Ai Chen v. Eric Holder, Jr. , 742 F.3d 171 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2279
AI HUA CHEN; JIN XIU LI,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 19, 2013 Decided: February 5, 2014
Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit
Judges.
Petition for review granted in part and denied in part by
published opinion. Chief Judge Traxler wrote the opinion, in
which Judge Motz and Judge Keenan concurred.
ARGUED: Alexa Taiz Torres, LAW OFFICE OF RICHARD TARZIA, Belle
Mead, New Jersey, for Petitioners. Walter Bocchini, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Gregory Marotta, LAW OFFICE OF RICHARD TARZIA, Belle
Mead, New Jersey, for Petitioners. Stuart F. Delery, Principal
Deputy Assistant Attorney General, Civil Division, Carl H.
McIntyre, Jr., Assistant Director, Christina J. Martin, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
TRAXLER, Chief Judge:
Petitioners Ai Hua Chen and Jin Xiu Li, both natives of
China’s Fujian Province, met and married in the United States
and are the parents of two children born to them here. Chen and
Li admit they are subject to removal, but seek asylum and
withholding of removal on the basis that one or both of them
will be persecuted for having violated China’s one-child policy.
The couple also seeks asylum and withholding of removal on the
grounds that they will face persecution for their Christian
faith upon returning to China. Despite finding both Chen and Li
to be credible witnesses, the immigration judge (“IJ”) and the
Board of Immigration Appeals (“BIA”), relying on an often-cited
2007 State Department report, China: Profile of Asylum Claims
and Country Conditions (“2007 China Report”), concluded that
neither petitioner established a well-founded fear of
persecution.
For the reasons that follow, we grant the petition for
review to the extent Chen and Li seek relief based on China’s
one-child policy and remand that claim for further consideration
by the agency. We deny the petition for review to the extent it
is grounded on the religious faith of the petitioners.
2
I.
A.
Li arrived in the United States in June 2001 without valid
entry documents and was placed in removal proceedings by the
Department of Homeland Security (“DHS”). Li sought political
and religious asylum, but an immigration judge denied his
application in 2003 and the Board affirmed in 2005. In 2010,
however, the Board granted Li’s motion to reopen.
Chen entered the United States in January 2003 on a
nonimmigrant K-1 visa. A K–1 nonimmigrant visa, known
colloquially as a “fiancé visa,” permits the foreign-citizen
fiancé of an American citizen to travel to the United States to
marry his or her citizen sponsor within ninety days of arrival.
See 8 U.S.C. § 1101(a)(15)(K)(i). Chen’s fiancé sponsor, as it
turned out, decided not to marry her. Chen, however, remained
in the United States after the expiration of the ninety-day
period. Chen and Li eventually met in 2005 and married in 2007.
Also in 2007, Chen gave birth to petitioners’ two children—
the first in January and the second in December. Chen did not
have legal status in the United States, however, and she worried
that if she were ever forced to return to China, she and Li
would be considered violators of China’s infamous one-child
policy. Thus, in August 2007, while pregnant with petitioners’
second child, Chen applied for political asylum, which led to
3
the DHS initiating removal proceedings against her for
overstaying her visa. In 2011, the proceedings against Chen
were consolidated with Li’s reopened proceedings.
Chen and Li seek asylum on two identical grounds. First,
Chen and Li claim that even though their children were born
abroad, Chinese family planning officials would still consider
the pregnancies to have been “out-of-plan” pregnancies and in
violation of China’s family-planning regulations. Chen and Li
believe that they would face fines, imprisonment and involuntary
sterilization upon their return to China. On this basis, they
seek political asylum, which is potentially available for any
person who establishes “a well founded fear that he or she will
be forced to undergo [involuntary sterilization]” or will be
“subject to persecution” for “other resistance to a coercive
population control program.” 8 U.S.C. § 1101(a)(42).
Li and Chen also seek religious asylum. As practicing
Christians, Li and Chen claim that, if removed, they would be
compelled by their beliefs to attend a “house church,” which is
illegal in China. They fear that participation in such a church
would result in their arrest and detention and that they would
be coerced by the government to renounce association with the
church.
4
B.
1.
