Xiu Hua Yu v. Attorney General of the United States , 408 F. App'x 583 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 08-4851 & 09-3427
___________
XIU HUA YU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-046-384)
Immigration Judge: Honorable Rosalind Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2010
Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges
(Opinion filed November 24, 2010)
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OPINION
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PER CURIAM
Xiu Hua Yu petitions for review of two decisions of the Board of Immigration
Appeals (BIA). For the reasons below, we will grant the petition for review in No. 08-
4851 and deny the petition for review in No. 09-3427.
Yu, a native of China, entered the United States in 1996. In August 2004, she was
charged as removable as an alien present in the United States without being admitted or
paroled. She conceded removability and applied for asylum and withholding of removal.
Yu argued that she would be persecuted in China under the family planning policy
because she has four children and desires to have a fifth child. The Immigration Judge
(IJ) denied the asylum application as untimely but granted withholding of removal. The
IJ concluded that there was a clear probability that Yu would be sterilized if she returned
to China with four children. She discounted the cases relied on by the government to
oppose Yu‟s application because the cases involved Chinese citizens who had given birth
to two children in the United States. Because it was the Year of the Golden Pig, a year
considered lucky in Chinese culture, the IJ found that there was evidence that the
resulting increased births would lead to increased enforcement of the family planning
policy. The IJ also referred to newspaper articles describing protests of the family
planning policy and the resulting government crackdown. The government appealed the
IJ‟s decision to the BIA.
The BIA reversed the IJ‟s grant of relief. Citing Matter of J-W-S-, 24 I. & N. Dec.
185 (BIA 2007), and Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), the BIA
concluded that there was insufficient evidence that China sterilizes its citizens for having
children in other countries and that Yu‟s fear was speculative. It concluded that the IJ
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had wrongly focused on the number of children Yu had and not that they were born
outside of China. Likewise, the BIA distinguished the sterilizations of Yu‟s mother and
mother-in-law from Yu‟s situation because Yu‟s children were not born in China. The
BIA determined that there was no evidence of Yu‟s “other resistance” to the family
planning policy. Yu filed a timely petition for review which was docketed at No. 08-
4851.
Yu also filed a motion to reopen and to reconsider with the BIA. She also argued
that her stated opposition to sterilization and her desire to have a fifth child were
sufficient to establish her resistance to China‟s family planning policy and eligibility for
withholding. She asserted that she would be subject to economic persecution if returned
to China.
The BIA denied the motion. The BIA concluded that her statement of opposition
to the family planning policy was not sufficient to support eligibility for refugee status.
The BIA also determined that Yu had not shown that she would be subject to economic
persecution. Yu filed a petition for review from the BIA‟s denial of the motion to reopen,
which was docketed at No. 09-3427 and consolidated with No. 08-4851.
Withholding of removal
We have jurisdiction over the denial of Yu‟s claims for withholding of removal
under 8 U.S.C. § 1252. To establish eligibility for withholding of removal, Yu needed to
demonstrate that it was more likely than not that her life would be threatened in China on
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account of the family planning policy. Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir.
2005); 8 U.S.C. § 1231(b)(3)(A). We review the factual findings on which the BIA
relied under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d
Cir. 2003) (en banc). These findings are considered conclusive unless “any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
We exercise de novo review over the BIA‟s legal decisions. Toussaint v. Attorney
General, 455 F.3d 409, 413 (3d Cir. 2006).
Yu argues that the BIA improperly reversed the IJ‟s grant of withholding of
removal using de novo review instead of the clearly erroneous standard. We recently
held that “an IJ‟s forecasting of future events constitutes fact-finding that the BIA must
review under the clearly erroneous standard.” Huang v. Att‟y Gen., 620 F.3d 372, 382-
83 (3d Cir. 2010). Thus, the IJ‟s determination of the likelihood that Yu will be sterilized
if removed to China was subject to review by the BIA for clear error. The BIA never
explained what standard it was using to review the IJ‟s fact-finding. It stated that it found
that “there is insufficient evidence that the respondent‟s country sterilizes its citizens for
having children in foreign nations.” Supp. A.R. at 27 citing Matter of J-W-S-, 24 I. & N.
