FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 6, 2007

THOMAS K. KAHN

CLERK

 Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting *

by designation. 

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-10063

________________________

BIA No. A77-641-841

YA-ZHEN ZOU, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 6, 2007)

Before PRYOR, KRAVITCH and ALARCON, Circuit Judges. *

PER CURIAM:
 Zou also originally requested relief under the United Nations Convention Against

1

Torture (“CAT”), which the IJ denied. Because Zou does not challenge this decision on appeal,

she has abandoned it and we do not discuss it further. Sepulveda v. U.S. Att’y Gen., 401 F.3d

1226, 1228 (11th Cir. 2005). 

 Zou’s asylum application was untimely, but the IJ found that extraordinary

2

circumstances excused the late filing. By the time of the hearing, Zou had given birth to her

second child.

2

Ya-Zhen Zou, a native and citizen of China, petitions this court for review of

the Board of Immigration Appeals’s (“BIA”) affirmance of the Immigration

Judge’s (“IJ”) order of removal and denial of asylum and withholding of removal,

8 U.S.C. §§ 1158 and 1231. The question before us is whether the record compels 1

the conclusion that Zou established a well-founded fear of future persecution if she

returned to China. After oral argument and a thorough review of the record, we

determine that the record does not compel the conclusion that Zou had a wellfounded fear that was objectively reasonable. Accordingly, we deny the petition.

I. Background

Zou, a citizen of China who had been living in the Fujian Province, entered

the United States without valid entry documents in September 1999, and the INS

served her with a Notice of Appeal, charging her with removability. She filed an

application for asylum and withholding of removal on the grounds that she would

be persecuted if she returned to China because she opposed China’s coercive

family planning policy, her mother had been ordered to implant an IUD and later

was sterilized after giving birth to a third child, and Zou already had two children.2
3

In support of her application, Zou submitted an affidavit from her aunt

confirming that Zou’s mother had been sterilized in 1990. She also submitted

copies of the U.S. State Department Country Reports from 2000, which recognized

the “intense pressure to meet family planning targets set by the Government” and

had “resulted in documented instances . . . of forced abortion and sterilization.” 

The 2003 Report noted that coercive measures “continued to be a problem,”

although it acknowledged that the policy was applied more strictly in the cities

than in rural and remote areas and that the National Population and Family

Planning Commission had “issued circulars nationwide prohibiting birth planning

officials from coercing women to undergo abortions or sterilizations against their

will.”

Zou also submitted an affidavit from John Shields Aird, a retired U.S.

Census Bureau demographer and specialist on Chinese population policy. 

According to Aird, Chinese couples living abroad would be subject to the family

planning policy upon return to China, and forced sterilizations continued to be used

to promote the policy. Aird noted Fujian administrative decisions as evidence that

Chinese nationals living abroad were not exempt from the policy. Aird rejected

many of the findings of the State Department reports and identified documents

discussing a Chinese woman who had been denied asylum in Australia and had

been forced to under-go a late-term abortion upon return to China.
4

In opposition to the asylum request, the Government submitted additional

reports and articles, which indicated that forced sterilizations were no longer

tolerated and that Fujian officials “lacked the capacity or will to effectively

implement” the family planning policy. One article in particular noted that China’s

one-child policy has been implemented in enormously varied ways, with some

areas tolerating families with five or six children and other areas mandating

sterilization after the birth of one child. The articles further noted that a large

number of people were leaving China and seeking asylum in order to avoid

sterilization.

According to an undated profile of asylum claims from China, Fujian

authorities did not handle births in the United States strictly, with families

receiving modest fines for violating the policy. A 2001 report from the

Department of Justice confirmed that in some localities “[o]verseas Chinese [we]re

largely exempt from domestic birth planning rules and can return to China with a

pregnancy or a child born abroad without being penalized.”