Although the IJ found both Li and Chen to be credible
witnesses, he concluded that they failed to prove that their
genuine fear of future persecution under the family-planning
policy was objectively reasonable. The IJ’s reasoning was two-
fold. First, he determined that Li and Chen failed to prove
they are in violation of China’s family-planning policies.
According to the 2007 China Report, upon which the IJ heavily
relied, each married couple in the Fujian Province “is allowed
to have one child without a birth permit.” J.A. 419. A second
child, therefore, is not allowed unless the government grants
permission ahead of time by issuing a birth permit. But the IJ
found that children born abroad are not counted against the
number of children allowed unless the returning parents choose
to register them as part of the household registration. The
2007 China Report states that
U.S. officials in China are not aware of the alleged
official policy, at the national or provincial levels,
mandating the sterilization of one partner of couples
that have given birth to two children, at least one of
whom was born abroad.
. . .
. . . [T]he Population and Family Planning
Commission of Fujian Province stated in an October
2006 letter that children born abroad, if not
registered as permanent residents of China (i.e., not
entered into the parents’ household registration), are
5
not considered as permanent residents of China, and
therefore are not counted against the number of
children allowed under China’s family planning law. .
. .
J.A. 421-22.
Second, the IJ found that even if petitioners’ children
“counted” for purposes of China’s family-planning law, Li and
Chen would merely face fines or other economic penalties that do
not rise to the level of persecution. Again, the IJ rested his
factual determination on the 2007 China Report, which states
that “[a]ccording to the Fujian Provincial Birth Planning
Committee (FPBPC), there have been no cases of forced . . .
sterilization in Fujian in the last 10 years.” The Report,
however, also acknowledges that “[i]t is impossible to confirm
this claim” and cited reports of forced sterilizations in 2006.
J.A. 418. The 2007 China Report notes that the FPBPC claims
provincial officials impose only economic penalties—“social
compensation fees”—upon violators, not physically coercive
sanctions. J.A. 419. According to the 2007 China Report,
however, for returning Chinese nationals who are the parents of
U.S.-born children, even such economic penalties would be
triggered only if the parents decided “to register their
children as Chinese permanent residents in order to gain free .
. . educational and other social benefits.” J.A. 422.
6
The IJ noted some of the contradictory evidence submitted
by Li and Chen, but indicated without explanation that the 2007
China Report was simply “more persuasive.” The contradictory
evidence from Chen and Li included (1) an affidavit (and
supporting documents) from Renzun Yuan stating that immediately
after removal to the Fujian Province, he was sterilized for
having violated China’s family-planning law even though his sons
were born in the United States; (2) a 200-page scholarly
critique of the 2007 China Report from Dr. Flora Sapio
concluding that it was outdated, inaccurate or based on
anecdotal or unverifiable evidence; (3) written certifications
issued by the applicants’ respective local family planning
officials in Mei Hua Town, Chang Le City, and Ma Wei District of
Fuzhou City indicating that Li and Chen would be sterilized upon
returning to China under the circumstances; and (4) written
affirmations from Chen’s father and Li’s mother stating that the
certified statements from the family-planning officials were
issued at their request. The IJ also dismissed written
affirmations from two of the petitioners’ cousins and two
friends, all of whom attested to having undergone forcible
sterilization after having unauthorized children in China. The
IJ found such evidence lacking in probative value because the
children were not born abroad.
7
Finally, as described in greater detail below, Li and Chen
submitted evidence that the IJ either failed to mention or
ignored altogether. This evidence included the 2009 Annual
Report from the Congressional-Executive Commission on China
(“2009 CECC Report”). The CECC Report states that, as of 2009,
forced abortions and sterilizations were still occurring. While
acknowledging that Chinese law prohibits official abuses
relating to population control, the 2009 CECC Report notes that
the law also requires local officials to carry out regular
pregnancy tests on married women and administer unspecified
“follow-up services” to the extent needed to meet planning
goals. More specifically, local family-planning officials in
the Fujian Province are authorized to take “remedial measures”
for out-of-plan pregnancies, which the 2009 CECC Report
interprets as a euphemism for compulsory abortions.
