2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-8-2010

En Huang v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 09-2437

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-2437

_____________

EN HUI HUANG,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

_______________

On Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

 (BIA 1:A099-583-314)

Immigration Judge: Hon. Henry Dogin

_______________

Argued

July 12, 2010

Before: RENDELL, JORDAN, and GREENAWAY, JR.,

Circuit Judges

(Filed September 8, 2010)
2

_______________

Richard Tarzia [ARGUED]

P.O. Box 489

Belle Mead, NJ 08502

Counsel for Petitioner

Eric H. Holder, Jr.

Thomas W. Hussey

Sada Manickam [ARGUED]

Joan E. Smiley

United States Department of Justice

Office of Immigration Litigation, Civil Div.

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

En Hui Huang appeals an order of the Board of

Immigration Appeals (“BIA”) reversing the grant of asylum

entered by an immigration judge (“IJ”). Huang contends that

the BIA applied the incorrect standard of review when

evaluating the merits of the IJ’s disposition, and that it abused

its discretion in failing to consider evidence that she submitted

for the first time on appeal. For the reasons that follow, we will
 Duan entered the United States in 2000 and applied for 1

asylum the same year. An IJ denied his petition, and the BIA

affirmed that denial sometime in 2003. 

3

grant Huang’s petition for review and remand this case to the

BIA for further consideration of her claims for asylum and

withholding of removal.

I. Factual Background

Huang is a citizen and native of China, whose home

village is located in the town of Guan Tou, Fujian Province. On

February 1, 2003, she entered the United States through

Washington, D.C. without valid entry documentation. She

initially moved to Altoona, Pennsylvania, where she began a

romantic relationship with Duan Zheng Huang, who is also an

illegal alien and citizen of China. The couple later relocated to 1

New York City, where they were married, and where Huang

gave birth to their first child, a son, on October 22, 2004. Their

second child, a daughter, followed on April 27, 2006. 

On December 1, 2005, while pregnant with her daughter,

Huang filed a petition for political asylum, withholding of

removal, and protection under the Convention Against Torture

(“CAT”). The petition sought relief on the ground that, once

Huang gave birth to her daughter, she would be in violation of

Chinese family-planning policies, which generally permit

Chinese citizens to have only one child. Huang stated in the

petition that her mother, aunt, and three aunts-in-law had

undergone compulsory sterilization at the hands of Chinese
4

authorities, and that she would likewise be “forced to be

sterilized” under those policies if she returned to China. (R. at

2283.) The filing of Huang’s asylum petition apparently alerted

the Department of Homeland Security (“DHS”) to her illegal

status in the United States because, on January 31, 2006, the

government served Huang with a notice to appear, charging her

with being a removable alien. Removal proceedings

commenced in New York but, because Huang had moved to

East Orange, New Jersey around the time that her daughter was

born, her case was transferred to New Jersey. 

A. Proceedings before the IJ

On April 25, 2007, an IJ conducted a hearing on Huang’s

petition. Huang testified that, because she has violated familyplanning policies, she fears she will be sterilized if she returns

to China. To corroborate her testimony, Huang produced a letter

from her in-laws, Li Ping Ye and Chun Cai Wang, dated August

8, 2006 (“the in-laws’ letter”), in which her in-laws stated that

they spoke with Fujian family-planning authorities who

informed them that Huang will be sterilized and fined if she

returns to China. She also submitted an affidavit from a native

of Fujian Province who resided in Japan as a student for several

years and fathered two children while living there. According

to the affidavit, Fujian family-planning authorities forced him to

be sterilized when he returned to China. In addition, the IJ

considered a letter dated January 9, 2007, that the government

obtained from the State Department (“the 2007 State

Department letter”) regarding whether compulsory sterilization

continues to occur in Fujian Province. According to the letter,

“Chinese officials assert that national laws and policy and
5

provincial regulations do not permit forced abortions or

sterilizations, [but nonetheless] there is evidence that they have

taken place ... .” (R. at 1353.) The letter referred to the State

Department’s 2007 Profile of Asylum Claims and Country

Conditions for China (“the 2007 Asylum Profile”), according to

which the Department had received reports of compulsory

sterilizations in Fujian Province as recently as 2006. The IJ also

considered the State Department’s 2006 Country Report on

Human Rights Practices (“the 2006 Country Report”), reflecting

that “forced sterilizations and abortions, in violation of the

national law, continued to be documented in rural areas. During

[2006], officials ... in Fujian province reportedly forcibly

sterilized women.” (Id. at 966.)

