2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-5-2010

Xiu Liu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4157

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4157

___________

XIU YUN LIU,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A099-927-474)

Immigration Judge: Honorable Frederic G. Leeds

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 22, 2010

Before: BARRY, GREENAWAY, JR., and STAPLETON, Circuit Judges

(Opinion filed October 5, 2010 )

___________

OPINION

___________

PER CURIAM

Xiu Yun Liu petitions for review of a decision of the Board of Immigration Appeals

(BIA). For the reasons below, we will grant the petition for review and remand for further

proceedings.
1

 

 Liu was pregnant with her third child during her asylum proceedings.

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Liu, a native of China, entered the United States in June 2001. In January 2007, she was

charged as removable as an alien without a valid entry document at the time of entry. Liu

conceded removability and applied for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT). She argued that she would be persecuted under the family

planning policy if returned to China because she had given birth to two children in the United

States. The Immigration Judge (IJ) denied relief. The IJ concluded that the evidence did not 1

establish that an individual with children born in the United States would be sterilized or forcibly

aborted if returned to China. On appeal, the BIA agreed. It concluded that Liu’s documentation

was mostly general and cumulative of evidence that had been discussed in its published

opinions. It concluded that Liu had not shown that forcible sterilization, torture, or other

persecution would be imposed after the birth of a second or third child in the United States. Liu

filed a timely petition for review.

We have jurisdiction pursuant to 8 U.S.C. § 1252. To establish eligibility for asylum, Liu

needed to demonstrate either past persecution or a well-founded fear of future persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion. See Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005). To establish eligibility for

withholding of removal, she needed to demonstrate that it was more likely than not that her life

or freedom would be threatened in China on account of the family planning policy. Tarrawally

v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for

withholding of removal under the Convention Against Torture, she needed to demonstrate that it

is more likely than not that she would be tortured if removed to China. 8 C.F.R. § 1208.16(c)(2). 
3

We review the BIA’s factual determinations under the substantial evidence standard. Dia

v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). The BIA’s findings are considered

conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 

8 U.S.C. § 1252(b)(4)(B). We exercise de novo review over the BIA’s legal decisions. 

Toussaint v. Attorney General, 455 F.3d 409, 413 (3d Cir. 2006).

Liu tendered a voluminous record in support of her claim that her fear of future

persecution was objectively reasonable. As the BIA observed, much of it had been considered in

prior cases involving other similarly situated Chinese citizens. The record, however, includes

evidence pertinent to the current situation in China and Liu’s specific circumstances which had

not previously been considered by the BIA. Without further explanation by the BIA of its view

of this evidence, we find ourselves unable to perform our assigned responsibility of review.

Liu submitted affidavits of a friend and the wife of a cousin to establish that the family

planning policy which would be applied to her on her return requires coercive sterilization

following the birth of a second child without official permission. The friend, Yue He, reported,

“I was forced to be sterilized at Family Planning Service Station of Chang Le on January 5,

2007” after giving birth to her second daughter. App. at 1436. The cousin’s wife, Xiao Liang,

reported, “about one month after gave birth to the second child, . . . I was taken to Chang Le

Family Planning Service Station for forced sterilization. The mental and physical pain was

indescribable by language.” App. at 1460. 

In a footnote, the BIA dismissed this evidence for two reasons: (1) it “does not

demonstrate whether physical coercion was applied to achieve the women’s compliance with

China’s family planning goals,” and (2) “these women do not claim to live in Fu Qui Village”

and it is thus “unclear whether the respondent would be subjected to similar measures.” App. at
2

 

 According to their ID cards, the friend lives in Long Jin Village, Hang Chen Town,

Chang Le City, Fu Jian Province, App. at 1432, and the cousin’s wife lives in Xia Zhou

Village, Hang Chen Town, Chang Le City, Fu Jian Province. App. at 1467. Liu is

originally from Dong An Village, Hang Chen Town, Chang Le City, Fu Jian Province,

but testified that she would live with her mother-in-law in Fu Qui Village, Ho Yu Town,

Chang Le City if returned to China. App. at 140.

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10. Both women asserted that their sterilizations were forced. We believe that any reasonable

adjudicator viewing this evidence would be compelled to conclude that the women were

indicating that physical coercion was used to achieve their compliance with the sterilizations. 

Moreover, in the absence of further evidence and explanation, we fail to understand why the

Board would expect Liu to be subjected to a different family planning regime given that all three

women are from Chang Le City which is where the sterilizations occurred. Citing In re J-H-S-, 2

24 I. & N. Dec. 196, 198 (BIA 2007), the BIA stated that an applicant must show that the policy

in her “local province, municipality, or other locally-defined area” would lead to a well-founded

fear of persecution. Here, the BIA considered Liu’s village as the geographic area relevant to

her claim. However, in J-H-S-, the BIA looked at practices in the Fu Jian Province which is a

much larger area than a single village. 

In support of her position that she reasonably feared coerced sterilization despite the fact

that her children were born in the United States, Liu tendered a number of additional documents. 