Additionally, this report states that local authorities
continued to require sterilization as a means of enforcing birth
quotas.
The IJ also ignored or failed to mention evidence of a
webpage maintained by the Fuzhou City (Fujian) Family Planning
Committee which apparently provides a forum for citizens to
submit questions about the family-planning policy and receive
responses from the government. Li and Chen submitted a copy of
a screenshot from this website, dated June 16, 2010, showing an
8
April 2008 inquiry from “Robert Lin” about the consequences
faced by Chinese nationals who have out-of-plan children abroad
and the Committee’s response that “sterilization is mandatory”
for violators of the one-child policy in this situation. J.A.
824.
2.
The BIA adopted and affirmed the IJ’s decision that the
petitioners did not meet their burden of proving that there is
an “objectively reasonable possibility” that Li or Chen would be
“forcibly sterilized, excessively fined, or otherwise persecuted
for having two children without permission while in the United
States.” J.A. 4. The BIA offered additional reasons for
discounting the evidence offered by Li and Chen. For example,
the BIA observed that the certifications issued by family-
planning officials in Mei Hua Town, Chang Le City, and the Ma
Wei District of Fuzhou City, were entitled to little weight
because they were unauthenticated, unsigned, did not identify
the author, and were procured for litigation purposes. 1
1
The BIA also dismissed these certifications on the basis
that the 2007 China Report indicates that village committees are
“not authorized to make any decisions pertaining to family
planning issues.” According to the BIA, such documents should
therefore “be deemed ineffective.” JA 5. This conclusion badly
misses the mark. The relevant question for asylum purposes is
not what local authorities are authorized to do; the question,
particularly given the pressure local authorities face to meet
birth targets, is what they actually do. As discussed in
(Continued)
9
Likewise, the BIA found the statements from the petitioners’
family and friends claiming to have suffered forcible
sterilization to be unworthy of extended consideration because
the statements contained unsworn assertions from typically
biased witnesses and lacked sufficient detail to demonstrate
that the witnesses were subject to persecution. And, like the
IJ, the BIA was unpersuaded by the documents related to the case
of Renzun Yuan because they were submitted to support an
unrelated asylum applicant and the applicants offered no
explanation as to how their attorney obtained the documents.
Relying exclusively on the 2007 China Report, the BIA
concluded that there was no basis for believing that government
officials in the Fujian Province use coercive measures rising to
the level of persecution in circumstances such as these. The
BIA acknowledged that “there undoubtedly have been instances of
forced abortion and sterilization imposed on the parents of
children conceived and born [out-of-plan] in China,” J.A. 6, but
the BIA distinguished the petitioners’ claim on the basis that
their children were born abroad in the United States. The BIA
found that “[t]he evidence submitted in this case does not
greater detail below, petitioners’ evidence highlights the
importance of this distinction, demonstrating that local
practice does not always correspond with national policy.
10
document any instance where enforcement measures rising to the
level of persecution have been imposed on the parents of
children who are United States citizens.” Id. Finally, the
BIA, relying on the 2007 China Report, restated the IJ’s finding
that the only scenario in which sanctions might be imposed for
unauthorized overseas births would arise from the parents’
registration of their children as members of their households
upon returning to China in order to secure free public benefits.
Even then, the BIA found, the parents would face only economic
penalties.
The BIA did not mention the 2009 CECC Report or the Fuzhou
City (Fujian) Family Planning Committee’s response to Robert Lin
on its webpage that sterilization is mandatory for violators of
the one-child policy even when the out-of-plan children were
born abroad.
II.
Because the BIA “adopted and affirmed” the decision of the
IJ but supplemented that decision with its own opinion, “the
factual findings and reasoning contained in both decisions are
subject to judicial review.” Niang v. Gonzales, 492 F.3d 505,
511 n.8 (4th Cir. 2007). And, because the denial of asylum was
based on the conclusion that Li and Chen failed to satisfy their
burden of proving a well-founded fear of future persecution, we
review these decisions under the “substantial evidence”
11
standard. Dankam v. Gonzales, 495 F.3d 113, 119 (4th Cir.