However, evidence from the State Department was

equivocal regarding whether Fujian Province authorities would

likely find that an alien like Huang, who had given birth to

multiple children abroad, instead of in China, had actually

violated family- planning policies. According to the 2007 State

Department letter, foreign-born children are not considered

permanent residents of China and therefore do not “count” for

purposes of family-planning regulations unless they become

Chinese citizens or register as members of their parents’

household. (Id. at 1353.) Couples have no obligation to register

foreign-born children, the letter indicates, but families with

unregistered children must pay additional fees for unregistered

children to have access to social services such as medical care

and public education. Other evidence from the State

Department, including a 2002 bulletin designed to give travelers

an overview of Chinese society, states that “[c]hildren born in

the United States to [Chinese] national parents ... are not
 The Chinese central government in Beijing has promulgated 2

a nationwide family- planning statute that requires each province

and municipality to establish its own set of family-planning

regulations and to create both provincial and municipal

authorities to oversee and enforce those regulations. While the

record does not expressly describe the functions of the Fujian

Department of Family Planning Administration, it appears that

the FDFPA is the authority charged with overseeing provincewide family-planning policies. 

6

recognized as U.S. citizens under Chinese nationality law” and

are instead “treated solely as [Chinese] nationals by Chinese

authorities when in China.” (Id. at 339.) That position is

confirmed by a 2003 administrative decision issued by the

Fujian Department of Family-Planning Administration

(“FDFPA”), which states that “if either parent remains a 2

Chinese national and citizen without permanent residence

overseas[,] any child of such a couple shall be treated as a

Chinese national and citizen for ... domestic administrative

purposes regardless of the child’s nationality conferred by his or

her country of birth.” (Id. at 1895.) Thus, that administrative

decision asserts that foreign-born children of Chinese nationals

are automatically counted as Chinese residents for purposes of

Fujian family-planning policies. (See id. at 1896 (stating, as the

official position of the FDFPA, that an employee of the Chinese

government who “reproduced a second child while on a family

visit in the United States is in violation of family-planning

regulations”).) 
7

Citing the conflicting evidence, the IJ granted Huang’s

asylum application. The IJ concluded that Huang possessed a

well-founded fear of persecution because the birth of her second

child likely placed her in violation of Fujian family-planning

regulations. While recognizing that the 2007 State Department

letter intimated that an alien in Huang’s situation would not be

sterilized, the IJ nevertheless found that “[t]he children will

come to the attention of the authorities and there’s a strong

possibility [Huang] will be forbidden to have any other children

and some sort of procedure will be carried out on her and/or her

husband.” (R. at 1322.)

B. Proceedings before the BIA

The government appealed to the BIA, challenging the

grant of asylum on the basis that reports of compulsory

sterilization varied greatly from municipality to municipality and

that Huang had failed to show she would return to an area in

Fujian Province where such procedures actually occurred. The

government also contended that Huang lacked a well-founded

fear of persecution because she could avoid sterilization by

choosing not to register her children as permanent residents of

China. 

1. Huang’s Newly Submitted Evidence

In response, Huang submitted several pieces of evidence

that she had not produced before the IJ but which she urged the

BIA to consider in the first instance. Among those exhibits was

a DHS report dated April 17, 2007, that contained a response

from the Fujian Province Office of Foreign Affairs to a DHS
 While the report was not prepared for use in Huang’s case, 3

several of the documents it discusses were submitted in support

of her petition. 

8

inquiry seeking, among other things, clarification regarding

whether foreign-born children of Chinese nationals are counted

under Fujian family-planning policies. Fujian officials 3

responded that whether foreign-born children count toward

family-planning quotas depends upon whether their parents

register them as permanent Chinese residents when the family

returns to China. Children who have been formally registered

will be considered for purposes of family-planning enforcement.

