07-3970-ag, 08-2504-ag
Zheng v. Holder


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 15th day of January, two thousand and ten.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
                        Circuit Judges.
            LAWRENCE E. KAHN,*
                        District Judge.
_________________________________________________

SHU XIANG ZHENG**,
                                                             Petitioner,

                         -v-                                 (07-3970-ag, 08-2504-ag)

ERIC H. HOLDER, JR., ATTORNEY GENERAL,***
                                                             Respondent.


Appearing for Petitioner:      Richard Tarzia, Belle Mead, NJ

Appearing for Respondent:      Nairi M. Simonian, Civil Division, U.S. Department of Justice,
                               Washington, DC

       *
          The Honorable Lawrence E. Kahn, United States District Court for the Northern
District of New York, sitting by designation.
       **
           The Clerk of Court is directed to amend the official caption in this case to conform to
the listing of the parties above.
       ***
           Eric H. Holder, Jr., is automatically substituted as the respondent in this case pursuant
to Federal Rule of Appellate Procedure 43(c)(2).
       Petition for review of an order of the Board of Immigration Appeals (“BIA”).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review in 07-3970-ag is GRANTED and the petition for
review in 08-2504-ag in DENIED as moot.

        Petitioner Shu Xiang Zheng (“Zheng”) seeks review of an August 27, 2007, order and
decision of the BIA, vacating the January 30, 2003, order and decision of the Immigration Judge
(IJ Paul A. DeFonzo) granting petitioner’s application for asylum. Zheng also seeks review of a
May 9, 2008, order and decision of the BIA denying her motion to reopen her deportation
proceedings. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

         This case is one of a number of cases that the Second Circuit remanded to the BIA so that
it could develop standards for when a petitioner has established a well-founded fear of
persecution – namely forced sterilization – as a result of violating China’s family planning
policies. The BIA recently developed such standards in three related cases, including Matter of
J-W-S-, 24 I&N Dec. 185 (BIA 2007), all of which we upheld in Jian Hui Shao v. Mukasey, 546
F.3d 138, 163 (2d Cir. 2008). After the BIA issued its decisions announcing the new standards,
it reaffirmed its vacateur of the IJ’s grant of asylum in this case. The BIA found that Matter of J-
W-S- was directly on point and that Zheng’s case could be resolved without remanding to the IJ.
Zheng now seeks review of the BIA’s decision.

        When the BIA does not adopt the decision of the IJ to any extent, we review only the
decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We assume
petitioner to be credible “because the IJ found [her] to be such and the BIA did not disturb that
finding.” Alibasic v. Mukasey, 547 F.3d 78, 84 (2d Cir. 2008). We review factual findings
under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of law and the
application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
2008).

        Zheng first argues that the BIA held her to an “exceedingly high standard of proof” by
requiring her to show a national policy of forced sterilization, as opposed to a local policy in her
home province of Fujian. We recently rejected this argument. See Shao, 546 F.3d at 163 (“We
identify no legal error in [the BIA’s] analysis and no prejudice to [petitioner]’s ability to
demonstrate a reasonable possibility of enforcement amounting to persecution at the local
level.”). As in Shao, the BIA concluded in this case that “the evidence of record did not
demonstrate that the Chinese Government has a national policy of requiring forced sterilization
of a parent who returns with children born in the United States,” and that, furthermore, Zheng
had presented no evidence that she faced a particularized risk on account of the local policies in
Fujian. Zheng’s argument that she was required to show a national policy is without merit.1


       1
          Zheng also argues that the BIA erred in concluding that the “fines or other economic
penalties” to which she would be subjected “do not rise to the level of persecution.” A monetary

                                                  2
        Zheng also contends that the BIA failed to consider material evidence on remand that
demonstrates that she is at risk for forced sterilization if she is returned to China. “[W]here the
BIA has given reasoned consideration to the petition, and made adequate findings, it [need not]
expressly parse or refute on the record each individual argument or piece of evidence offered by
the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (internal quotations
omitted). Moreover, we “presume that [the agency] has taken into account all of the evidence
before [it], unless the record compellingly suggests otherwise.” Xio Ji Chen v. U.S. Dept’t of
Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006).