2007). 2 Under this deferential standard, “administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). In other words, we cannot disturb the
agency’s “decision that an applicant is ineligible for asylum
unless we determine that the applicant’s evidence ‘was such that
a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.’” Djadjou v. Holder, 662
F.3d 265, 273 (4th Cir. 2011) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)).
In order to establish eligibility for asylum under the
Immigration and Nationality Act (“INA”), an applicant must
2
The IJ also held that petitioners’ asylum claim was time-
barred because they filed their applications after the usual
one-year deadline of arriving in the United States. See 8
U.S.C. § 1158(a)(2)(B). The BIA did not address this holding,
and neither party briefed the issue on appeal. To be brief but
clear: the IJ’s timeliness determination was wrong. An
application for asylum is still timely if, after the one-year
deadline has passed, “changed circumstances [] materially affect
the applicant’s eligibility for asylum.” 8 U.S.C.
§ 1158(a)(2)(D). “Changed circumstances” include changed
conditions in the applicant’s country of nationality and
“changes in the applicant’s circumstances.” 8 C.F.R.
§ 1208.4(a)(4)(1). Chen filed her asylum application while
pregnant with the couple’s second child. In light of China’s
family-planning policy, this second pregnancy plainly
constitutes a change in the couple’s circumstances that
“materially affects” their eligibility for asylum. See Qiu Yun
Chen v. Holder, 715 F.3d 207, 208 (7th Cir. 2013) (concluding
for same reason that an asylum application was timely).
12
demonstrate that he or she is entitled to refugee status. See 8
U.S.C. § 1158(b)(1)(A). Under the INA, a refugee is someone
“who is unable or unwilling to return to . . . [his or her]
country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A). Petitioners “may satisfy this burden
by showing either that they were subjected to past persecution
or that they have a well-founded fear of future persecution on
account of” one of the enumerated grounds. Djadjou, 662 F.3d at
272 (internal quotation marks and alterations omitted). The INA
specifically permits victims of China’s population control
policy to seek political asylum:
[A] person who has been forced to abort a pregnancy or
to undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a
procedure or for other resistance to a coercive
population control program, shall be deemed to have
been persecuted on account of political opinion, and a
person who has a well founded fear that he or she will
be forced to undergo such a procedure or subject to
persecution for such failure, refusal, or resistance
shall be deemed to have a well founded fear of
persecution on account of political opinion.
8 U.S.C. § 1101(a)(42).
Li and Chen do not claim to have suffered past persecution,
but seek asylum based on their fear of future persecution. The
“well-founded fear of persecution” standard set forth in §
1101(a)(42) has subjective and objective elements. The
13
subjective component requires the alien to “present[] candid,
credible, and sincere testimony demonstrating a genuine fear of
persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004) (internal quotation marks omitted). “The objective
element requires a showing of specific, concrete facts that
would lead a reasonable person in like circumstances to fear
persecution.” Id. at 187-88. Li and Chen’s asylum claim
faltered on the objective component. Although the IJ found both
Chen and Li to be credible witnesses, he concluded that they did
not prove their fear of future persecution was an objectively
reasonable possibility.
III.
Chen and Li contend that the IJ’s decision, as supplemented
by the BIA’s order, lacked substantial evidence. In their view,
the denial of asylum was unsupported by substantial evidence
because the IJ and BIA relied almost exclusively on cherry-
picked statements from the 2007 China Report and failed to
consider compelling contradictory evidence suggesting that
forced sterilizations are still a reality for Chinese nationals
such as Chen and Li.
Typically, we have approved of the BIA’s proclivity for
finding State Department Country Reports to be the definitive
word in asylum cases. After all, such reports are rightly
considered to be “highly probative evidence in a well-founded
14
fear case. Reliance upon these reports makes sense because this
inquiry is directly within the expertise of the Department of
State.” Gonahasa v. U.S. INS, 181 F.3d 538, 542 (4th Cir. 1999)
(citations and internal quotation marks omitted). In the
context of substantial-evidence review, “[a]bsent powerful
contradictory evidence, the existence of a State Department
report supporting the BIA’s judgment will generally suffice to
uphold the Board’s decision.” Id.On the other hand, the BIA should avoid treating these
Country Reports “as Holy Writ” immune to contradiction. Galina
v. INS, 213 F.3d 955, 959 (7th Cir. 2000) (Posner, C.J.).