Children who have not been formally registered are not

considered permanent residents of China and therefore do not

count, but, as indicated in the 2007 State Department letter,

parents must pay additional fees in order for such children to use

many social services. 

In addition to the DHS report, Huang submitted Chinese

family-planning propaganda, Chinese travel documents for her

children, and two administrative decisions from the FDFPA and

the Changle City Planning Board indicating that foreign-born

children are counted for family-planning purposes. She also

submitted two documents dated November 15, 2007, obtained

from her mother-in-law, Li Ping Ye. The first document is an

affidavit in which Ye testifies that she inquired with familyplanning officials in Huang’s husband’s hometown of Fuzhou,

Fujian Province, whether Huang will face sanctions if she

returns to China. According to the affidavit, those officials

informed Ye that, despite the national government’s policy
9

against mandatory sterilization, “Chinese citizens ... must obey

the family planning policy of China, one child IUD inserted, two

children sterilization; unless they are not Chinese citizens[.

A]lthough, [Huang and her husband] gave birth[] to two

children in U.S., one of the couple must be sterilized with fines

as well” upon returning to China. (R. at 148.) The second

document is a written certification purportedly issued by Fuzhou

family-planning authorities in response to Ye’s inquiry,

indicating that an “IUD must be inserted after giving birth to a

boy, and can not give birth again. The second child is allowed

with birth permit after interval of four years if the first child is

a girl, sterilization must be implemented after that.” (Id. at 152.)

Huang argued that, if the BIA was inclined to reverse the

IJ’s grant of asylum on the existing record, it should

nevertheless affirm based on the newly submitted evidence.

Huang also asked, in a motion filed as part of her brief

(hereinafter “the motion to remand”), that, if the BIA refused to

consider the new evidence, it nevertheless remand the case to

the IJ and reopen the record for consideration of that evidence

by the IJ in the first instance. The BIA denied the motion in a

footnote, stating that “[t]he Board does not consider evidence

submitted on appeal” and that, in any event, many of the

documents were cumulative of other evidence in the record. (Id.

at 4 n.1.) 

2. The Merits of Huang’s Asylum Petition

On the merits, the BIA reviewed de novo the IJ’s grant of

asylum and reversed it, saying that an objectively reasonable

person in Huang’s situation would not have harbored a fear of
 The BIA also rejected Huang’s claims for withholding of 4

removal and relief under the CAT, for essentially the reasons it

gave for denial of her asylum petition. The CAT claim is not

before us on appeal. 

10

persecution. The BIA gave four reasons for its holding. First,

it observed that no uniform policy of sterilization exists in

Fujian Province and that, while violators of family-planning

policies sometimes face fines, officials often impose no

sanctions. Second, it noted that Huang had produced no

evidence that she would be individually targeted for

sterilization. Third, the BIA concluded that the affidavit from

the Chinese citizen who returned from Japan was unreliable

because it “did not contain all of the underlying facts of that

case.” (Id. at 5.) Finally, the agency rejected the in-laws’ letter

as a basis for a well-founded fear of persecution because the

letter contained multiple layers of hearsay. The BIA did not

comment on the State Department reports intimating that

compulsory sterilization continues in some parts of Fujian

Province. On November 6, 2008, the BIA entered a final order

of removal. Huang then filed a timely petition for review. 

4

II. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to

review a final order of removal issued by the BIA. The BIA

possesses appellate jurisdiction over IJs’ decisions, which the

BIA may either summarily affirm or analyze in an independent

opinion. 8 C.F.R. § 1003.1(e)(4)-(6). If the BIA summarily

affirms an IJ’s order, we review the IJ’s decision as the final
11

administrative determination. Konan v. Att’y Gen., 432 F.3d

497, 500 (3d Cir. 2005). When the BIA issues a separate

opinion – as it did in Huang’s case – we review the BIA’s

disposition and look to the IJ’s ruling only insofar as the BIA

defers to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.

2006). 

