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Matter of Z-Z-O-, Respondent

Decided May 26, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An Immigration Judge’s predictive findings of what may or may not occur in the 

future are findings of fact, which are subject to a clearly erroneous standard of review. 

Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 

(BIA 2008), overruled.

(2) Whether an asylum applicant has an objectively reasonable fear of persecution based 

on the events that the Immigration Judge found may occur upon the applicant’s return 

to the country of removal is a legal determination that is subject to de novo review.

FOR RESPONDENT: Thomas J. Tarigo, Esquire, Los Angeles, California

BEFORE: Board Panel: GRANT, MULLANE, and CREPPY, Board Members.

MULLANE, Board Member:

In a decision dated October 25, 2010, an Immigration Judge found the 

respondent removable and denied his applications for asylum, withholding 

of removal, and protection under the Convention Against Torture and Other 

Cruel, Inhuman or Degrading Treatment or Punishment, adopted and 

opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. 

No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force 

June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against 

Torture”). The respondent has appealed from that decision.1The appeal 

will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of China who was admitted to the

United States on February 24, 2007, as a B-2 nonimmigrant visitor for 

pleasure with authorization to remain until August 23, 2007. On 

October 10, 2007, he filed an asylum application with the United States 

 

1 The respondent has not meaningfully challenged the Immigration Judge’s decision to 

deny his applications for withholding of removal and protection under the Convention 

Against Torture, so we consider any issues in that regard waived. See Matter of R-A-M-, 

25 I&N Dec. 657, 658 n.2 (BIA 2012).
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Citizenship and Immigration Services. The case was subsequently referred 

to the Immigration Judge and removal proceedings were initiated. In a 

hearing before the Immigration Judge, the respondent admitted that he 

remained in the United States longer than permitted and conceded that he is 

removable. 

Regarding his application for asylum, the respondent testified that he 

and his wife have one son who was born in China on August 1, 1989. 

Sometime in October 2006, the couple learned that the respondent’s wife 

was approximately 1 month pregnant. 

On November 9, 2006, family planning officials visited the 

respondent’s wife at her work unit and asked her to undergo an examination 

to determine whether she was pregnant. She denied that she was pregnant 

and refused to have the examination. The family planning director then 

ordered two officials to push the respondent’s wife out of the office, 

causing her to fall down the stairs. After the fall, she felt a pain in her 

abdomen and asked the officials to take her to the hospital. 

According to the respondent, tests conducted at the hospital revealed 

that his wife was pregnant but that she might have a miscarriage. However,

she did not miscarry that day and was permitted to return home. She

miscarried the next morning.

The respondent also testified that on December 18, 2006, the family 

planning director accompanied his wife to the hospital to have an 

intrauterine device implanted. He stated that his wife did not tell him how 

she was taken to the hospital. Following the procedure, he and his wife 

were criticized during a company meeting and their wages were reduced. 

At the end of December 2006, the respondent and his wife received a 

written notice from the family planning authorities stating that one of them 

was required to undergo a sterilization procedure. Shortly thereafter, the 

respondent decided to leave China to come to the United States.

The Immigration Judge determined that the respondent did not establish 

eligibility for asylum and denied his application. The respondent appealed, 

arguing that he qualifies as a “refugee” because he has been harmed and 

was threatened with harm on account of China’s one-child policy. The 

respondent asserts that he has shown past persecution and that he is entitled 

to a presumption of future persecution. He also argues that he has a 

well-founded fear of persecution because “he fled subject to the threat of 

forced sterilization.” 

II. ANALYSIS

We review the Immigration Judge’s findings of fact, including the 

determination of credibility, under the “clearly erroneous” standard. 
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8 C.F.R. § 1003.1(d)(3)(i) (2014). We review de novo questions of law, 

discretion, judgment, and all other issues in appeals from decisions of 

Immigration Judges. 8 C.F.R. § 1003.1(d)(3)(ii). The respondent’s asylum 

application is governed by the provisions of the REAL ID Act of 2005, 

Division B of Pub. L. No. 109-13, 119 Stat. 302. See Matter of S-B-, 

24 I&N Dec. 42 (BIA 2006). 

The Immigration Judge raised concerns regarding the reliability and 

credibility of the respondent’s testimony, which he described as confused, 

inconsistent, and nonresponsive. However, he ultimately declined to make 

an adverse credibility finding and determined that the respondent was 

credible under the totality of the circumstances. 

