’s] decision, except to the extent the BIA

expressly adopts the IJ’s decision.” Wu v. U.S. Att’y Gen., 712 F.3d 486, 492

(11th Cir. 2013) (quotation marks omitted). We have found that the BIA expressly

adopted an IJ’s decision where the BIA either agreed with the IJ’s findings or

relied on the IJ’s reasoning, and in those circumstances, we have reviewed both the

IJ’s and the BIA’s decisions to that extent. See, e.g., Fajardo v. U.S. Att’y Gen.,

659 F.3d 1303, 1307 n.3 (11th Cir. 2011) (concluding that, “[w]here, as is the case

here, the BIA issues its own decision but relies in part on the IJ’s reasoning, we

review both decisions”); Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir.

2009) (reviewing both the IJ’s and BIA’s decisions to the extent that the BIA

“affirmed and relied upon the IJ’s decision and reasoning,” but did not expressly

adopt the IJ’s opinion); Kazemzadeh, 577 F.3d at 1350 (providing that, because the

BIA agreed with the finding of the IJ that Kazemzadeh failed to establish a well-

founded fear of persecution on account of his religion, we review the decisions of

both the IJ and the BIA about that issue); Mohammed v. U.S. Att’y Gen., 547 F.3d

1340, 1344 (11th Cir. 2008) (concluding that because the BIA agreed with the


                                          25
              Case: 12-16150       Date Filed: 03/18/2014      Page: 26 of 37


adverse credibility determination and the findings that the petitioner did not suffer

past persecution, we review the decisions of both the IJ and the BIA regarding

those findings).

       Thus, we will review both the IJ’s and BIA’s decision to the extent that the

BIA agreed with the IJ’s findings or relied on his reasoning, even if the BIA did

not use “magic words” and state that it was “adopting” the IJ’s findings or

reasoning.13 And, we review the BIA’s decision “to those matters on which it

rendered its own opinion and reasoning.” See Tang, 578 F.3d at 1275.

B.     Authenticity of 2006 Tingjiang Document

       On appeal, Wu and Zhang argue that the IJ and BIA erred in giving little or

no weight to the 2006 Tingjiang Document. Because the BIA adopted the IJ’s

finding that the 2006 Tingjiang Document was unauthenticated, we review both

the BIA’s and IJ’s decisions with respect to that finding.

       “Unauthenticated documents lack veracity and are entitled to no deference.”

Chen v. U.S. Att’y Gen., 672 F.3d 961, 964 (11th Cir. 2011); see Wu, 712 F.3d at

497 (stating that “‘we cannot depend of [the] veracity’ of unauthenticated

documents” and determining that the IJ was within his discretion to discount a

certificate showing that the petitioner had an abortion as lacking in probative
       13
          Indeed, on appeal, Wu’s brief primarily challenges the IJ’s findings, reasoning, and
legal conclusions. Although the BIA did not say “adopt,” Wu has never contended that the BIA
did not rely on and adopt the IJ’s findings and reasoning. In other words, Wu wants us to
examine both the IJ’s and BIA’s decisions. The government also asks this Court to review both
the IJ’s and BIA’s decisions.
                                              26
               Case: 12-16150       Date Filed: 03/18/2014       Page: 27 of 37


value); Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1203, n.3 (11th Cir. 2005)

(observing that petitioner had “submitted official documentation from the Chinese

government indicating that she underwent a ‘sterilization procedure,’” but

determining that this Court could not depend on the document’s veracity because it

had not been authenticated).

       One way to authenticate official records is to comply with 8 C.F.R. § 287.6.

This regulation, as relevant here, provides that “an official record . . . shall be

evidenced by an official publication thereof, or by a copy attested by an officer so

authorized.” 14 8 C.F.R. § 287.6(b). Further, “[t]his attested copy in turn may but

need not be certified by any authorized foreign officer both as to the genuineness

of the signature of the attesting officer and as to his/her official position.” Id.

       Here, Wu and Zhang did not produce either an “official publication” of the

2006 Tingjiang Document or a properly attested and certified copy of that

document. Wu and Zhang do not even argue that they did. Rather, they contend

that they authenticated the 2006 Tingjiang Document by other means.

       This Court has not yet decided whether § 287.6 is the exclusive method of

authentication of documents filed in immigration proceedings. See Ali v. U.S.


       14
         What is required to authenticate an official record under § 287.6 is dependent upon
whether the country in which the document originated is a signatory to the Convention
Abolishing the Requirement of Legislation for Foreign Public Document. 8 C.F.R. § 287.6.
China is not a signatory to this convention, and thus, the requirements concerning countries not
signatories to the convention apply in this case. Id. § 287.6(b).