The BIA’s ruling on an asylum petition is “conclusive

unless manifestly contrary to the law and an abuse of

discretion.” 8 U.S.C. § 1252(b)(4)(D). We review the facts

upon which the BIA’s decision rests to ensure that they are

supported by substantial evidence from the record considered as

a whole, Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 106 (3d

Cir. 2010), and we will reverse based on a factual error only if

any reasonable fact-finder would be “compelled to conclude

otherwise,” 8 U.S.C. § 1252(b)(4)(B). We review the BIA’s

legal conclusions de novo, but we accord deference under

Chevron v. National Resources Defense Counsel, Inc., 467 U.S.

837 (1984), to its interpretation of statutes and regulations

within its enforcement jurisdiction. Wang v. Ashcroft, 368 F.3d

347, 349 (3d Cir. 2004); see also Auer v. Robbins, 519 U.S. 452,

461 (1997) (holding that an agency’s interpretation of its own

regulations is “controlling unless plainly erroneous or

inconsistent with the regulation” (citation and quotation marks

excluded)).

III. Discussion

Huang raises three issues on appeal. First, she argues

that the BIA did not apply the correct standard of review to the

IJ’s determination that she had a well-founded fear of
12

persecution. Second, she contends that, even if the BIA applied

the correct standards of review, it abused its discretion in

reversing the IJ’s grant of asylum because the evidence of

record was sufficient to show that she has a well-founded fear

of persecution in the form of mandatory sterilization. Third, she

contends that the BIA abused its discretion in failing to remand

her case to the IJ to consider her new evidence. Because the

merits of Huang’s asylum petition are intertwined with her

challenge regarding the BIA’s standards of review, we will

address those issues together before discussing the motion to

remand.

A. The Asylum Petition

Section 208 of the Immigration and Nationality Act 

(“INA”), 8 U.S.C. § 1158, confers authority upon the Attorney

General to grant asylum to aliens who enter the United States if

they qualify for refugee status. Id. § 1158(b)(1)(A). The

Attorney General has delegated that authority to immigration

judges, whose decisions are reviewable by the BIA. 8 C.F.R. §§

1003.1(b), 1003.14. 

To qualify for refugee status, an alien must show that he

is unable or unwilling to return to his native country due either

to past persecution or a well-founded fear of future persecution.

8 U.S.C. § 1101(a)(42)(A); Chavarria, 446 F.3d at 516. The

INA contains no statutory definition of “persecution,” but we

have explained that the term does not encompass all forms of

unfair, unjust, discriminatory, or unlawful treatment; rather it

covers only severe humanitarian mistreatment, such as “death

threats, involuntary confinement, torture, and other severe
 Mandatory birth-control measures short of abortion or 5

sterilization, such as insertion of an IUD or required

gynecological screenings, do not, on their own, rise to the level

of persecution and therefore cannot be the sole support of an

award of asylum. In re M-F-W- & L-G-, 24 I. & N. Dec. 633,

636-37 (B.I.A. 2008). However, such measures do qualify as a

“coercive population control program,” and an alien may obtain

asylum if he resists those measures and the government

persecutes him as a result. Id. at 638. In this appeal, Huang

seeks asylum based on the fear that she will be sterilized if

returned to China. That fear, if well-founded, unquestionably

entitles her to relief. 

13

affronts to the life or freedom of the applicant.” GomezZuluaga v. Att’y Gen., 527 F.3d 330, 341 (3d Cir. 2008). To

constitute a basis for asylum, the persecution must have been

motivated by a statutorily protected ground, namely the alien’s

race, religion, nationality, political opinion, or membership in a

particular social group. 8 U.S.C. § 1101(a)(42)(A). A person

who is forced to undergo an abortion or a sterilization, or who

has been persecuted for refusing to comply with a coercive

population control policy, is deemed to have been persecuted

based on political opinion. Id. § 1101(a)(42)(B). Similarly, a 5

person who has a well-founded fear of those consequences is

deemed to have a well-founded fear of political opinion-based

persecution. Id. The alien bears the burden of proving

eligibility for asylum through credible evidence. 8 C.F.R. §

1208.13(a); Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005).

In this case, past persecution is not at issue. Huang’s right to
14

asylum turns only upon whether she has a well-founded fear of

persecution in the form of sterilization if she returns to China.

