marriage age had a marriage certificate and a birth permit that was the only legal legal pregnancy which resulted in her first child all three other pregnancies resulted in her undertaking extraordinary measures to avoid forced abortion two of two of which included fleeing to the united states while pregnant excuse me in order to carry these these two children to term the third pregnancy was was the one that she submitted under compulsion to an abortion procedure while in china in order to avoid a forcible forced what was the a compulsion in her case it was economic your undertake and abortion and this is a case where the government didn't know about this third pregnancy rights council before you and this is an important point right with if it was forced abortion you said there economic coercion and you said job and that's what you said when she fired was she threatened with being fired can you help us out with what exactly do you mean by way of economic coercion well her her second child which she brought back to united states was not allowed to register in the household not allowed to go to public school she applied and was rejected not allowed medical care ok and so let's stop there because those are in your briefing and  and what would be helpful is if you could follow through on those my understanding through the whole record is that she then went back to work and she was able to afford to put that second child in private kindergarten is that right  but i didn't see any follow up on the health care state sponsored health care has that child been denied health care it was their understanding of the child could not get how she was told by the family planning authorities and no health care no  public schools but she did not apply for health care so that was an issue even those the schooling was an issue and she did apply to school ok is there an allegation in the record that about what it would cost or whether they'll be able to afford to pay for a third child to go to kindergarten private can you know the record doesn't doesn't talk about payment of a third child to go to go to kindergarten so obviously the same penalties of no no healthcare no public school would apply to the third what made it that's the main thing that was compelling her to do this to have this abortion even without the government knowledge and i think there's i would like to suggest certain factors that go into when a a and was not just a mother who just wanted an abortion of course she was a christian a child of god the childe of the baby was a gift of god she didn't want the abortion did she reasonably incredibly fear a forced abortion if the government found out and i think that's clear that from this record she said she was found credible she did believe that if the government found out and it's a worse i mean as bad as a forced abortion and this case is as bad as that and psychologically harmful to her it seemed you know that the alternative of being grabbed and thrown in a van and taken for an abortion tell her you know unless you get an abortion x is going to happen or what now because what gave her the fear of forced abortion well she she's an educated woman and i'm a degree she did research she looked on line she thought she believed mistakenly that having a child in the united states would exempt that child from counting in the family planning policy and there were research told and she cites the research you say she did cite some research results well great that no not to that point she said she did research to find out if there were might be an exception as in the for example in the countryside the first trials a daughter then you wait four years you can usually be permitted no it's even worse there you can't you can't you know there's no escape there and that's why what i mean she's an educated woman who by her by her own not pacific research was aware of the consequences of the government find out and so she was clever enough and she should not be penalized for being clever enough to avoid being fined out found out by by winter clothing by going to work through the basement car parking lot and by by you know by the safe workplace at the first place hewlett packard the boss was was kind to her and did not did not rat her out with her pregnancy and allowed her to continue working till near full term but counsel she said they told her that she had this is that to an i u d insertion at the hospital but she didn't s and that was the aside from the medical and schooling benefits she did not suffer other consequences for the second time the second illegal the that is the first illegal child however in this case we also have a second illegal child born in the united states who was who is now she has three children and so that the extraordinary  double violation of the course of population control policy puts her as an extreme risks not only for extreme economic penalties beyond school and and medical deprivation but also as a prime target for sterilization according to the professor cohen who has has actually cited cited sources in beijing itself where she's from that that would  be a likely consequence now with a double violation of going back to china at at this point and so that i submit that because she was smart enough to evade authorities many women are not she should not be penalized for making a hobson's choice of either a voluntary but coerced but not by physical restraint abortion at a hospital in time a place early in pregnancy that she could choose rather than and maybe being find out and as she as she states there could be a forced abortions right up to the ninth month and so do you want to save some time yes i do morning are may please the court rachel browning for the respondent in this case the record does not compel them clues in that petitioners suffered past persecution or have a well founded fear of persecution based on the family planning policies of their local council is no such thing as emotional or circumstantial and when she was told if she became pregnant again there would be an induced abortion why isn't this amount to emotional are first of all your honor i don't believe she was given that specific a warning they were given a warning after they returned to china with their second child basically saying you could face punishment there was no specified specificity with respect to what the punishment would be she was told to have an i e d inserted they chose not to and there were no consequences for that so based on the fact that under those circumstances two years later then when she decides she needs to have an abortion i don't know that that though that one warning two years prior set up the kind of coercive pressure that this court had in mind when it decided in doing that forced abortion or forced sterilization there still has to be and it doesn't literally mean in the procedure itself someone is physically restrained but there still have to has to be sufficient government action that's brought to bear in that moment and by petitioners on testimony no one was aware of her pregnancy she basically weighed her options and determined that the