        Most of the evidence Zheng cites in her brief was not material to her claim because it
either did not discuss the use of forced abortions and sterilizations in enforcing the family
planning policy or referenced unattributed reports of forced abortions and sterilizations of
individuals in provinces other than Zheng’s home province of Fujian. The BIA had previously
found almost identical evidence insufficient to show a well-founded fear of persecution. See
Matter of J-W-S-, 24 I&N Dec. at 192. Although the BIA did not reference each and every piece
of evidence in the record, it explained that such evidence, including “country condition report[s]”
and “other documentary evidence such as Congressional reports,” was insufficient for the same
reasons stated in Matter of J-W-S-. With one exception, this was more than sufficient to
discharge BIA’s duty to consider the evidence in the record.2

        The one exception is the affidavit of Jin Fu Chen, which the BIA did not reference or
explicitly consider in its decision. The affidavit states that Chen and his wife, both natives and
citizens of China from Fujian province, resided in Japan between 1998 and 2003, during which
time his wife gave birth to one girl and one boy. He further states that after his family was “sent
back” to China, their “village committee and [their] town government cadres came to [their]
house and said that [they] already gave birth to two children, and violated Chinese Family
Planning Policy,” and told him and his wife that “[e]ither one of [them] must have a sterilization
operation.” A few months later, “Family Planning officials forcibly took [him] to Chang Le
Family Planning Station and [he] had a sterilization operation.”

        Unlike the other evidence presented to the BIA on remand, the Chen affidavit provides a
specific, detailed example of a parent returning from abroad with two children to Fujian province



fine only rises to the level of persecution if it would cause “severe economic disadvantage.”
Matter of T-Z-, 24 I&N Dec. 163, 170-75 (BIA 2007); see also Guan Shan Liao v. U.S. Dep’t of
Justice, 293 F.3d 61, 70 (2d Cir. 2002). Though the evidence originally submitted by Zheng
would not have been sufficient to require a finding that the fine would cause such profound
disadvantage, the new evidence in the Ji Fu Chen affidavit casts the previous evidence in a new
light. Under the circumstances, on remand the agency should consider the question of whether
the fines, etc., rise to the level of persecution in light of the Chen affidavit.
       2
          As with the economic evidence referred to in footnote 1 supra, the more generalized
evidence that was submitted, though inadequate in itself, should be reconsidered in light of the
specific evidence given by the Ji Fu Chen affidavit, discussed below.

                                                 3
who was subjected to forced sterilization. Zheng appears to be similarly situated to Chen as they
are both from Fujian province and each had two children abroad. See Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005) (evidence of forced sterilization of an individual in similar
circumstances is relevant to question of well-founded fear). It was precisely this sort of evidence
of local enforcement efforts that the BIA found lacking in Matter of J-W-S-. See Shao, 546 F.3d
at 165-66. Given that the BIA concluded that Zheng had failed to adduce any evidence beyond
“generalized statements” that she would be subjected to some form of punishment upon her
return, we cannot be sure that the BIA adequately considered the Chen affidavit in reaching its
decision. See Jorge-Tzoc v. Gonzales, 435 F.3d 146, 149 (2d Cir. 2006); Shou Yung Guo v.
Gonzales, 463 F.3d 109, 115 (2d Cir. 2006).

        The Chen affidavit was submitted to BIA upon remand from the Second Circuit pursuant
to our remand order and therefore was not part of the record before the IJ. See Stipulation and
Order of Settlement and Dismissal, No. 04-4139-ag (Oct. 11, 2006) (“Either party may file a
motion to remand for consideration of supplemental evidence that complies with all of the
applicable regulations.). The BIA is not permitted to engage in independent factfinding or
consider evidence that is not already in the record. See 8 C.F.R. 1003.1(d)(3)(iv); Belortaja v.
Gonzales, 484 F.3d 619, 625 (2d Cir. 2007). When further factfinding is required, “the
appropriate course is remand to the IJ.” Xian Tuan Ye v. Dep't of Homeland Sec., 446 F.3d 289,
296 (2d Cir. 2006). Because the Chen affidavit represents material evidence directly relevant to
Zheng’s claim of persecution, the BIA erred in not remanding to the IJ for supplementation of the
factual record.

       We therefore GRANT the petition for review in 07-3970-ag and REMAND to the BIA
for consideration of the Chen affidavit and further development of the factual record.3
Consequently, Zheng’s petition for review of the denial of her motion to reopen in 08-2504-ag is
DENIED as moot. See Koudriachova v. Gonzales, 490 F.3d 255, 264 (2d Cir. 2007).


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk

                                                      By:_______________________________




       3
           Zheng also argues that the BIA’s factual finding with respect to her risk of forced
sterilization was not supported by substantial evidence. Because we remand to the BIA for
reconsideration of Zheng’s application, we do not reach this question.

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