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Ying Chen; Qiang Chen v. Attorney General of the United States

March 18, 2011


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

The opinion of the court was delivered by: Sloviter, Circuit Judge.


Argued February 14, 2011

Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges


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 for having violated the one-child policy in that Ms. Chen will be forcibly sterilized and/or face economic persecution.*fn1

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 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-YZ-, 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 asylum. Id. The BIA vacated the opinion of the IJ, concluding that the respondent had not shown ...

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