best the best thing she could do in that moment was to have the abortion that she didn't want and simply making a choice that is not the optimal choice i don't think that rises to the level of force or coercion that this court had in mind when she was an able who would rule and be in school w exactly how that amounted to a sanction like what the board would have needed more the judge would have needed more information about what it cost to then find a private school for their son and what their particular economic circumstances was such that that  having to enroll him in that created the kind of economic deprivation that would would rise to persecution there simply wasn't a lot a lot to go on in the information that was provided in either their written statement or their testimony what about health care will this it does entitle both of the children you know two and three from health care for the for the rest of their lives i'm not prepared to draw that conclusion from this record it could mean that the state won't are the  government won't provide that health care but there are private clinics and again that just wasn't made clear in either their testimony or the evidence that was presented that that would be such a  hardship to them that that rises to the level of persecution in this case she had choices which some people don't have and she made the choice to undergo an abortion just by i'm trying to figure out about the economic course and that's what bothers me most about this case because it seems to me to be no small thing to say this child is not going to be entitled to public education a public health care for himself particularly in a place like mainland china and now there's a third child and so the question becomes will s have to quit her job in order to homeschool these children if so that's starts to sound and feel a whole lot like economic coercion that's been recognized and kicked case law is it the case that she'll be able to work and afford to pay for the private kindergarten i don't know what the record record tells us about that but it seems to me to be pretty close to the line is there any case law anywhere that discusses this nexus between economic coercion and resistance the one child policy that i'm aware of that we've cited on our brief i don't i well i don't i don't want to misrepresent what the board so that my point is simply on this record all of those factors that you eliminate none of that was really discussed either in the testimony in a written statement even in the motion to reopen itself well yes but but when you say other than in testimony she was found credible right yes and she did indicate that that the second child was indeed w denied access to public education but i think as i indicated in my earlier question she also indicated she was able to ultimately afford that and i don't see anything in the record about the third pregnancy but why is that your response to judge nelson's question i think you're taking the position that there wasn't any evidence about coercion and and since her testimony was deemed credible i'm having a hard time with your response i guess i'm not clear what the evidence her testimony is evidence right yes but her testimony was not that it's going to cost me x y and z to do you know to have to provide education i'm not i'm not going to have to homeschool my child she never made any of those those were not hurt her test that was not her testimony i would petitioners burden to demonstrate based on their financial situation and the financial ramifications of having a second or third child that that that those ramifications would rise to the level of persecution and i think he you think that's that's  it's absolutely position is burned to demonstrate their prima facia eligibility for asylum in this context that requires showing that the family planning policy of their province would be enforced against them with tactics that amount to persecution whether that be forcible abortion for sarah was ation or economic penalties that would be so oppressive given their situation that that becomes persecution rather than arguing that there was no evidence your real argument sounds like it's that you think she didn't meet her burd i think both of those are true they didn't submit evidence that it was their burden to submit evidence that would establish that this supports their well founded fear of well i don't mean to beat a dead horse but why is it that you don't accept her testimony as some evidence it's her subjective are her belief about what would happen and i don't know an ending and in this particular case it's also what happened to her second child so it's not entirely speculative and she was deemed credible that's again i don't mean to split hairs but i understand what you're saying yes i think what the judge did and what the board ultimately did was they weighed with this the other evidence and her other testimony which was that despite their failure to to follow the instructions that were given to them by their local family planning officials nothing happened other than her you know when she went to try to enroll her child in one school that one school said no but i think that's still not enough in order to establish a well founded fear of persecution given all of these other factors in the record as just a seam of pointed out their particular financial standing not sure  given showing that under their particular circumstances these burden these financial burdens would just have you know been onerous that wasn't their testimony anything for that i know we didn't really get into the motion to reopen that i would just ask that that that petition reviewed tonight as well because the evidence was simply not sufficient to demonstrate that the board should reopen proceedings thank you relatively good job because of the extra cost for the childcare and medical expense for the child was not covered by those things and then and then it turned out that she she left th were there was multi determined she was upset about the abortion and there was too much trouble both of those are true but but the not losing that job was was part of her thinking but then she had she lost it anyway  gave it up anyway so it's not that she had enough just to enough enough to not to be concerned about forgoing those the school and health benefits and moreover if i might  that according to the both i j in the b i a only physical restraint and force of that nature counts and so they didn't they didn't even care about how much they didn't discuss or evaluate at all whether or not there was an economic persecution issue because it didn't it all didn't matter and that in the courts below and this in this case and again i just meant what on the motion to reopen certainly the way they court evidence just just accounting for nothing and except for the evidence referred to except he's an expert it's not an attorney's affidavit and i do ask the court to consider that thank you your hon case will be submitted and its case on the calendar is no actresses sessions fifteen dash seven one one eight seven that case has been submitted on the br