1

Alberto Gonzales has been appointed to serve as Attorney General of the

United States, and is substituted as respondent pursuant to Federal Rule of Appellate

Procedure 43(c). 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-4025

___________

Feng Ying Zheng, *

*

Petitioner, *

* 

v. * Petition for Review of an Order 

* of the Board of Immigration Appeals.

* 

Alberto Gonzales,1

 Attorney General *

of the United States, *

*

Respondent. *

___________

Submitted: December 17, 2004

Filed: July 28, 2005

___________

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

___________

BYE, Circuit Judge.

Feng Ying Zheng, a citizen of the People's Republic of China, claims she fears

persecution if removed to China because of the country's coercive population control

policies. Zheng seeks review of the Board of Immigration Appeal's (BIA) final order

affirming the Immigration Judge's (IJ) decision denying her application for asylum,
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withholding of removal, and protection under Article III of the Convention Against

Torture (CAT). Because we find the BIA erred by failing to consider significant

evidence supporting Zheng's claim, we conclude the denial of relief was not

supported by substantial evidence. Accordingly, we vacate the BIA's order of

removal and remand for further proceedings. 

I

Zheng was born on March 12, 1970, in Guantou Village, Lian Jiang City, in the

Fujian Province of China. She entered the United States without inspection on

September 12, 1993. On May 3, 1996, Zheng married Chang Qin Lin. Zheng and her

husband presently have three United States citizen children: a son, born January 19,

1997; and two daughters, born September 13, 2000, and July 12, 2003. Zheng's sister

and brother live in New York; both have been granted asylum based on China's birth

control policies.

On January 3, 1995, Zheng filed an application for asylum. On July 22, 1999,

the Immigration and Naturalization Service, now the Bureau of Immigration and

Customs Enforcement within the Department of Homeland Security, commenced

removal proceedings against Zheng by issuing a Notice to Appear. The IJ held an

evidentiary hearing on Zheng's application for asylum, withholding of removal, and

relief under the CAT on July 18, 2001. Zheng, her husband, and her sister testified.

At the hearing, Zheng testified she feared returning to China because she

believes upon return she will be arrested immediately and either she or her husband

will be forcibly sterilized because she had a second child when her first child was a

boy. She testified she and her husband would like to have more children and do not

practice any form of birth control. She testified she fears she will be subject to forced

sterilization or abortion because of China's family planning policies. Zheng further

testified her fear of returning to China is also based on the experiences of her sister,
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who, after becoming pregnant for the second time, was arrested and given an injection

causing an abortion. Zheng stated that prior to her departure from China she did not

have problems with China's birth control policy. 

Zheng's sister, Feng Zhen Zheng, also testified at the hearing. Zheng's sister

testified she was also an applicant for asylum based on China's birth control policy

and had appeared before an immigration judge in New York in 2001. The sister

testified that when she was six months and seven days pregnant in China, she was

forced to abort her second pregnancy and lost a female fetus on July 7, 1998, at

Lianjian Hospital in Lianjian City. She testified after she got pregnant she was hiding

at her mother's home in Guantou, which is thirty minutes from Lianjian Hospital.

Someone reported her and she was arrested at her mother's house by an officer from

the birth planning office who then sent her to Lianjian Hospital to have an abortion.

Her first child was a boy. 

The parties also submitted numerous documents concerning China's population

control policies, including the United States Department of State 2001 Country

Report on Human Rights Practices in China, United States Department of State's 1998

Profile of Asylum Claims and Country Conditions for China, March 14, 2000, Report

by the Canadian government, and an April 2002 Assessment on China prepared by

the United Kingdom. Additionally, Zheng submitted an affidavit of John Shields

Aird, a specialist on demographic developments and population policy in China, who

is also a retired demographer formerly employed at the U.S. Bureau of Census. Aird's

affidavit refutes alleged misrepresentations concerning China's coercive population

control policy in Department of State reports and documents issued by the Canadian

government. 

