CHEN V. HOLDER, NO. 12-2279

Decided: February 5, 2014

On petition for review, the Fourth Circuit held that (1) the Board of Immigration Appeals’ (BIA) decision to deny Jin Xiu Li’s (Li) and Ai Hua Chen’s (Chen) (collectively, the petitioners) applications for political asylum and withholding of removal—based on their fear of involuntary sterilization pursuant to China’s one-child policy—was not supported by substantial evidence, and (2) that the BIA’s decision to deny the petitioners’ applications for religious asylum and withholding for removal—based on the petitioners’ fear of persecution for their Christian faith—was supported by substantial evidence.  The Fourth Circuit therefore granted the petition for review in part and denied it in part.

Li and Chen are both natives of the Fujian Province in China.  Li entered the United States without proper documentation in June 2001.  The Department of Homeland Security (DHS) placed him in removal proceedings.  Li applied for political and religious asylum; however, in 2003, an immigration judge denied the application.  The BIA affirmed the decision of the immigration judge in 2005, but granted Li’s motion to reopen in 2010.  Chen, on the other hand, entered the United States legally in January 2003.  She entered the country on a nonimmigrant K-1 visa, 8 U.S.C. § 1101(a)(15)(K)(i), which “permits the foreign-citizen fiancée of an American citizen to travel to the United States to marry his or her citizen sponsor within ninety days of arrival.”  Chen’s fiancé decided not to marry her, and Chen stayed in the United States after the ninety-day statutory period expired.  Li met Chen in 2005 and married her in 2007.  Chen gave birth to two children in 2007.  She applied for political asylum in August of that year; however, as a result of her application, DHS commenced removal proceedings against her.  These proceedings were consolidated with Li’s proceedings in 2011.

Li and Chen sought political and religious asylum.  They claimed that Chinese officials would find them in violation of the one-child policy, and they would therefore be subject to “fines, imprisonment and involuntary sterilization” when they returned to their native country.  With regard to religious asylum, Li and Chen asserted that, as practicing Christians, their beliefs would compel them to attend an illegal “house church” in China—which “would result in their arrest and detention,” as well as governmentally coerced renunciation of their ties with the church.

The immigration judge (IJ) found both petitioners to be credible witnesses with regard to their application for political asylum and related application for withholding for removal.  However, he found that Li and Chen “failed to prove that their genuine fear of future persecution under the family-planning policy was objectively reasonable.”  Citing a 2007 report by the State Department titled China: Profile of Asylum Claims and Country Conditions (the 2007 China Report), the IJ found that the petitioners did not prove they were in violation of the one-child policy; furthermore, even if Li and Chen were in violation of the one-child policy, they would only face fines or other economic penalties that fail to qualify as persecution.  Though Li and Chen submitted contradictory evidence—including an affidavit from a man named Renzun Yuan, who said he was sterilized after his removal to the Fujian Province for violating the one-child policy “even though his children were born in the United States”—the IJ simply indicated that he found the 2007 China report “more persuasive.”  Additionally, the petitioners submitted evidence that the IJ did not mention or simply ignored, including the governmentally issued 2009 Annual Report from the Congressional–Executive Commission on China (2009 CECC Report) and a screenshot of a website maintained by the family planning committee in Fuzhou City, Fujian (the family planning screenshot), containing a response to a question about “out-of-plan” children born to Chinese nationals in other countries; the committee responded that, in this situation, “sterilization is mandatory” for violators of the one-child policy.  The BIA adopted and affirmed the decision below.  The BIA noted evidentiary issues with certain items of contradictory evidence submitted by the petitioners.  While the BIA also relied on the 2007 China Report, it did not mention the family planning screenshot or the 2009 CECC Report.

The IJ also found the petitioners to be credible witnesses with regard to their religious asylum application and related withholding of removal application.  However, the IJ found that—despite the testamentary evidence to the contrary provided by Li, Chen, and their pastor Steven Chang—the petitions did not establish an objectively reasonable fear of future religious prosecution.  The IJ relied on the 2007 China Report and the State Department’s 2010 International Religious Freedom Report in reaching this decision, which the BIA affirmed.

On appeal, the Fourth Circuit noted that, while State Department Country Reports are “highly probative evidence in a well-founded fear case,” Gonahasa v. U.S. INS, 181 F.3d 538, they are not to be treated “as Holy Writ,” Galina v. INS, 213 F.3d 955; furthermore, immigration judges and the BIA must provide their decisions “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.  The Fourth Circuit then found that the IJ and the BIA did not adequately account for the petitioners’ contradictory evidence; on remand, the Fourth Circuit ordered the BIA to account for the Renzun Yuan affidavit, the 2009 CECC Report, and the family planning screenshot.

However, with regard to the BIA’s decision on the application for religious asylum and withholding of removal, the Fourth Circuit found that Li and Chen’s evidence was “not so compelling that we cannot defer to the agency’s factual determinations.”

Full Opinion

– Stephen Sutherland

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