Accepting the Immigration Judge’s credibility finding, we agree with

his determination that the respondent did not satisfy the burden of 

proving his eligibility for asylum. See section 208(b)(1)(B)(i) of the 

Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2012); 

8 C.F.R. § 1208.13(a)−(b) (2014). The Immigration Judge made factual 

findings based on the evidence in the record that have not been shown to 

be clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i); see also Matter 

of J-Y-C-, 4 I&N Dec. 260, 263 (BIA 2007) (citing United States v. Nat’l 

Ass’n of Real Estate Bds., 339 U.S. 485, 495 (1950) (stating that a factual 

finding is not “clearly erroneous” merely because there are two permissible 

views of the evidence)). There is no adequate basis to disturb the 

Immigration Judge’s determination that the respondent did not demonstrate 

that he suffered past persecution or has a well-founded fear of future 

persecution in China on account of a protected ground.

A. Past Persecution

We agree with the Immigration Judge that the respondent did not 

establish that he experienced harm rising to the level of persecution in 

China on account of a protected ground enumerated in section 101(a)(42) 

of the Act, 8 U.S.C. § 1101(a)(42) (2012). The respondent was never 

physically harmed in China. Moreover, although his wife’s 2006 

miscarriage was an undeniably tragic event, it does not constitute 

persecution of the respondent on account of a protected ground. 

The Immigration Judge found no indication that officials intended for 

the respondent’s wife to have a miscarriage, such that their conduct would 

constitute a forced abortion. There is also no indication that the incident 

surrounding his wife’s miscarriage was a punishment meted out by the 

Chinese Government for any actual or perceived acts of resistance the 

respondent or his wife engaged in against the family planning policy. 

See Matter of J-S-, 24 I&N Dec. 520, 535 (A.G. 2008) (stating that a 
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spouse who has not been subjected to forced sterilization must demonstrate 

“other resistance” to a coercive population control program); cf. Nai Yuan 

Jiang v. Holder, 611 F.3d 1086, 1094–95 (9th Cir. 2010) (finding on the 

totality of the circumstances that the applicant established persecution 

based on “other resistance” where he neither supported nor acquiesced in

his girlfriend’s forced abortion, which “took place as part of a series of 

events that reflect [his] persistent defiance of the coercive population 

control program”). 

The Immigration Judge’s determination that the respondent did not face

economic sanctions rising to the level of persecution has not been 

specifically disputed. In addition, the Immigration Judge properly found 

that the notice informing the respondent and his wife that one of them 

should be sterilized was not a threat that rose to the level of persecution. 

There is no indication that the respondent was pursued or harmed after the 

notice was issued. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 

2003) (finding that unfulfilled threats “constitute harassment rather than 

persecution”); Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (“Threats 

standing alone . . . constitute past persecution in only a small category of 

cases, and only when the threats are so menacing as to cause significant 

actual ‘suffering or harm.’” (quoting Sangha v. INS, 103 F.3d 1482, 1487

(9th Cir. 1997))). 

The Immigration Judge correctly concluded that the respondent’s 

experiences in China, when considered either individually or cumulatively, 

did not constitute past persecution. Accordingly, the presumption of a 

well-founded fear of persecution does not apply, and the respondent has the 

burden of establishing that he has a well-founded fear of future persecution 

on account of a protected ground upon his return to China. See 8 C.F.R. 

§ 1208.13(a)−(b); 8 C.F.R. § 1240.8(d) (2014).

B. Standard of Review for Predictive Findings of Fact

We first examined the issue of the appropriate standard of review for 

Immigration Judge findings regarding the possibility of future events in two 

companion cases, Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), and 

Matter of V-K-, 24 I&N Dec. 500 (BIA 2008).2 In Matter of A-S-B-, 

24 I&N Dec. at 498, we reasoned that “speculative findings about what 

may or may not occur to the respondent in the future . . . is not fact-finding,

because . . . it is impossible to declare as ‘fact’ things that have not yet

occurred.” Likewise, in Matter of V-K-, 24 I&N Dec. at 501, we stated that 

“while we reviewed the Immigration Judge’s factual rulings for clear error, 

 

2 Both cases were decided following a remand from the courts of appeals, which

specifically asked us to address this issue. 
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we do not consider a prediction of the probability of future torture to be a 

ruling of ‘fact.’” 