To establish a well-founded fear of persecution, the alien

must demonstrate, first, that the alien “has a fear of persecution

. . . on account of race, religion, nationality, membership in a

particular social group, or political opinion”; second, that there

is a “reasonable possibility” that the alien will suffer persecution

based on a protected ground if returned to his or her native

country; and third, that the alien “is unable or unwilling to return

to, or avail himself or herself of the protection of, that country

because of such fear.” 8 C.F.R. § 1208.13(b)(2)(i). 

The courts have interpreted the term “well-founded fear”

to include both subjective and objective aspects: the alien must

entertain a subjective apprehension that persecution will follow

repatriation, and that apprehension must be objectively

reasonable in light of the circumstances of the alien’s case. Sioe

Tjen Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir. 2008). The

objective component of the analysis requires the alien to show

that a reasonable person in his position would fear persecution,

either because he “would be individually singled out for

persecution” or because “there is a pattern or practice in his

home country of persecution” against a group of which he is a

member. Id. (internal quotations omitted); see also Camara v.

Att’y Gen., 580 F.3d 196, 202 (3d Cir. 2009) (observing that the

objective component of the well-founded fear analysis requires

the alien to demonstrate that “a reasonable person in her

circumstances would fear persecution if returned to her native

country”). 
 The BIA’s standards of review differ markedly from the 6

standard that governs our review of BIA decisions. We lack

jurisdiction to review the grant or denial of many forms of

discretionary relief, 8 U.S.C. § 1252(a)(2)(B), and when

reviewing asylum petitions, over which we do possess

jurisdiction, id., we may not reverse the BIA’s discretionary

actions unless they are “contrary to law and an abuse of

discretion.” Id. § 1252(b)(4)(D). 

15

1. BIA’s Standards of Review in Asylum

Cases

Under 8 C.F.R. § 1003.1(d)(3), the BIA may not reverse

an IJ’s factual findings unless they are clearly erroneous. Id.

§ 1003.1(d)(3)(i). The IJ’s legal conclusions, however, are

subject to plenary review. Id. § 1003.1(d)(3)(ii). The BIA also

has plenary review over the IJ’s exercise of discretionary

authority. Id. Thus, questions of judgment, such as an IJ’s

decision to grant asylum, to reopen the record, or to reconsider

a disposition, receive no deference from the BIA. Whether a 6

particular determination by the IJ constitutes a finding of fact or

a conclusion of law is significant because that characterization

affects the level of deference that the BIA must give to the

determination. 

In this appeal, Huang argues that the BIA did not apply

the correct standard of review when it rejected the IJ’s

conclusion that she has a well-founded fear of persecution.

Huang asserts that the question of whether an alien has a wellfounded fear of persecution is a purely factual one and that the
16

BIA may reverse an IJ’s finding that an alien has such a fear

only if the finding is clearly erroneous. According to Huang, the

BIA’s reversal departed from the “clearly erroneous” standard

because the record contains sufficient evidence to support the

IJ’s finding that she possesses a well-founded fear of

sterilization. The government responds by relying on In re

A-S-B-, 24 I. & N. Dec. 493, 498 (B.I.A. 2008), in which the

BIA held that it exercises de novo review over the question of

whether an alien possesses a well-founded fear of persecution

because that determination requires speculation about future

events and therefore does not qualify as fact-finding. Huang

does not expressly challenge A-S-B-, but, in arguing that a wellfounded fear of persecution presents a purely factual issue, she

nonetheless calls that decision into question. Thus, we begin by

considering whether A-S-B- is consistent with the standards of

review described in § 1003.1(d)(3). 

a. Validity of A-S-B- in the Asylum

Context

In A-S-B-, the BIA held that the forecasting of future

events in an asylum case does not constitute fact-finding

because predictions are inherently speculative and it is

“impossible to declare as ‘fact’ things that have not yet

occurred.” 24 I. & N. Dec. at 498. The BIA has therefore taken

the position that no deference is owed to an IJ’s conclusion

regarding the risk that an event will take place once an alien is

repatriated. Id.; see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec

209, 212 (B.I.A. 2010) (“We ... review de novo the question

whether the respondent has carried her burden of establishing a

well-founded fear that the family planning policy will be
17

enforced against her through means constituting persecution

upon her return to China.”). 