The IJ denied Zheng's application for asylum, withholding of removal, and

relief under the CAT on July 12, 2002. The IJ found Zheng had not suffered past

persecution in China. The IJ further found Zheng had a subjective fear of future
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persecution, but determined Zheng's fear of persecution was not objectively

reasonable. Because Zheng failed to meet her burden to demonstrate her eligibility

for asylum, the IJ concluded Zheng failed to establish her entitlement to withholding

of removal. The IJ also found Zheng failed to meet her burden under the CAT. 

The IJ found both Zheng and her husband to be "generally credible."

Additionally, the IJ found Zheng's sister to be "generally credible." However the IJ

stated she would "not give great weight to the sister's testimony." The following

explanation was provided: "[T]his Court did not have the sister's asylum application

before this Court to determine the credibility of her own application, with respect to

how it affects the respondent's case." Accordingly, the IJ did not analyze Zheng's

sister's testimony concerning her forced abortion in determining whether Zheng's fear

was objectively reasonable. 

Although the IJ found Zheng had a subjective fear of persecution in China, the

IJ concluded "the documentation in the record does not objectively support this fear."

In determining Zheng's fear was not objectively reasonable, the IJ explained: "The

current information in the record regarding China reflects that the forced coercive

family planning policies are not being followed in Fujian Province and that Fujian

Province is lax on enforcing family planning policies." The IJ found Zheng "failed

to also prove to the Court that she would be persecuted because she has had two

children born in the United States." The IJ also found "the respondent has failed to

show that the threat of persecution exists countrywide," noting "[a]ccording to the

country information, there are clearly areas in China in which a person, who wants

to have two or more children, even three or four children, can live and have that

number of children." 

In reaching its finding, the IJ relied primarily on the 2002 UK Assessment and

the 2000 report by the Canadian government. According to the 2002 UK Assessment,

"[f]or differing reasons, most authorities agree that the Fujian Province is lax in
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implementing the birth control policies" and "[t]he authorities work by incentive

schemes rather than coercion, with forced abortion and sterilization no longer

tolerated, and efforts to increase the professionalism of family planning workers."

The UK Assessment also states "in 1999, there have been signs that the government

is beginning to relax its policies in the cities" and "minorities in some rural areas are

permitted to have four children." The report prepared by the Canadian government

similarly concludes "[t]here is less effective enforcement of the 'one-child' policy [in

the Fujian Province] than in other parts of China." 

Zheng appealed to the BIA arguing the IJ erred in finding Zheng did not

establish a well founded fear of future persecution. Zheng also claimed the IJ

violated her due process rights to a full and fair hearing. The BIA dismissed the

appeal. The BIA found no merit in Zheng's claims that her due process rights were

violated. On the merits, the BIA adopted the facts set forth by the IJ and affirmed the

IJ's determinations that Zheng failed to establish eligibility for asylum, withholding

of removal, and protection under the CAT. Specifically, the BIA found Zheng "failed

to establish that she has suffered past persecution on account of a protected ground,

or that she has a well-founded fear of persecution if returned to China to include as

a result of their coercive population control policies because she has two United

States citizen children." 

II

We review the BIA's decision as the final decision of the agency. "To the

extent . . . the BIA adopted the findings or the reasoning of the IJ, we also review the

IJ's decision as part of the final agency action." Falaja v. Gonzales, 406 F.3d 1076,

1081 (8th Cir. 2005) (citing Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005)).

We review the BIA's determination that Zheng failed to establish she is eligible for

asylum under a substantial evidence standard. Lau May Sui v. Ashcroft, 395 F.3d

863, 869 (8th Cir. 2005) (citing S-Cheng v. Ashcroft, 380 F.3d 320, 322-23 (8th Cir.
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2004)). Under the substantial evidence standard, we will not overturn the BIA's

decision unless we find, based on the evidence, "no reasonable fact-finder could

arrive at the conclusion reached by the BIA." Id. (quoting S-Cheng, 380 F.3d at 323).