Although “our job as a reviewing court is not to reweigh the
evidence,” we must “ensure that unrebutted, legally significant
evidence is not arbitrarily ignored by the factfinder” and that
the agency does not “base [its] decision on only isolated
snippets of [the] record while disregarding the rest.” Baharon
v. Holder, 588 F.3d 228, 233 (4th Cir. 2009). The BIA may not
“selectively consider evidence, ignoring that evidence that
corroborates an alien’s claims and calls into question the
conclusion the judge is attempting to reach.” Tang v. U.S.
Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009) (internal
quotation marks omitted).
In order for us to discharge “our responsibility to ensure
that unrebutted, legally significant evidence is not arbitrarily
15
ignored by the factfinder,” Baharon, 588 F.3d at 233, we require
the IJ and the BIA to “offer a specific, cogent reason for
rejecting evidence, whether testimonial or documentary, because
it lacks credibility,” Tassi v. Holder, 660 F.3d 710, 720 (4th
Cir. 2011). We recognize that the BIA and IJ are not required
to discuss every piece of evidence in the record, but they must
“announce their decision[s] in terms sufficient to enable a
reviewing court to perceive that they have heard and thought and
not merely reacted.” Ayala v. U.S. Att’y Gen., 605 F.3d 941,
948 (11th Cir. 2010) (internal quotation marks and alterations
omitted); see Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1368 (11th
Cir. 2011).
We believe Chen and Li offered “powerful contradictory
evidence,” Gonahasa, 181 F.3d at 542, for which the BIA and the
IJ failed to adequately account. As previously noted, Li and
Chen submitted the 2009 CECC Report. 3 The BIA’s failure to
account for the reports of the CECC is not unprecedented. See,
e.g., Qiu Yun Chen v. Holder, 715 F.3d 207, 209 (7th Cir. 2013)
(“We note with disapproval that the Board without explanation
3
Congress established the Congressional–Executive
Commission on China in 2000 “as a bipartite body, consisting of
federal legislators and executive-branch officials, whose
purpose in part is to ‘monitor the development of the rule of
law in the People’s Republic of China.’” Jiali Tang v. Synutra
Int’l, Inc., 656 F.3d 242, 247 n.4 (4th Cir. 2011) (quoting 22
U.S.C. § 6912(c)).
16
systematically ignores the annual reports of the Congressional–
Executive Commission on China, several of which we have cited,
even though they are pertinent official publications of the
federal government.”); Ji Cheng Ni v. Holder, 715 F.3d 620, 627
(7th Cir. 2013) (“The Board’s ongoing refusal to respond
meaningfully to [CECC reports] is difficult to understand.”);
see also Zhu Ying Dong v. U.S. Atty. Gen., No. 12-13673, 2013 WL
6511992, at *1 (11th Cir. December 13, 2013). The 2009 CECC
Report states that “[t]he use of [coerced abortions and
sterilizations] in the enforcement of population planning
policies remains commonplace despite provisions for the
punishment of official abuse outlined in the PRC Population and
Family Planning Law.” J.A. 759. According to this report,
population planning officials in the Fujian Province “are
authorized to take ‘remedial measures’ to deal with ‘out-of-
plan’ pregnancies”; “remedial measures” is “synonymous[] with
compulsory abortion.” Id. In 2008 and 2009, moreover, “[l]ocal
authorities continue[d] to mandate surgical sterilization and
the use of contraception as a means to enforce birth quotas.”
J.A. 215 (emphasis added).
The 2009 CECC Report appears to contradict the 2007 China
Report upon which the IJ and BIA rely so heavily in concluding
that compulsory sterilization for violators of the one-child
policy is rare. Yet, neither the IJ nor the BIA explains why
17
the 2009 CECC Report, a more recent official government
publication, is less persuasive than the 2007 China Report, nor
was there any attempt to reconcile these reports. There may be
a perfectly reasonable explanation for favoring one report over
the other, or there may be a way to reconcile these seemingly
contradictory documents. But the BIA has not revealed its
reasoning, and we are not permitted to guess what the BIA or the
IJ were thinking. See SEC v. Chenery Corp., 332 U.S. 194, 196
(1947) (“[A] reviewing court . . . must judge the propriety of
[agency] action solely by the grounds invoked by the agency.”).