                                               27
               Case: 12-16150        Date Filed: 03/18/2014       Page: 28 of 37


Att’y Gen., 443 F.3d 804, 812 (11th Cir. 2006) (noting the petitioner’s argument

that § 287.6 was not the exclusive method for authentication of documents, but

deciding that the petitioner had offered no compelling reason as to why he could

not have obtained and submitted a properly certified document). 15

       Here, we need not decide whether § 287.6 is the exclusive method because

the IJ did not explicitly treat § 287.6 as the exclusive means of authenticating the

2006 Tingjiang Document, but rather generally concluded that Wu and Zhang had

not authenticated the document by any means. And, based on the record in this

case, neither the IJ nor the BIA erred in the ultimate finding that Wu and Zhang did

not authenticate the 2006 Tingjiang Document.

       Wu and Zhang’s main argument for authentication is: the DHS examined the

document and concluded that there was no evidence that it had been altered. That

the document had not been altered after its creation does not show that it was

authentic at the time it was created. Wu and Zhang present no evidence that this

document, produced with inkjet printing technology, was actually created by the

       15
          As Wu and Zhang note, other circuits have held that § 287.6 is not the only way for an
asylum applicant to authenticate a document. See Vatyan v. Mukasey, 508 F.3d 1179, 1184-85
(9th Cir. 2007) (determining that the IJ erred “insofar as he required [the petitioner] to produce
some form of official certification as a mandatory pre-requisite to authenticating his proffered
documents” and that a petitioner’s testimony concerning a document may be sufficient to
establish its authenticity); Liu v. Ashcroft, 372 F.3d 529, 532-33 (3d Cir. 2004) (providing that
“asylum applicants can not always reasonably be expected to have an authenticated document
from an alleged persecutor” and that the IJ erred by viewing the procedures set forth in § 287.6
as the exclusive means of authentication for foreign public documents (internal quotation marks
omitted)).

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Birth Control Office of Tingjiang Town. Moreover, the evidence shows that

documents from Fujian Province were often fraudulent. In sum, the IJ and BIA

properly considered this evidence and offered reasoned conclusions as to how to

weigh it. Wu and Zhang have not shown that the IJ and BIA erred in determining

that the 2006 Tingjiang Document was unauthenticated. Thus, the IJ and BIA did

not err in giving it little or no weight.

C.     Asylum Eligibility

      Wu and Zhang also argue that they established that Wu has a well-founded

fear of future persecution if she returned to China, such that they were both entitled

to asylum.

       To establish asylum eligibility, an alien must show, with specific and

credible evidence, either past persecution or a “well-founded fear” of future

persecution on account of one of the statutorily listed factors, which include the

alien’s political opinion. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42); 8 C.F.R.

§ 208.13(a)-(b); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230-31 (11th Cir.

2005). Government-ordered forced sterilization or persecution for refusing to

undergo such a procedure is “persecution on account of political opinion.” INA

§ 101(a)(42)(B); 8 U.S.C. § 1101(a)(42)(B).




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              Case: 12-16150       Date Filed: 03/18/2014      Page: 30 of 37


       Here, Wu seeks asylum based solely on her fear of future persecution. 16 To

establish a well-founded fear, “an applicant must demonstrate that . . . her fear of

persecution is subjectively genuine and objectively reasonable.” Al Najjar v.

Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001). To establish a well-founded fear

of future persecution, the applicant “need only show that there is a reasonable

possibility of suffering such persecution if . . . she were to return to [her home

country].” Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007)

(quotation marks and brackets omitted). The asylum applicant bears the burden of

proof. Al Najjar, 257 F.3d at 1284.

       1.     Forcible Sterilization

       The BIA has determined that asylum claims by Chinese nationals who fear

future sterilization based on China’s one-child policy must be evaluated on a case-

by-case basis. In re J-H-S-, 24 I. & N. Dec. at 200-01. To demonstrate an

objectively reasonable well-founded fear, an alien must show: (1) “proof of the

details of the family planning policy relevant to [her]”; (2) “the alien violated the

policy”; and (3) “the violation of the family planning policy would be punished in




       16
         Because Wu does not claim that she suffered past persecution in China, she has no
presumption of a fear of future persecution. See Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256
(11th Cir. 2007).


                                              30
               Case: 12-16150       Date Filed: 03/18/2014        Page: 31 of 37


the local area in a way that would give rise to an objective fear of future

persecution.” Id. at 198-99. 17

       Here, after record review, we conclude that substantial evidence supports the

BIA’s conclusion that Wu failed to show a well-founded fear of persecution. First,

Wu failed to satisfy the three-pronged test set forth in In re J-H-S-. Wu did not

show the existence of a policy that counted U.S.-born children towards the number

of children allowed under China’s family planning policy. The record evidence

shows that, in Fujian Province, U.S.-born children are not counted towards the

number of children allowed under China’s family planning policy where the U.S.-

born children are not registered as permanent residents in China. Wu does not plan

to register her children and even claims she cannot do so.

