Jin Xiu Chen v. Holder ( 2013 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1883
JIN XIU CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Gregory Marotta and Law Office of Richard Tarzia on brief for
petitioner.
John D. Williams, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Principal Deputy Assistant Attorney General, and Russell J.
E. Verby, Senior Litigation Counsel, on brief for respondent.
June 28, 2013
LYNCH, Chief Judge. A Chinese national, Jin Xiu Chen,
petitions for review of the denial of relief of asylum and
withholding of removal, based on her claim that the three children
she gave birth to while overstaying in the U.S. mean that she has
an objectively reasonable fear that she would be sterilized against
her will upon return to China. This Court has already rejected, in
Zheng v. Mukasey, 546 F.3d 70, 73 (1st Cir. 2008), the basic
argument Chen makes -- that China enforces a blanket national
policy of forcibly sterilizing Chinese who return from abroad with
more than one child. Zheng held that even if it was likely that
petitioner would face sanctions and penalties upon her return, that
was "insufficient to constitute persecution." Id. at 72.
Chen makes no claim of past persecution. It is future
persecution she says she fears. She must show that her fear of
future persecution is both subjectively genuine and objectively
reasonable. Vanchurina v. Holder, 619 F.3d 95, 99 (1st Cir. 2010).
What was left open to Chen, given our Zheng decision, was
to show that, nonetheless, on the facts of her case, she faces an
objectively reasonable fear of forced sterilizations on return from
local decisionmakers in Changle, in Fujian Province, China, because
of her children.
The Immigration Judge (IJ) (who determined Chen was
credible) and Board of Immigration Appeals (BIA) found, in detailed
opinions denying relief, that she had failed to do so. The BIA
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adopted and affirmed the IJ's decision and added to the reasoning.
So our review is of the whole of those two decisions. Hussain v.
Holder, 576 F.3d 54, 57 (1st Cir. 2009). The BIA did not reach the
IJ's decision that even if petitioner had met the criteria for
asylum, the IJ would still have denied relief as a matter of
discretion. We have jurisdiction under 8 U.S.C. § 1252(a)(1).
On judicial review, Chen's arguments are that we must
vacate and remand her case because (1) evidence compels the
conclusion that her well-founded fear of persecution is objectively
reasonable; (2) the agency committed errors by giving limited
weight to certain documents she filed; and (3) even assuming she
did not show she would be forcibly sterilized, the record compels
the conclusion that she would be forced to pay onerous fines and
that would amount to persecution.
Under the substantial evidence standard, unless there is
an error of law (and there is none here) we may not reverse unless
the record would compel a reasonable factfinder to reach a
different outcome. Zhou Zheng v. Holder, 570 F.3d 438, 440 (1st
Cir. 2009).
We deny the petition.
I.
Most of the key facts are undisputed and are taken from
the IJ's findings. Petitioner entered the country on a limited
visitor's permit visa in 1999, at about age 23, having paid
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snakeheads to smuggle her in. She deliberately overstayed and
concedes she is removable.
In January 2003 she married a man who runs a restaurant
in New Hampshire. She now has three children, born in this
country. Her specific claim of persecution was that as a returning
Chinese parent with more than one child, her home city or province
would require her to undergo forced sterilization, so that she had
a well-founded fear of persecution. See 8 U.S.C. § 1101(a)(42)(A).
After some procedural history not relevant here, an IJ in Boston
heard the matter on April 22, 2010. At that hearing the parties
stipulated that: (1) Chen has three United States citizen children;
(2) if Chen had given birth to her children in China, and if Chen
and her family were in China, she would be in violation of the
family planning policy of China, which is enforced differently in
different provinces; (3) Chen would testify consistently with her
prior proceeding; and (4) Chen's fear of future persecution in
China on account of her three United States-born children was
subjectively genuine.
Against that backdrop we describe the IJ's and BIA's
reasoning on those issues which lie at the heart of the case.
The IJ found that the evidence did not establish that
Chen's fear of future sterilization was objectively reasonable.