Second, Li and Chen submitted a copy of a screenshot from a
Fujian Province government webpage dated May 6, 2008, as
evidence that Fujian family planning officials consider all
couples who have multiple unauthorized births to be in violation
of the one-child policy, even if such births occurred overseas.
See www.fjjsw.gov.cn:8080/html/5/383/9626_200856322.html. This
evidence suggests that the Fujian Province “Population and
Procreation Planning Committee” provided a forum for citizens to
submit questions and receive responses about the family planning
policy. J.A. 824. In response to a query about the
consequences a returning Fuzhou couple would face after having
two children in the United States, the committee indicated that
they were in violation of provincial family planning regulations
and that “sterilization is mandatory.” J.A. 825. This evidence
18
is significant in that it purports to come directly from the
same Fujian “Population and Procreation Planning Committee” that
is referenced in the 2007 China Report, but it upends the BIA’s
conclusion that there is no danger of sterilization where the
would-be violator’s children were born abroad. See Qiu Yun
Chen, 715 F.3d at 212 (explaining that the same Fujian webpage
“cuts the ground out from under what the Board called the ‘key
aspect of this case’—that because [petitioner’s] children were
born abroad, she is in no danger of being forced to undergo
sterilization”). To be sure, this document may not expressly
contradict the BIA’s finding that “the evidence submitted in
this case does not document any instance where enforcement
measures rising to the level of persecution have [already] been
imposed on the parents of children who are United States
citizens.” But it certainly portends forced sterilization of
the inquiring couple and suggests that other parents of U.S.-
born children have faced similar persecution. 4
4
Moreover, the affidavit of Renzun Yuan does flatly
contradict the BIA’s characterization of the record evidence, as
it documents an instance of forced sterilization of the father
of U.S.-born children. We also note that the BIA has used this
precise language before when relying on the 2007 China Report to
reject an asylum application from a similarly situated applicant
on the grounds that the record “does not document any instance
where enforcement measures rising to the level of persecution
have been imposed on the parents of children who are United
States citizens.” Li Ying Zheng v. Holder, 722 F.3d 986, 989
(7th Cir. 2013) (internal quotation marks omitted).
19
In our opinion, the foregoing contradictory evidence is
strong enough that it requires the agency to account for it in a
meaningful way. The boilerplate language used by the BIA in
discounting Li and Chen’s evidence was insufficient to
demonstrate that the agency gave it more than perfunctory
consideration. Presented with a record containing virtually
identical contradictory documentary evidence, the Seventh
Circuit has on more than one occasion rejected the BIA’s
exclusive reliance on the 2007 China Report and remanded for the
BIA to offer an explanation that accounts for such evidence.
See Li Ying Zheng, 722 F.3d at 991; Qiu Yun Chen, 715 F.3d at
214; Ji Cheng Ni, 715 F.3d at 630-31; see also Zhu Ying Dong v.
U.S. Atty. Gen., 2013 WL 6511992, at *1. We agree with the
thrust of these decisions that petitioners are “entitled to have
the expert agency, the BIA, evaluate in a transparent way the
evidence that [they have] presented” and that “[s]imply stating
that a 2007 document defeats a claim . . . will not do.” Ji
Cheng Ni, 715 F.3d at 631.
IV.
Chen and Li also seek asylum and withholding of removal
based on their Christian faith. Again, both Li and Chen were
found to be credible witnesses. Their task, therefore, was to
establish that their genuine subjective fear of persecution
based on their religious faith is objectively reasonable, i.e.,
20
that “[t]here is a reasonable possibility of suffering such
persecution,” 8 C.F.R. § 1208.13(b)(2)(B), and that “a
reasonable person in like circumstances” would fear religious
persecution. Ngarurih, 371 F.3d at 187-88.