Subsequent to our decisions, the United States Courts of Appeals for 

the Second, Third, Fourth, Seventh, Ninth, and Eleventh Circuits have 

addressed the standard of review that should be applied to Immigration 

Judge findings regarding the possibility of future events. They have all 

held that an Immigration Judge’s finding that a future event will occur is 

a finding of fact that the Board must review under the clearly erroneous 

standard. Rosiles-Camarena v. Holder, 735 F.3d 534, 538–39 (7th Cir. 

2013); Vitug v. Holder, 723 F.3d 1056, 1063–64 (9th Cir. 2013); Zhou Hua 

Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1314 (11th Cir. 2013); Ridore 

v. Holder, 696 F.3d 907, 915–19 (9th Cir. 2012); Hui Lin Huang v. Holder, 

677 F.3d 130, 134–35 (2d Cir. 2012); Turkson v. Holder, 667 F.3d 523, 

529–30 (4th Cir. 2012); Huang v. Att’y Gen. of U.S., 620 F.3d 372, 382–83 

(3d Cir. 2010); Kaplun v. Att’y Gen. of U.S., 602 F.3d 260, 269–72 (3d Cir. 

2010). 

In concluding that an Immigration Judge’s forecasting of future events 

constitutes a factual finding, the circuit courts have noted that a 

determination of what will occur in the future has historically and regularly 

been regarded as a factual finding, even outside the context of immigration 

law, and they rejected our interpretation of the regulations. See, e.g.,

Turkson v. Holder, 667 F.3d at 529 n.6; Kaplun v. Att’y Gen. of U.S., 602 

F.3d at 269–70. The courts have held that although future events have not 

yet occurred in the literal sense, the “present probability of a future 

event . . . is what a decision-maker in an adjudicatory system decides now 

as part of a factual framework for determining legal effect.” Hui Lin 

Huang v. Holder, 677 F.3d at 134 (quoting Kaplun v. Att’y Gen. of U.S., 

602 F.3d at 269) (internal quotation mark omitted). 

In light of these circuit court decisions, we now hold that an 

Immigration Judge’s predictive findings of what may or may not occur in 

the future are findings of fact, which are subject to a clearly erroneous 

standard of review. We therefore overrule Matter of A-S-B- and Matter of 

V-K- as they relate to this issue.3 

However, whether an asylum applicant has established an 

objectively reasonable fear of persecution based on the events that the 

 

3 To the extent that our decision in Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 

(BIA 2010), abrogated by Hui Lin Huang v. Holder, 677 F.3d 130, relied on Matter of 

A-S-B- and Matter of V-K- with respect to the standard of review for predictive factual 

findings, we will no longer follow it. We do not address, and do not disturb, our other 

conclusions in that case, including those relating to the significance of State Department 

reports and our authority to afford different weight to the evidence from that given by the 

Immigration Judge. Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. at 212−13.
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Immigration Judge found may occur upon the applicant’s return to the 

country of removal is a legal determination that remains subject to de novo 

review. See Liu Jin Lin v. Holder, 723 F.3d 300, 307 (1st Cir. 2013) 

(“[T]he question of whether ‘the possibility of . . . events occurring gives 

rise to a well-founded fear of persecution under the circumstances of the 

alien’s case’ is a conclusion that the [Board] reviews de novo.” (quoting 

Huang v. Att’y Gen. of U.S., 620 F.3d at 383) (citations omitted)); Hui Lin 

Huang v. Holder, 677 F.3d at 135 (stating that de novo review is properly 

applied to an Immigration Judge’s determination that an asylum applicant 

has not satisfied the burden to establish an objectively reasonable fear 

of persecution); Huang v. Att’y Gen. of U.S., 620 F.3d at 384 n.8 (noting 

that fundamental to the inquiry whether the asylum applicant has a 

well-founded of persecution is the factual determination regarding whether 

the event the alien fears is possible and that “an equally fundamental 

component of the analysis requires a [legal] judgment about whether the 

possible event actually gives rise to a reasonable fear”). 