The IJ found two State Department reports "highly probative" on two
points. A 2009 Report stated that in China "the law prohibits the
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use of physical coercion to compel persons to submit to abortion or
sterilization." A 2007 Report stated that for over a decade, there
had been no forced sterilizations or abortions in Fujian Province,
from which Chen had come. Rather, the report stated, only economic
penalties were leveled and failure to pay the fee would not result
in sterilization. The second point established by the reports is
that persons in Chen's situation may not be subject to family
planning policies at all. The 2007 Report says U.S. officials were
aware of no policy mandating sterilization where at least one of
two children had been born abroad. The BIA discussed and affirmed
these findings by the IJ.
The IJ then considered and rejected the additional
documents submitted by Chen. The USCIS Report submitted in fact
contradicted her claim of forced sterilization, even on the
assumption that the family planning policy would be applied to her.
As to most other documents she submitted, a number of
court decisions have already held that such documents or types of
documents are insufficient to establish petitioner's proposition:
that there are forced sterilizations of returnees to China who had
more than one child born in the United States. See Zheng, 546 F.3d
at 72-73. The Aird affidavit, which has been used in several
similar cases, has been consistently found to be less convincing
than the State Department Country Reports. See id. at 72
(collecting cases); In re J-W-S-, 24 I. & N. Dec. 185, 189-90 (BIA
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2007). These Reports indicate that a returnee who has children
will be penalized upon return, if at all, only by fines or other
economic penalties. The BIA so held.
That leaves the individualized evidence: form village
committee certificates, letters from villagers, and statements from
family members. The IJ found that the form village committee
certificates were not sufficiently reliable, and that they did not
establish Chen's point. That was because the Fujian Population and
Family Planning Commission has said that such village committees
have no authority to impose sanctions against returnees and that
their certificates are ineffective. Beyond that, even those
certificates she submitted do not say she would be sterilized by
force. The BIA supportably held that the forms were secured for
litigation purposes, and were unauthenticated, unsigned, and failed
to identify the authors, and therefore were insufficient.
The IJ correctly found that the letters from family
members were of limited value, and did not establish Chen's burden.
They had limited value, even apart from issues of hearsay,
unavailability of witnesses for cross-examination, and bias. See
Zheng, 546 F.3d at 72 ("Absent substantiation, self serving
affidavits from petitioner and her immediate family are of limited
evidentiary value."). Further, none of the letters concerned
sterilization of an individual who had given birth in the United
States and returned. The declarants simply were not similarly
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situated. And none of the declarations was sworn or accompanied by
an affidavit. There was no abuse of discretion in the limited
weight the IJ gave to Chen's evidence. See Pan v. Gonzales, 489
F.3d 80, 87 n.6 (1st Cir. 2007) ("[W]e defer to the factfinder's
reasonable choices from conflicting evidence.").
Chen's attempt to avoid these conclusions by spinning an
argument based on China's nationality and citizenship laws was
reasonably rejected. That argument, as the BIA said, does not
"verify her claim that returnees with children born in the United
States are necessarily subjected to coercive family planning
practices." The BIA noted evidence that children born abroad who
are not entered into household registrations are not counted
against the number of children allowed under China's family
planning law.
This analysis disposes of the first two arguments in
Chen's petition. Her third argument is a fall back or alternative
argument that even if only a money penalty would be enforced,
assuming Chen is subject to Chinese family planning policies at
all, that money penalty amounts to persecution. Both the IJ and
the BIA supportably rejected this claim.
As the IJ found and the BIA noted, Chen did not testify
that she would be unable to pay the penalty she alleged would be
levied. Indeed, she did not say she was unable to pay the fine,
she said she was unwilling to do so. Further, she did not
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challenge that finding to the BIA. She did not show that she had
a well-founded fear of economic persecution.
The failure of her claim for asylum dooms her withholding
of removal claim, which fails as well. Zhou Zheng, 570 F.3d at
443.
This is now the third time we have rejected asylum claims
of this sort. See id. at 443; Zheng, 546 F.3d at 73. Once again
we reject these claims, and deny Chen's petition.
So ordered.
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