The Immigration and Nationality Act provides the Attorney General the

discretion to grant asylum to an alien who is a "refugee." 8 U.S.C. § 1158(b). A

"refugee" is an alien unwilling to return to her home 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." Id. § 1101(a)(42)(A).

Congress has expanded the definition of "refugee" to include "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." Id. § 1101(a)(42)(B). Such individuals

"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."

Id. 

Zheng does not claim she has suffered past persecution, but claims she has a

well founded fear of future persecution if removed to China based on China's

coercive population control policies. To establish a well founded fear of future

persecution, Zheng must show her fear is "both subjectively genuine and objectively

reasonable." Mwangi v. Ashcroft, 388 F.3d 623, 627 (8th Cir. 2004) (citing INS v.

Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987)). "Subjectively, [Zheng] must

demonstrate with credible evidence that she genuinely fears persecution; objectively,

she must demonstrate through credible, direct, and specific evidence that a reasonable

person in her position would fear persecution." Id. (citing Feleke v. INS, 118 F.3d

594, 598 (8th Cir. 1997)). 
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We hold the BIA's determination that Zheng failed to establish her fear of

persecution was objectively reasonable is not supported by substantial evidence for

two reasons. 

First, we believe the IJ erred by failing to consider Zheng's sister's testimony

about being forced to abort her second child in July 1998 and by relying instead on

general reports that since 1999 enforcement of the one-child policy has been lax in

Fujian. The fact that in 1998 Fujian family planning authorities forced Zheng's sister

to abort her second child when she was six months and seven days pregnant is

specific, direct evidence demonstrating Zheng's fear is objectively reasonable. Cf.

Nyonzele v. INS, 83 F.3d 975, 983 (8th Cir. 1996) (stating "[a]cts of violence against

an alien's family members may demonstrate a well-founded fear of persecution")

(citing Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991)); Makonnen v.

INS, 44 F.3d 1378, 1385-86 (8th Cir. 1995) (holding acts of persecution against

immediate family member with similar political views and active in similar political

activities is relevant to show well-founded fear of persecution); accord Zhang v.

Gonzales, 408 F.3d 1239, 1249 (9th Cir. 2005) (stating "'acts of violence committed

against an applicant's friends or family can establish well-founded fear of

persecution'") (quoting Nagoulko v. INS, 333 F.3d 1012, 1017 (9th Cir. 2003));

Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (noting "treatment of [ ]

similarly situated family members is highly indicative" of persecution petitioner

would encounter upon return). 

Although the IJ found Zheng's sister's testimony to be credible, the IJ did not

consider it in determining whether Zheng's fear was objectively reasonable,

explaining: "[T]his Court did not have the sister's asylum application before this

Court to determine the credibility of her own application, with respect to how it

affects the respondent's case." We find the IJ's explanation for giving little weight to

Zheng's sister's testimony difficult to understand. If the IJ heard the sister's testimony

and found her to be credible, it is unclear to us why the IJ needed to consider
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separately the credibility of the sister's asylum application in order to accept the

sister's testimony. 

The government argues it was appropriate for the IJ to rely on country reports

in concluding Zheng's fear was not objectively reasonable. As the government notes,

we have stated "Department of State country condition reports are persuasive

authority for determining whether an asylum-seeker has a well-founded fear of

persecution." Perinpanathan v. INS, 310 F.3d 594, 599 n.1 (8th Cir. 2002) (citations

omitted). However, as other courts have cautioned, "use of such official report does

not substitute for an analysis of the facts of each applicant's individual

circumstances." Krastev v. INS, 292 F.3d 1268, 1277 (10th Cir. 2002); accord Lin

v. Ashcroft, 385 F.3d 748, 754 (7th Cir. 2004). By failing to consider Zheng's sister's

testimony about her forced abortion, which the IJ found credible, the IJ failed to

analyze significant credible concrete evidence demonstrating Zheng's fear is

objectively reasonable. 