Accordingly, we will accept the underlying factual findings of the 

Immigration Judge unless they are clearly erroneous, and we will review 

de novo whether the underlying facts found by the Immigration Judge meet 

the legal requirements for relief from removal or resolve any other legal 

issues that are raised. See Perez-Palafox v. Holder, 744 F.3d 1138, 1145

(9th Cir. 2014) (finding that the Board properly “applied the factors

outlined in [Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982),] to the facts 

found by the Immigration Judge to reach the legal conclusion that [the 

alien’s] conviction was for a particularly serious crime”); Waldron 

v. Holder, 688 F.3d 354, 361 (8th Cir. 2012) (stating that the Board’s role is 

“to accept the facts as found by the [Immigration Judge] and determine 

de novo whether those facts rose to the level of ‘exceptional and extremely 

unusual hardship’ as a matter of law”); Kaplun v. Att’y Gen. of U.S., 602 

F.3d at 272 n.9 (stating that the Board has “the authority to review de novo

whether an Immigration Judge’s factual findings . . . satisfy an ultimate 

statutory standard”); see also Matter of S-H-, 23 I&N Dec. 462, 465 

(BIA 2002) (emphasizing that the regulatory change limiting the Board’s 

fact-finding authority “adds meaningful force to an Immigration Judge’s 

decision and heightens the need for Immigration Judges to include clear 

and complete findings of fact in their decisions”).

C. Well-founded Fear of Persecution

Applying these standards of review, we agree with the Immigration 

Judge that the respondent did not establish that he faces a well-founded fear 

of persecution upon his return to China on account of a statutorily protected 
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ground. The Immigration Judge found that after the respondent received 

the purported sterilization notice, he faced no reported harm when he

returned to China following a trip abroad. The Immigration Judge also 

determined that the authorities have not subjected the respondent’s wife, 

who has remained in China, to forced sterilization. 

Furthermore, the Immigration Judge found that despite the respondent’s

speculative belief that his wife was not sterilized because she cannot have 

a child without him in China, the authorities’ focus had been, and continues 

to be, on the respondent’s wife. See Don v. Gonzales, 476 F.3d 738, 744 

(9th Cir. 2007) (stating that there is no requirement that evidence be 

interpreted in a manner advocated by the applicant); Matter of D-R-, 

25 I&N Dec. 445, 454−55 (BIA 2011) (explaining that an Immigration 

Judge may make reasonable inferences from direct and circumstantial 

evidence in the record as a whole and is not required to accept a 

respondent’s account where other plausible views of the evidence are 

supported by the record). The Immigration Judge noted that although 

family planning officials have since visited the respondent’s wife and asked 

her to be sterilized, there is no indication that they have attempted to 

sterilize her by force after issuing the 2006 sterilization notice. On this 

record, the Immigration Judge reasonably found the respondent’s claim 

that he is a target for sterilization by family planning authorities to be 

unpersuasive.

The Immigration Judge’s factual findings regarding what may have 

occurred in China and what could occur if he is returned there are supported 

by the record and are not clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i); 

see also Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985) 

(“Where there are two permissible views of the evidence, the factfinder’s 

choice between them cannot be clearly erroneous.”). The respondent has 

not otherwise identified record evidence that the Chinese authorities have 

shown any interest in seeking him out for sterilization pursuant to the 2006 

notice in the many years after its issuance. Nor has he pointed to evidence

that they may seek to persecute him for any other reason. Based on the 

Immigration Judge’s factual findings and the existing evidence of record, 

we conclude that he properly determined that the respondent did not satisfy 

his burden of showing that his fear of being sterilized by force, or of 

suffering other persecutory harm upon his return to China, was objectively 

reasonable. 

III. CONCLUSION

The respondent did not demonstrate past persecution or a well-founded 

fear of future persecution on account of a statutorily protected ground. 
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Therefore, the Immigration Judge properly denied his asylum application. 

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.