Chen testified that when she met Li in 2005, he indicated
he was a practicing Christian and he invited her to attend
church services with him. Chen did not convert to Christianity,
however, until 2009 after talking to her neighbors in
Greensboro, North Carolina. Chen was baptized in 2010 and began
regularly attending a Chinese Christian Church in Greensboro
with Li and their children. Chen testified that if she is
removed to China, she would be compelled by her beliefs to
attend an unsanctioned “underground” or “house” church rather
than an “official registered church” that “preach[es] about the
. . . government’s policies.” J.A. 139, 140. Chen fears that
her participation in such a church would be discovered by the
government, subjecting her to arrest, torture, and fines. She
also fears that the government would force her to renounce her
participation in any unsanctioned church. Chen’s fear is based
to a great extent on the experience of her mother, who Chen
testified was persecuted based on her church affiliation in
2009. According to Chen, her mother was one of eight members of
an underground church to be arrested. Chen testified that her
mother was detained for six days, during which time she was
21
slapped in the face and forced to sign a written guarantee that
she would cease participating in her church. Chen indicated the
government also imposed on her mother a significant fine of
2,500 renminbi (RMB).
Li testified that he was a practicing Christian before he
left China and attended an unsanctioned house church in the
Fujian Province. Li testified that in March 2001, officials
from the Public Security Bureau came to his home to arrest him
for participating in the church but that he was able to elude
arrest. Li left China shortly thereafter and arrived in the
United States in June 2001. He testified that he subsequently
learned from his sister that authorities looked for him after
the 2001 incident, but that he did not have any information
suggesting that they have looked for him recently. Li was
baptized in September 2001 after arriving in the United States,
and he verified that he attends church with Chen and their
children.
Like Chen, Li indicated that his fear of being persecuted
on account of his religion was made real because of what he and
Chen were told happened to his mother-in-law in 2009 as a result
of her affiliation with an unsanctioned church. And, like Chen,
Li stated that if he returns to China, he will attend an
unsanctioned house church, for which he believes he will suffer
official retribution including arrest and torture.
22
Li and Chen also called their pastor, Steven Chang, to
testify at the hearing. Chang confirmed that he is the pastor
of a non-denominational Chinese Christian church in Greensboro
and that, as of the date of the asylum hearing, Chen and Li had
been attending the church for approximately one year. Chang
indicated that he was generally familiar with the plight of
Christian house churches because Chang had visited in China with
missionaries financially supported by his church. Based on his
experience, Chang indicated that government interference and
harassment of unsanctioned congregations tended to increase
proportionally with the visibility of the congregation. Thus, a
house church with fifty congregants or fewer might conduct its
services relatively unimpeded by the government, especially if
it operated in a large metropolitan area. In less populated
areas, Chang observed, it is more difficult to congregate
without attracting attention. Chang noted additionally that the
zealousness with which government officials police unsanctioned
religious activities varies by location. Chang indicated he had
never been to Chen and Li’s native Fujian Province, and he did
not offer observations specifically regarding the treatment of
Christians who attend unsanctioned churches there.
The IJ found that the applicants failed to establish that
their fear of future persecution on account of their Christian
faith was objectively reasonable. Relying on background
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materials published by the State Department, the IJ found that
“while participation in unsanctioned Christian churches, such as
house churches, is not approved by the Chinese government, those
that do participate are not generally persecuted.” J.A. 83.
The IJ noted that according to the 2007 China Report, house
churches, though not officially approved, are “quietly
tolerated” as long as they remain “small and unobtrusive.” J.A.
83. Citing estimates from the State Department’s 2010
International Religious Freedom Report, the IJ observed there
are as many as 50-70 million Christians in China who practice
their faith in connection with unsanctioned house churches.
Additionally, the IJ was unconvinced that the treatment suffered
by Chen’s mother reflected widespread persecution of house
church congregants in Chen’s home town because, according to the
IJ, Chen’s mother continued to attend a house church after her
arrest and experienced no further trouble.
Relying on the same background materials reporting on
religious freedoms in China, the BIA affirmed the IJ’s finding
that Li and Chen failed to establish a reasonable possibility
that they would be persecuted because of their Christian faith.