The IJ denied relief, finding that there was no evidence of past persecution

and no well-founded fear of future persecution, as the evidence did not establish

that Zou would face sterilization due to the birth of her second child. The IJ noted

that there was no evidence Zou was pregnant with or had given birth to a third

child. The IJ further found that the evidence showed that the coercive policies
 Zou does not specifically challenge the denial of the motion to remand, and, therefore,

3

she has abandoned it. Sepulveda, 401 F.3d at 1228. Thus, the evidence of Zou’s third

pregnancy and the sterilization of her aunt in 2002 are not properly before us. 

5

were not enforced and that the worst that would happen is that Zou would be given

a fine.

Zou appealed to the BIA and submitted evidence that she was then pregnant

with her third child. She also moved to remand to add into evidence the 2004

Country Report, which acknowledged that coercion still occurred, and an affidavit

from her other aunt explaining that the aunt had been sterilized when she was

deported back to China from Japan in 2002 after the birth of her second child. The

BIA denied the motion to remand and dismissed the appeal, finding that the record

did not establish a reasonable probability that Zou would be sterilized if returned to

China. Zou now petitions this court for review, challenging the IJ’s finding that

she did not establish a well-founded fear of future persecution.3

II. Petition for Review

When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning,

we will review the IJ’s decision as well.” Id. In this case, the BIA “agree[d] with

the Immigration Judge that the evidence of record establishes neither a reasonable

possibility nor a clear probability that the respondent will be forcibly sterilized in
6

China for having two American-born children.” The BIA made no factual findings

on its own, and drew no other legal conclusions. We consider this to be an

adoption of the IJ’s decision. See id.

To the extent that the IJ’s and the BIA’s decisions were based on legal

determinations, our review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 817 (11th Cir. 2004). The IJ’s and BIA’s factual determinations are reviewed

under the substantial evidence test, and we “must affirm the [] decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Al Najjar, 257 F.3d at 1283-84. The substantial evidence

test is “deferential” and does not allow “re-weigh[ing] the evidence from scratch.” 

Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). 

“To reverse the fact findings, we must find that the record not only supports

reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th

Cir. 2003) (considering withholding of removal claim). The fact that the evidence

may support a contrary conclusion is not enough to justify reversal of

administrative findings. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir.

2004) (en banc). 

An alien who arrives in or is present in the United States may apply for

asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant

asylum if an alien meets the INA’s definition of “refugee.” INA § 208(b)(1)(A), 8
7

U.S.C. § 1158(b)(1)(A). The INA defines “refugee” as follows: 

[A]ny person who is outside any country of such person’s

nationality . . . and who is unable or unwilling to return to, and is

unable or unwilling to avail himself or herself of the protection of,

that country because of persecution or a well-founded fear of

persecution on account of . . . political opinion . . . . For purposes of

determinations under this chapter, 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)(A) & (B). The asylum applicant carries the burden of

proving statutory “refugee” status. See Al Najjar, 257 F.3d at 1284. To establish

asylum eligibility, the alien must, with specific and credible evidence, establish

(1) past persecution on account of a statutorily listed factor, or (2) a “well-founded

fear” that the statutorily listed factor will cause such future persecution. See 8

C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287.

Here, there is no evidence of past persecution. Zou had not been sterilized

or otherwise punished for resisting coercive family planning. See Yang v. U.S.

Att’y General, 418 F.3d 1198, 1202-03 (11th Cir. 2005). Thus, to be entitled to

relief, Zou must demonstrate a future threat to her life or freedom on account of a
 The standards for withholding of removal are largely the same as they are for asylum,

4

except that an applicant must prove refugee status “more-likely-than-not.” Mendoza, 327 F.3d

at 1287. As such, if an applicant is unable to meet the standard for asylum, she cannot qualify

for withholding of removal under the INA. Al Najjar, 257 F.3d at 1293, 1303-04. 

 In this case, there was no adverse credibility finding by either the IJ or the BIA. Yang, 5

418 F.3d at 1201 (holding that IJ’s must make “clean determinations of credibility.”). 

8

protected ground. 8 C.F.R. § 208.13(b)(2). 