       Second, even if Wu had shown the existence of a policy providing that U.S.-

born children counted towards China’s family planning policy, she has not shown

that violations of the policy by parents with U.S.-born children would result in

forcible sterilization of one of the parents. Wu submitted no evidence showing that

a Chinese citizen returning to Fujian Province, China with U.S.-born children

actually had been forcibly sterilized or penalized in a way amounting to

persecution.
       17
         Wu does not argue that the BIA’s three-part test is an unreasonable interpretation of the
term “well-founded fear” in INA § 101(a)(42), 8 U.S.C. § 1101(a)(42), to which we should not
apply deference under Chevron v. U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837,
104 S. Ct. 2778 (1984). See supra note 8.


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      In addition, the 2007 Profile states that: (1) China’s national policy prohibits

the use of physical force to compel a person to submit to sterilization; (2) even

though local enforcement of family planning policies is uneven, U.S. Consulate

General officials visiting Fujian Province and interviewing visa applicants from

Fujian Province found evidence of coercion through public pressure and fines, but

not the use of physical force; and (3) there were some reports in 2006 of forced

sterilization in Fujian Province, but these were rare incidents by local officials

without authority and using illegal means.

      The record also contains October 2006 correspondence from the Fujian

Committee to the U.S. Consulate General advising that: (1) children born abroad

are not considered permanent residents of China and, thus, would not be counted

under the one-child policy if the children are not entered in the household registry;

(2) under Fujian Province regulations, there are no forced sterilizations; and

(3) because Villagers’ Committees do not have the authority to “make decisions on

family planning disposition[s],” any “certificate/proof issued by said Committee

should be deemed ineffective.” In follow-up correspondence dated January 2007,

the Fujian Committee clarified that a child born overseas, but who has not

established permanent residency in China (by being entered in the household

registry), would not be counted even if the child was “administered as a Chinese

citizen.”


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      Wu’s particularized evidence does not compel a contrary conclusion. First,

although Wu argues that the 2006 and 2009 Tingjiang documents show that she

violated the local family planning policy, the BIA was entitled to give those

documents minimal weight, as they were not authenticated. See Chen, 672 F.3d at

964. Next, Wu argues that her relatives’ letters and her aunt’s statement

concerning their sterilizations show that China’s family planning policy was being

enforced. However, the BIA observed these relatives were not similarly-situated to

Wu, as they did not have U.S.-born children. Substantial evidence in the record in

Wu’s case provided a basis for the BIA to distinguish between U.S.-born and

Chinese-born children for the purposes of enforcing China’s family planning

policy. To the extent that Wu’s evidence conflicts with other evidence, we do not

reweigh the evidence.

      2.     Economic Persecution

      Although Wu’s forced sterilization claim fails, we must also consider her

economic persecution claims. Fines may amount to persecution if they cause a

“severe economic disadvantage,” considering the alien’s net worth, other sources

of income, and the conditions of the local economy. See In re T-Z-, 24 I. & N.

Dec. 163, 173-74 (BIA 2007) (internal quotation marks omitted). To satisfy the

severe economic disadvantage standard, the fine should reduce the alien “to an

impoverished existence.” Id. at 174. Substantial evidence also supports the


                                         33
               Case: 12-16150       Date Filed: 03/18/2014       Page: 34 of 37


finding that Wu did not show an objectively reasonable fear of economic

persecution.

       As noted above, it appears that Wu’s three children born in the United States

would not be counted towards China’s family planning policy so long as Wu and

Zhang do not try to establish their children’s legal permanent residence in China.

On appeal, Wu actually claims that she would not be able to register her children in

the family’s household. Thus, it is unlikely that Wu would even be subjected to

fines at all under China’s family planning policy.

       We recognize that, if Wu’s children are not registered in the household

registry, her children would be ineligible for free medical care and public

education. But, on this record, Wu has not shown that having to pay for those

benefits rises to the level of persecution.

       And, even assuming that Wu would be fined, Wu testified her family’s

income would be about 500 RMB a month or 6,000 RMB a year, and based on the

record evidence, the one-time fine would likely be 60 to 100 percent of her

family’s annual income. 18 The record reflects that, if Wu and Zhang could not pay

the fine at once, they may be allowed to pay it in installments and their wages

could not be garnished. Further, evidence in the record provides that a fine could

       18
         Although Wu testified that, in 2009, Zhang’s cousin was fined 60,000 RMB, Wu did
not specify Zhang’s cousin’s income, and thus, the record provides no basis for a conclusion that
Wu would be fined as much as Zhang’s cousin.