Moreover, Zheng's sister's testimony, and Zheng's fears, are corroborated by

the State Department reports. For example, the State Department's 2001 Country

Report provides: 

Central Government policy formally prohibits the use of force to

compel persons to submit to abortion or sterilization; however, intense

pressure to meet family planning targets set by the Government has

resulted in documented instances in which local family planning

officials have used coercion, including forced abortion and sterilization,

to meet Government goals. During an unauthorized pregnancy, a

woman often is paid multiple visits by family planning workers and

pressured to terminate the pregnancy. Senior officials have stated

repeatedly that the Government "made it a principle to ban coercion at

any level." Senior officials acknowledge that problems persist and insist

on the Government's determination to address such problems. . . . 
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According to the State Department's 1998 Profile, "[i]n 1996 there were credible

reports that several women were forced to undergo abortion in Fujian." Additionally,

under the section entitled "Actual Implementation and Practice," the 2002 UK

Assessment notes: "Government officials have acknowledged that there have been

instances of forced abortions and sterilisations [sic], and there are anecdotal accounts

of raids on rural villages by task forces rounding up women for forced sterilisation

[sic] or abortion. . . . There are still, in 1999, routine allegations of enforced

sterilisations [sic], particularly in rural areas, and regular re-enforcement of

regulations." 

We also believe the BIA's determination that Zheng failed to demonstrate

children born in the United States are treated the same as children born in China is

not supported by substantial evidence because it fails to take into account the

information provided by Aird's affidavit. In his affidavit, Aird refutes the finding in

the 1998 Profile that children born to Chinese nationals living abroad are not counted

under China's family planning rules. According to Aird,

The agency admits that it cannot cite an official source

authorizing especially lenient treatment for the parents of U.S.-born

children. There is no provision for such special treatment in any of the

national or provincial policy regulations and directives that have been

made public. The [State Department] bases its argument on what it calls

"anecdotal information"—alleged statements by individual Chinese in

four Chinese cities, mainly family planning officials. However, family

planning officials in China, from the top leadership in the SFPC down

to the local level, have an interest in giving a deceptively moderate

impression of program enforcement in order to counter the adverse

publicity generated by actual case histories of extreme punitive

measures applied to particular Chinese couples. . . . 

Aird notes "[t]he [1998 Profile] quotes a Chengdu (Sichuan) university

graduate as saying that 'a married woman going abroad from her city can have a
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second child and return without penalty if one member of the couple gets an

American graduate degree.'" According to Aird, "[t]his may be true in some cases,

particularly because of Chinese government concerns about the 'brain drain' resulting

from the failure of Chinese graduate students to return home after the end of their

training." Aird states "[s]uch exceptions, however, are not available to most Chinese

asylum seekers." Aird's affidavit includes several examples of statements from

Chinese officials indicating the one-child policy applies to Chinese couples living

abroad. Aird concludes: "The reason why the Chinese family planning authorities

attempt to enforce family planning rules on their nationals living abroad is that to

ignore their violations would tend to undermine the enforcement of the rules in China.

The Chinese authorities cannot afford to let rumors get about that couples of

childbearing age can evade the one-child limit by leaving the country illegally, having

unauthorized children in foreign countries, and returning home without suffering the

standard penalties." 

In Guo v. Ashcroft, 386 F.3d 556, 565 (3d Cir. 2004), the Third Circuit

addressed the evidentiary impact of a similar affidavit Aird submitted criticizing the

1998 Profile's findings regarding the applicability of the one-child policy to children

born in the United States. The Third Circuit concluded "where a motion to reopen

is accompanied by substantial support of the character provided by the Aird affidavit,

the Government's introduction of a five-year-old State Department report, without

more, hardly undermines [the petitioner's] prima facie showing." Id. We likewise

believe the BIA erred in determining Zheng failed to show she would be subject to

China's one-child laws without addressing the evidence presented in Aird's affidavit.