Dec. at 191; Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008), and Matter of S-Y-G-, 24
I. & N. Dec. 247.1 Our review of the BIA‟s decision is hampered by the lack of clarity
1
In Matter of J-W-S-, the BIA concluded that China did not have a policy of
requiring the forced sterilization of a parent who returns with a second child born outside
of China. In Matter of S-Y-G-, the BIA determined that the record did not support a
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surrounding the standard of review it used. “If [the BIA] wishes to reverse factual
findings it believes are not „established by evidence entered into the record,‟ . . . it needs
to apply the clearly erroneous standard in such a way that reviewing courts understand
that standard to be in play.” Kaplun v. Att‟y Gen., 602 F.3d 260, 272 n.10 (3d Cir. 2010)
(internal citation omitted). Accordingly, we will grant the petition for review in No. 08-
4851, vacate the BIA‟s November 25, 2008, decision, and remand the matter for the BIA
to apply the correct standard of review. We express no opinion as to the merits of Yu‟s
claims.
Motion to reopen and reconsider
We review the denial of a motion to reopen for an abuse of discretion. Filja v.
Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, we may reverse the
BIA‟s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002). Because the BIA did not review any factual findings
by the IJ in its resolution of the motion to reopen and reconsider, the confusion over the
standard of review used by the BIA in its November 25, 2008, decision does not affect
our review of the BIA‟s denial of the motion to reopen and reconsider.2
Resistance
finding that forcible sterilizations would be required in Fujian province after the birth of a
second child. It noted that documents indicated that sanctions for violating the family
planning policy would likely be economic.
2
When considering a motion to reopen, the BIA has the responsibility of
considering the facts in the first instance. 8 C.F.R. § 1003.2(c)(3)(ii).
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Yu argued in her motion to reopen that she showed “other resistance” to the
Chinese family planning policy. She contended that she clearly stated that she was
opposed to the policy, would have a fifth child if returned to China, and would oppose
being sterilized. She asserted that this statement of opposition is sufficient to
demonstrate “other resistance.” The BIA concluded that this was not sufficient, and we
agree. The BIA did not abuse its discretion in determining that Yu did not show that it is
more likely than not that she would be persecuted in China for her “other resistance” to
the family planning policy.
Economic Sanctions
Yu also argued in her motion to reopen that she would be subject to economic
persecution if removed to China. She relied on our decision in Li v. Attorney General,
400 F.3d 157 (3d Cir. 2005). In Li, we held that “the deliberate imposition of severe
economic disadvantage which threatens a petitioner‟s life or freedom may constitute
persecution.” Li, 400 F.3d at 168. However, the BIA‟s function is to review the existing
record; Clifton v. Holder, 598 F.3d 486, 492 (8th Cir. 2010); 8 C.F.R. § 1003.1(d)(3)(iv);
and we, likewise, may decide the petition only on the administrative record on which the
order of removal was based. 8 U.S.C. § 1252(b)(4)(A). Thus, evidence relied on in Li or
other cases, but not introduced in Yu‟s administrative proceedings, cannot support Yu‟s
claims.
Yu argues that the BIA failed to address the evidence in the record in the 2007
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Profile that describes the economic consequences for violating the family planning
policy. However, she does not address this evidence sufficiently herself. Article 39 of
China‟s Family Planning Law, attached as an appendix to the 2007 Profile, states that
violators of the family planning policy will be fined in the amount of “one year‟s
disposable income for a county (city, district) town-dweller or the average net income of
a farmer.” A.R. at 177. For a violator with two additional children, the amount is four to
six times that amount. Yu has not pointed to any evidence in the record as to what base
income would be used to calculate the fines in her county, city, or district in China.
Moreover, there is nothing in the record concerning Yu‟s or her husband‟s current
financial situation with respect to her ability to pay any fine that might be imposed in
China. Yu also argues that she would be unable to get any kind of job but does not point
to any evidence in the record to support this. We conclude that substantial evidence
supports the BIA‟s finding that Yu had not shown that it is more likely than not that she
would suffer economic persecution if removed to China.
For the above reasons, we will grant the petition in No. 08-4951, vacate the BIA‟s
November 25, 2008, decision, and remand the matter for the BIA to review the IJ‟s fact-
finding under the clearly erroneous standard. We will deny the petition in No. 09-3427.
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