                                               34
               Case: 12-16150        Date Filed: 03/18/2014       Page: 35 of 37


be reduced or waived for “poor persons.” Accordingly, on this record, we are not

compelled to conclude that any fine will be imposed on Wu or that any potential

fine would reduce Wu to an impoverished existence. We thus cannot say that this

record compels a conclusion that there is a reasonable possibility that Wu would

face economic persecution if she returned to China. See In re T-Z-, 24 I. & N.

Dec. at 173-74. 19

       3.      Li v. U.S. Att’y Gen. and Related Cases

       Finally, we recognize that Wu’s brief cites Li v. U.S. Att’y Gen., 488 F.3d

1371 (11th Cir. 2007), but that case is materially different from Wu’s. Li involved

a motion to reopen and whether the petitioner alleged a prima facie case of asylum.

In Li, the BIA based its decision on a distinction between Chinese-born and

foreign-born children. Id. at 1376. Reversing the BIA, this Court concluded that

the BIA had “invoked this distinction despite the absence of any evidence in the

record . . . that either the Chinese national government or local Fujian officials

distinguish between parents of children born abroad and parents of children born in

China.” Id. (emphasis added). In Li, this Court found that “the only evidence in


       19
         An applicant for withholding of removal must show it is more likely than not that she
will be persecuted based on a protected ground. Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003); 8 C.F.R. § 208.16(b). Because this standard for establishing eligibility for
withholding of removal is higher than the standard for establishing asylum eligibility, an
applicant who, like Wu, fails to meet the burden of proof for asylum necessarily fails to establish
entitlement to withholding of removal. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819
(11th Cir. 2004).


                                                35
             Case: 12-16150      Date Filed: 03/18/2014    Page: 36 of 37


t[he] record supports the opposite conclusion” and showed that “for some purposes

at least, the Chinese government considers foreign-born children of Chinese

nationals equivalent to children born in China.” Id. (emphasis added). This Court

then held that, in “light of this record,” the BIA erred in relying on a distinction

between foreign-born and Chinese-born children to determine that Li failed to

establish a prima facie case for asylum in resolving Li’s motion to reopen. Id.

      In stark contrast to Li, Wu’s case involved a final merits determination with

a large evidentiary record and an evidentiary hearing, followed by fact findings by

the IJ and conclusions by the IJ and BIA. Importantly, the record in Wu’s case

contains considerable evidence that the Chinese government distinguishes between

foreign-born and Chinese-born children in applying its family planning law.

      Although Wu does not cite these cases, our Court has reached conclusions

similar to Li in two other motion to reopen cases: Jiang v. U.S. Att’y Gen., 568

F.3d 1252 (11th Cir. 2009) (lack of evidence) and Zhang v. U.S. Att’y Gen., 572

F.3d 1316 (11th Cir. 2009) (failure to consider evidence). In both cases, the BIA

had denied the motions to reopen.

      Reversing the BIA in Jiang for lack of evidence of a distinction between

Chinese-born and U.S-born children, this Court found “no discernable difference

between the evidence presented in Li and the evidential foundation before us

today.” Jiang, 568 F.3d at 1258. Reversing the BIA in Zhang, this Court


                                           36
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determined, inter alia, that, even if the BIA properly discounted a “Village

Committee Letter” and Zhang’s statement, the BIA’s decision overlooked, or

inexplicably discounted, the other record evidence that corroborated Zhang’s

claim. Zhang, 572 F.3d at 1320.20 Due to the lack of evidence in Jiang and the

failure to consider evidence in Zhang, we ordered reopening and remands to

consider the evidence and the merits of the claims.

      As the BIA has emphasized, asylum cases involving enforcement of China’s

family planning law require a case-by-case analysis. See J-H-S-, 24 I. & N. Dec.

at 197-98, 200-01, petition denied sub nom., Shao, 546 F.3d at 156-57 (according

Chevron deference to the BIA’s determination that claims based on an alien’s

alleged violation of China’s family planning law are reviewed on a case-by-case

basis). Wu’s record contains substantial evidence supporting the IJ’s and BIA’s

findings and conclusions, and the IJ and BIA properly considered that evidence.

       For all of the foregoing reasons, we deny Wu and Zhang’s petition.

      PETITION DENIED.




      20
         The Zhang court focused on a December 27, 2005 Directive from “the Lianjiang
County Guantou Township Committee” and the BIA’s failure to address “the Department of
State Reports on China and other record evidence.” Zhang, 572 F.3d at 1318, 1320.
                                            37