4

The well-founded fear of persecution must be subjectively genuine and

objectively reasonable. The subjective component is generally satisfied by the

applicant’s credible testimony that she genuinely fears persecution. In most cases, 5

the objective prong can be fulfilled by establishing that she has a “good reason to

fear future persecution.” Al Najjar, 257 F.3d at 1289 (internal citations omitted). 

Notably, the “precise contours of the ‘well-founded fear’ inquiry continue to

evolve.” Id. The applicant need not show that it is “more likely than not” that she

will be persecuted if returned to her country of origin. INS v. Cardoza-Fonseca,

480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987) (quoting a

“leading authority” who argued that a person with only a ten percent chance of

persecution would have a “well-founded” fear). 

In this case, Zou testified that she was afraid to go back to China because she

would be forcibly sterilized, and there is no evidence in the record that her fear was

not subjectively real. The question, then, is whether the fear was objectively

reasonable. 
 At oral argument, Zou’s counsel clarified that Zou now has a third child. In her motion 6

to remand before the BIA, Zou also submitted a letter from her aunt, who had her second child

while living in Japan and who was sterilized upon return to China in 2002. The BIA denied the

motion. Zou does not specifically challenge this denial on appeal, and, therefore, she has

abandoned it. Sepulveda, 401 F.3d at 1228. Thus, this evidence is not properly before us. 

 Reliance on the State Department Reports is proper, as the State Department is “the 7

most appropriate and perhaps the best resource” to obtain information on political situations in

other countries. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004); see

also Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259 (11th Cir. 2006). Cf., Huang v. INS, 421 F.3d

125, 129 (2d Cir. 2005) (explaining that “the BIA was not bound by the country condition report

in the record, but it was entitled to rely on it, so long as in doing so it did not overlook any

contradictory evidence directly presented by the petitioner”); Krastev v. INS, 292 F.3d 1268,

1277 (10th Cir. 2002) (stating that the “use of such official report does not substitute for an

analysis of the facts of each applicant’s individual circumstances”). 

9

Zou had two children at the time of her removal proceedings. Zou 6

submitted evidence that her mother was subjected to forced sterilization after the

birth of her third child, but this coercion occurred in 1990. 

The Country Reports acknowledge that the Chinese government now

prohibits forced sterilization and that the frequency of such cases was “declining,”

but it conceded that “the use of physical coercion was difficult to document.” The

reports do not say how much the practice of forced sterilization or other coercive

means have “declined,” which makes it difficult for this court to say whether Zou

faces even a ten percent chance of persecution. Cardoza-Fonseca, 480 U.S. at 7

431. 

Moreover, although there was evidence that the authorities in Fujian

province did not always handle births in the United States strictly, there was also

evidence that Chinese citizens with foreign-born children were subject to the
10

policy. Dr. Aird specifically attested that Chinese couples living abroad were not

exempted from punishment when they returned home with unauthorized children

born abroad. 

Thus, although we agree that there is evidence in the record supporting

Zou’s claims, Zou faces two difficulties. First, in Yang, this court rejected Aird’s

testimony and relied on the State Department’s 2001 Country Report and a 1998

Asylum Profile, which stated that Fujian Province was known for its lax

enforcement of China’s family-planning policies. In so doing, this court held,

among other things, that Yang had failed to prove a well-founded fear of

persecution based on coercive birth control policies in Fujian Province. Yang, 418

F.3d at 1203. Moreover, in Yang, the facts were more dramatic; the applicant had

been forced to undergo some type of procedure and pay a fine. In the instant case,

Zou has not been forced to undergo any sterilization or birth control procedure. 

Second, the question is whether the evidence compels the conclusion that the

IJ and BIA erred in finding that there was no objectively reasonable well-founded

fear of future persecution. We cannot re-weigh the evidence, and our review is

deferential. The record cannot merely support reversal, it must compel it. 

Mendoza, 327 F.3d at 1287. Only in rare cases does the record compel reversal. 

Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1239 (11th Cir. 2006). 

On the record before us, and in light of this deferential standard of review,
11

we cannot conclude that the record compels reversal. Accordingly, we DENY the

petition.