In Kaplun v. Attorney General, 602 F.3d 260 (3d Cir.

2010), we considered in the context of a CAT claim whether

A-S-B- set forth a valid interpretation of the standards of review

required by § 1003.1(d)(3). The BIA had, as in asylum cases,

concluded that the forecasting of future events in the CAT

context did not constitute fact-finding because it involved

speculation. See In re V-K-, 24 I. & N. Dec. 500, 501 (B.I.A.

2008) (“Although predictions of future events may in part be

derived from “facts,” they are not the sort of “[f]acts determined

by the Immigration Judge” that can only be reviewed for clear

error.” (quoting § 1003.1(d)(3))). We rejected that holding as a

plainly erroneous interpretation of § 1003.1(d)(3) because the

probability of an event occurring in the future exists

independently of the event itself, and is therefore a separate and

distinct “fact” in the relevant legal sense. Kaplun, 602 F.3d at

269. “This likelihood, while an assessment 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.” Id.

We explained that while the event may occur in the future, the

possibility of its occurring exists in the present. Thus, a

determination by an IJ that an event may take place when an

alien is repatriated constitutes a finding of fact because the

probability itself currently exists and gives rise to a present

apprehension of the event it represents. Id. Accordingly, we

concluded that, “insofar as the BIA interpret[s] 8 C.F.R. §

1003.1(d)(3) to hold that an IJ’s assessment of [future events] is

not a finding of fact because the events have not yet occurred,
18

... its interpretation plainly errs.” Id. (citing Auer v. Robbins,

519 U.S. 452, 461 (1997)). 

We reserved judgment in Kaplun regarding whether

A-S-B-’s holding might nonetheless continue to govern in

asylum cases. 602 F.3d at 269 n.7 (“To the extent that A-S-B- ...

address[es] the standard of review applied to an IJ’s

determination of a ‘well-founded fear of future persecution’ in

the asylum context ... , we do not purport to resolve that issue at

this time.”). We now conclude, however, that, for essentially

the reasons expressed in Kaplun, A-S-B-’s interpretation of §

1003.1(d)(3) is plainly erroneous. That section applies to both

CAT and asylum cases, and, though there are important

distinctions between the two, see infra note 7, the process of

forecasting future events is a factual inquiry in an asylum case

for the same reasons it is in a CAT case. In considering a CAT

case, the IJ must identify what events are likely to occur after

repatriation and, once that is done, must determine whether the

alien has demonstrated that what he is likely to suffer amounts

to torture. Similarly, an asylum case requires the IJ to determine

what events have a reasonable possibility of occurring, so that

there can be an assessment of whether an alien possesses a wellfounded fear of persecution. We therefore conclude that the

interpretation of § 1003.1(d)(3) in A-S-B- cannot stand, and we

hold that an IJ’s forecasting of future events constitutes factfinding that the BIA must review under the clearly erroneous

standard. However, that is far from the end of the matter.
19

b. Analysis of IJ Asylum Decisions

The assessment of future events is only one part of the

analysis of an asylum case based on the assertion of a wellfounded fear of persecution. In any asylum case predicated on

the fear of future persecution, an IJ must answer three essential

questions. First, as just noted, the IJ must ask what may happen

if the alien returns to his home country. See INS v. CardozaFonesca, 480 U.S. 421, 423 (1987) (reflecting that asylum

protects aliens who show that they may be persecuted if they

return home). Second, the IJ must question whether those

events meet the legal definition of persecution. See Shardar v.

Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004) (rejecting an asylum

claim because the alien failed to show that the treatment he

might encounter upon returning home qualified as persecution).

Third, the IJ must consider whether the possibility of those

events occurring gives rise to a well-founded fear of persecution

under the circumstances of the alien’s case. See EspinosaCortez, 607 F.3d at 108 (stating that, to establish a well-founded

fear, the alien must prove that he has a subjective apprehension

of harm and that his fear is objectively reasonable). 