One is an affidavit of Liu’s mother-in-law which reads as follows:

I am LIN LING Jin, female, born on May 4, 1950. Now giving the true

statement regarding to the regulations of family planning policy in China.

LIU Xiu Yun is my daughter-in-law and I am her mother-in-law. I

inquired the comrade who in charge in the family planning bureau about my

daughter-in-law LIU Xiu Yun gave birth to two children in the US and if the

sterilization operation will be performed if she returns to China. According to

what they said, every citizen of People’s Republic of China has the obligation for

family planning. My daughter-in-law will not be an exception. Having two

children in the US and returning to China, sterilization operation must be
5

performed and social foster fee will be collected. All above are all true. I asked

them to issue a certificate to me. They told me to go to local villager committee

for the certificate. Now, this certificate is attached.

Affiant: LIN Ling Jin

2007.9.20

App. at 285. The “certificate” purports to be a statement of the “Current Family Regulation of

FuQi Village from the Villager Committee. It states:

A Chinese couple if give birth to a boy, must have IUD inserted and not

allow to have a second child. If give birth to a girl, four years later, allow to have

a second child. It doesn’t matter the second child is a boy or a girl, must accept

the sterilization operation.

Forbidden for early-birth and over-birth. Must obtain the birth permit for

second child as regulation states, otherwise, will be considered as violation of the

family planning policy and must be punished as the regulation states. All above

is the basic current family planning policy of FuQi Village. As long as a villager

of FuQi Village, no matter where you are, must obey the regulation. Otherwise,

must be punished as the regulation states if return to FuQi Village.

App. at 293 (emphasis supplied). A similar statement of Liu’s mother and accompanying

“certificate” were also filed. The only difference is that Liu’s mother lives in Dong An Village. 

Similar follow-up inquiries of local authorities by Liu’s mother and mother-in-law in

December of 2007 produced the same advice: “any Chinese citizen must follow the Chinese

family planning policy; sterilization must be performed after giving birth to two children.” App.

at 270. “This is a national policy, every citizen shall carry out.” App. at 277. This time,

however, the authorities declined to provide a written “certificate” reflecting their advice.

When the BIA addressed whether Liu had carried her burden of showing that her fear

was objectively reasonable, it began by noting that “while aliens who have had multiple children

in this country may qualify as a refugee, this determination must be made on a case by case

basis” and each “individual applicant must establish that the family planning policies in her
6

‘local province, municipality, or other locally-defined area . . . would give rise to a well-founded

fear of persecution.’” App. at 9. The Board then concluded:

The respondent’s documentation is largely general in nature and cumulative of

evidence analyzed in the aforementioned opinions. While the respondent did

present some information regarding the implementation of China’s policies in

FuQui Village, the town to which she plans to return, this evidence does not

establish a reasonable chance that forcible sterilization, torture, or other

persecutory measures will be imposed in FuQui Village after the birth of a second

or third United States citizen child. See, e.g., Exh. 24 (stating that all villagers

who have a second child must be sterilized, but failing to describe the

enforcement methods used); see also Tr. at 60 (testifying that, if deported, the

respondent and her family would return to her mother-in-law’s home in FuQui

Village); see generally Tr. at 50, 60 (conceding that she does not know anyone

who was sterilized after returning to China with United States-born children). 

Accordingly, the respondent has failed to establish her eligibility for asylum.”

App. at 10; footnote omitted. While the BIA references in a footnote the statements of Liu’s

mother and mother-in-law as examples of “various supporting letters” presented by Liu, it

neither describes the contents thereof nor comments thereon. Id.

“We acknowledge that our standard of review is extraordinarily deferential to the BIA,

and nothing in the [Immigration and Nationality Act (INA)] specifically requires the Board to

explain its decisions. But the availability of judicial review (which is specifically provided in

the INA) necessarily contemplates something for us to review.” Abdulai v. Ashcroft, 239 F.3d

542, 555 (3d Cir. 2001). See also Huang v. Att’y Gen., No. 09-2437, – F.3d –, 2010 WL

3489543, *12 (3d Cir. September 8, 2010) (“The BIA must provide sufficient analysis to

demonstrate that it has truly performed a full review of the record, including the evidence that

may support the alien’s asylum claim.”). Here, the BIA has not told us why it believes the

evidence we have reviewed above “does not establish a reasonable chance that forcible

sterilization . . . will be imposed in FuQui Village after the birth of a second or third United

States citizen child.” App. at 10. While it is true that Liu conceded that she did not personally
7

know anyone who was sterilized after returning to China with United States born children, we

are reluctant to conclude that the Board regarded this as sufficient alone to rebut Liu’s evidence. 

Yet we find ourselves unable to determine from the BIA’s opinion what other ground it has for

its stated conclusion.

Because the BIA’s failure of explanation makes it impossible for us to review its

rationale, we will grant Liu’s petition for review, vacate the Board’s order, and remand this

matter for further proceedings consistent with this opinion.