The government argues the instant case presents the same circumstances as

those presented in our decision in S-Cheng v. Ashcroft, and that S-Cheng requires we

affirm in the instant case. We disagree. In S-Cheng, Cheng filed an application for

asylum in May 1994 falsely claiming she had been involved in democratic protests

in China. 380 F.3d at 321. In July 2000, Cheng withdrew her 1994 asylum
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application and filed a new one in which she claimed she feared persecution under

China's coercive population control policies. Id. at 321-22. At the hearing, Cheng

testified she was born in the Fujian Province and was the oldest of six children. She

testified local authorities harassed her mother for violating China's one-child policy

and forced her mother to submit to sterilization after the birth of the fourth child. The

operation failed, and Cheng's mother gave birth to two additional children. She

testified her mother was forced to submit to the insertion of an IUD device, which she

had removed. Id. at 322. Cheng claimed she feared she would be subject to forced

sterilization if returned to China because she had a son who was born in the United

States. When asked whether her husband and son would accompany her to China if

deported, Cheng stated "my husband and son[] will not allow me back to China

because we all have, our house, everything is here." Cheng testified she and her

husband planned to have more children. She also admitted she lied in her earlier

application for asylum. Id. 

The IJ determined Cheng was not credible. Id. at 323. Furthermore, the IJ

concluded Cheng's fear of forced abortion and sterilization was based on speculative

facts. Id. The BIA dismissed the appeal. Id. at 322. We denied Cheng's petition for

review. We affirmed BIA's adoption of the IJ's finding that Cheng lacked credibility

because Cheng lied in her entry application and first asylum application. Id. at 323.

We held that based on Cheng's track record, the BIA had a reasoned basis to

disbelieve Cheng's claims that she planned to have a second child and subjectively

feared China's population control policies. Id. We also found substantial evidence

supported the BIA's finding Cheng's fear of forced abortion and sterilization was not

objectively reasonable because it was based on hypothetical and speculative facts.

Id. We found Cheng did not show she was in violation of the one-child policy by

having a United States born child living in the United States, and that it was

speculative to conclude Chinese authorities would learn of the child in the United

States. This was based on Cheng's testimony suggesting her husband and son would

not accompany her to China. Id. We noted according to State Department and
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Canadian reports, the Chinese government had replaced sanctions with incentives to

encourage compliance with the law, there was no evidence of forced sterilizations or

abortions in recent years particularly in Cheng's province, and Chinese authorities

urged sterilizations after a second or third child, and up to a third of families in

Cheng's province had three or more children. Id.

There are more pertinent differences than pertinent similarities between our

decision in S-Cheng and the instant case. In S-Cheng, the IJ found Cheng lacked

credibility and did not have a subjective fear of persecution. In the instant case, the

IJ found Zheng to be credible and found Zheng had a subjective fear of persecution

based on China's coercive population control policies. In S-Cheng, we held Cheng

failed to provide credible specific evidence demonstrating her fear of forced abortion

or sterilization was objectively reasonable. In the instant case, Zheng presented

credible specific evidence by introducing the testimony of her sister concerning her

forced abortion in China. In S-Cheng, Cheng failed to provide evidence

demonstrating forced sterilizations or abortions occurred in recent years to rebut the

general reports that implementation of the one-child policy was becoming lax in the

Fujian Province. In the instant case, Zheng's sister's testimony undercuts such claims

that forced abortions or sterilizations no longer occur in Fujian. In S-Cheng, we

found that Cheng's testimony suggested she would not take her United States born

child to China if forced to leave the United States and thus concluded Cheng failed

to show Chinese officials would find out about her son in the United States. In the

instant case, there is no evidence suggesting Zheng would leave without her three

children and husband if removed to China. Moreover, Zheng presented Aird's

affidavit which concludes Chinese authorities would have reason to enforce the onechild policy against United States born children. In S-Cheng, we held substantial

evidence supported the BIA's determination Cheng's claim she wanted to have more

children was not credible. In the instant case, the IJ found credible Zheng's claim she

planned to have more children. 
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"When an agency makes a finding of fact without mentioning or analyzing

significant evidence, its decision should be reconsidered." Habtemicael v. Ashcroft,

370 F.3d 774, 783 (8th Cir. 2004) (citing Palavra v. INS, 287 F.3d 690, 693 (8th Cir.

2002)). Because we believe the BIA erred by failing to consider significant evidence,

we vacate the BIA's order denying Zheng's application for asylum and remand the

case for reconsideration in light of this evidence. 