The BIA noted that the record did not support the IJ’s statement
that Chen’s mother had continued to attend a house church in
China, but it concluded that this error “[did] not undercut the
[IJ]’s reasoned conclusion that the respondents do not have an
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objectively reasonable fear of persecution in China based on
their religion.” J.A. 7.
Chen and Li argue that they established an objectively
reasonable fear of religious persecution through both the
general background materials published by the State Department
and specific evidence that they will risk persecution by
attending home churches in their respective home towns in the
Fujian Province. Because the BIA denied asylum based on the
conclusion that Chen and Li failed to carry their evidentiary
burden, we must not only conclude that the evidence presented
sufficed to prove an objectively reasonable fear of religious
persecution, but also that the “evidence presented was so
compelling that no reasonable factfinder could fail to find”
that a reasonable possibility of such persecution existed.
Dankam, 495 F.3d at 119 (emphasis added) (internal quotation
marks omitted).
While Chen and Li presented some contrary evidence, that
evidence is not so compelling that we cannot defer to the
agency’s factual determinations. First, we disagree with Chen
and Li that the State Department’s 2010 International Religious
Freedom Report and 2007 China Report support their claim for
religious asylum. Although these materials certainly reported
isolated cases of official harassment, the general picture
presented by both reports was simply that official treatment of
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Christians who attend unregistered house churches varies
substantially based on locale and that such Christians in many
regions practice their religion without interference. As noted
by both the IJ and the BIA, Steve Chang, the applicants’ pastor
who testified on their behalf at the asylum hearing, agreed with
the general assessment that house churches are able to operate
undisturbed in many areas of China. Moreover, Chen and Li have
not directed us to any portion of these reports suggesting
widespread persecution of Christians attending house churches in
the Fujian Province.
There was scant evidence presented specifically showing the
persecution of Christians attending house churches in the Fujian
Province. Primarily, this included the testimony of the
petitioners themselves regarding the arrest and abuse of Chen’s
mother, as well as her mother’s written statement regarding the
incident. Chen’s mother, however, attended a house church in
Chen’s hometown of Mei Dong Village in the Mei Hua Town area of
Chang Le City; Chen testified that if she and Li are removed,
they will live in and attend a house church in Li’s hometown of
Shangdao Village of the Mawei District of Fuzhou City. Li
testified that officials unsuccessfully attempted to arrest him
in 2001 for attending a house church while he still lived in
China. Li provided no testimony indicating that house church
congregants in the Mawei District were persecuted regularly or
26
even intermittently, and he conceded that he had no reason to
believe that government officials were still looking for him.
In sum, viewing the record as a whole, we cannot say that
the evidence compels us to conclude that there is a reasonable
possibility that either Chen or Li will suffer persecution on
account of their religious faith if they return to China. Thus,
we cannot disturb the BIA’s conclusion that Li and Chen failed
to establish a well-founded fear of future persecution.
Consequently, Chen and Li are not entitled to relief on the
BIA’s denial of religious asylum.
On a final note, having found substantial evidence supports
the agency’s denial of religious asylum, we necessarily uphold
the denial of Chen and Li’s application for withholding of
removal on account of their religious faith. See 8 U.S.C. §
1231(b)(3). “Because the burden of proof for withholding of
removal is higher than for asylum—even though the facts that
must be proved are the same—an applicant who is ineligible for
asylum is necessarily ineligible for withholding of removal
under § 1231(b)(3).” Camara v. Ashcroft, 378 F.3d 361, 367 (4th
Cir. 2004).
V.
For the foregoing reasons, we grant the petition for review
as it relates to the BIA’s denial of asylum and withholding of
removal based on the petitioners’ fear of being subjected to
27
involuntary sterilization under China’s one-child policy, and we
remand that particular claim for the agency to reevaluate it in
accordance with this opinion. In conducting its analysis on
remand, the BIA should account for, at a minimum, (1) the 2009
CECC Report, (2) the evidence relating to the “Robert Lin”
inquiry on the website of the Fujian Province Population and
Planning Committee, and (3) the affidavit of Renzun Yuan. We
deny the petition for review, however, as it relates to the
BIA’s denial of relief based on petitioners’ claim that they
will be persecuted on account of their Christian faith if they
return to China.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN PART
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