Additionally, because the BIA denied Zheng's request for withholding of

removal without considering Zheng's sister's testimony and Aird's affidavit, we

remand Zheng's request for withholding of removal for reconsideration in light of our

holding with respect to Zheng's asylum claim. 

III

The government contends we lack jurisdiction to review Zheng's request for

protection under the CAT because Zheng failed to exhaust administrative remedies

with respect to the claim. According to the government, in her brief to the BIA Zheng

only argued she demonstrated a well founded fear of persecution, and because the

standard of proof for a claim under the CAT differs from the standard of proof for an

asylum claim, the government contends Zheng failed to appeal to the BIA the denial

of the CAT claim. This argument is without merit. Zheng explicitly asked for relief

from the IJ's denial of relief under the CAT in her brief to the BIA. Moreover, in its

decision, the BIA specifically considered and dismissed Zheng's appeal of the denial

of her claim under the CAT. Thus, in light of our holding with respect to Zheng's

application for asylum, we remand for reconsideration Zheng's request for protection

under the CAT.
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IV

Although we have already decided to remand Zheng's claims to the BIA based

on the BIA's failure to analyze significant evidence, we consider Zheng's due process

arguments at this time because our determination of Zheng's due process claims could

impact the nature of the proceedings on remand. Compare Palavra, 387 F.3d at 694

(remanding for further consideration after finding agency failed to analyze significant

evidence), with Al Khouri, 362 F.3d at 467 (remanding for new hearing after finding

due process violation). 

Zheng contends the IJ violated her due process rights by showing bias and

denying her a full and fair hearing. "The Fifth Amendment's due process clause

mandates that removal hearings be fundamentally fair." Al Khouri v. Ashcroft, 362

F.3d 461, 464 (8th Cir. 2004) (citing Reno v. Flores, 507 U.S. 292, 306 (1993);

Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993); Plyler v. Doe, 457 U.S.

202, 210 (1982)). "'To demonstrate a violation of due process, an alien must

demonstrate both a fundamental procedural error and that the error resulted in

prejudice.'" Id. at 466 (quoting Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir.

2003)). "'Actual prejudice exists where defects in the deportation proceedings may

well have resulted in a deportation that would not otherwise have occurred.'" Id.

(quoting United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995)). 

Zheng argues that in denying her requests for relief, the IJ made statements

demonstrating bias. We have reviewed the transcript of the hearing and do not

believe any statements the IJ made during the hearing demonstrate bias to establish

Zheng did not receive a full and fair hearing.

Zheng also contends the IJ violated her right to a full and fair hearing when the

IJ stopped Zheng's testimony of her opinion about the Chinese government's family

planning policy. The IJ also refused to permit Zheng's attorney to proceed on a line
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of questioning stating she did not "want to hear their whole asylum case over again."

As the government argues, Zheng's attorney intended to elicit this testimony from

Zheng to demonstrate "she knows the policy exists and what's the policy and why she

has that fear." Because the IJ found Zheng to be credible and that Zheng has a

subjective fear of persecution, Zheng cannot demonstrate prejudice. We agree. 

Zheng also alleges the IJ erred by proceeding without Zheng's attorney and

calling the attorney's paralegal to translate for Zheng over the telephone. According

to the government, the IJ attempted to hold a hearing on October 4, 2001 for which

Zheng's attorney was to appear telephonically. Zheng's attorney's cellular phone

disconnected three times. The IJ ended the hearing and called Zheng's attorney's

office to inform Zheng in a language she could understand that the proceedings were

being continued at the government's request. We agree with the government and hold

Zheng's argument on this point is without merit. 

V

We vacate the BIA's order of removal and remand for further administrative

proceedings consistent with this opinion. 

______________________________