As we stated above, the IJ’s answer to the first question

is factual in nature and is subject to clearly erroneous review by

the BIA. The answer to the second question – whether those

events meet the legal definition of persecution – is reviewed de

novo because it is plainly an issue of law. Cf. Board of

Immigration Appeals: Procedural Reforms to Improve Case

Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002)

(“The immigration judge’s determination[] of whether ... facts

demonstrate harm that rises to the level of ‘persecution[]’ ... [is]
 The text of 8 C.F.R. § 1003.1(d)(3)(i) & (ii) is as follows: 7

(d) Powers of the Board [of Immigration Appeals]– ...

(3) Scope of review. 

(i) The Board will not engage in de novo review of

findings of fact determined by an immigration judge.

Facts determined by the immigration judge, including

findings as to the credibility of testimony, shall be

reviewed only to determine whether the findings of the

immigration judge are clearly erroneous. 

(ii) The Board may review questions of law, discretion,

and judgment and all other issues in appeals from

decisions of immigration judges de novo.

20

not ... limited by the ‘clearly erroneous’ standard.”). The

question we turn to here is what standard of review the BIA

should apply when a party challenges the IJ’s answer to the third

question, whether the facts support a well-founded fear of

persecution.

To address that issue, we turn to the text of

§ 1003.1(d)(3) and to the Attorney General’s guidance regarding

implementation of that regulation. See Lewis v. Atlas Van 7

Lines, Inc., 542 F.3d 403, 409 (3d Cir. 2008) (“We begin our

analysis ... with the rule that ‘[t]he basic tenets of statutory

construction apply to construction of regulations and our starting

point on any question concerning the application of a regulation

is its particular written text.’” (quoting Pa. Fed’n of Sportsmen’s

Clubs, Inc. v. Kempthorne, 497 F.3d 337, 351 (3d Cir. 2007)));

Bragdon v. Abbott, 524 U.S. 624, 642 (1998) (“[T]he well-
21

reasoned views of the agencies implementing a statute constitute

a body of experience and informed judgment to which courts

and litigants may properly resort for guidance.” (internal

quotation omitted)). 

Section 1003.1(d)(3) provides that IJ decisions that are

purely factual in nature receive clear error review. 8 C.F.R.

§ 1003.1(d)(3)(i). All other decisions are reviewed de novo. Id.

§ 1003.1(d)(3)(ii). The Attorney General has explained that,

under this two-tiered system, the highly deferential clearly

erroneous review applies only to the IJ’s description of the

events and circumstances that 

form the factual basis for the decision under

review. The ‘clearly erroneous’ standard does not

apply to determinations of matters of law, nor to

the application of legal standards, in the exercise

of judgment or discretion. This includes

judgment as to whether the facts established by a

particular alien amount to “past persecution” or a

“well-founded fear of future persecution.”

Procedural Reforms to Improve Case Management, 67 Fed. Reg.

at 54,890. The Attorney General’s guidance thus suggests that

the answer to the third question – whether the facts give rise to

a well-founded fear of persecution – is subject to de novo review

because it requires the exercise of judgment in the application of

the well-founded fear standard to the facts of the alien’s case.

Id. The factual-versus-legal distinction is less clear on this

point, however, because the definition of a well-founded fear of
22

persecution includes elements that are both legal and factual in

nature. 

The government’s briefing correctly observes that

judging the objective reasonableness of the alien’s fear involves

a “legal standard[] that must be applied to the immigration

judge’s factual findings, and [is] thus reviewed by the Board de

novo.” (Gov’t Supp. Br. at 2.) In essence, the government

acknowledges that whether an alien has a well-founded fear

presents a mixed question of fact and law. We agree. A mixed

question of fact and law is one that requires application of a

legal standard to a particular set of circumstances. See 9C

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 2589, at 473 (3d ed. 2008)

(characterizing mixed questions as those which “involve

elements of both law and fact”). That is precisely the nature of

the well-founded fear inquiry. 

An IJ reviewing an assertion of well-founded fear must

determine whether the alien has an objectively reasonable fear

of persecution based on the events that may occur if he returns

home. See Procedural Reforms to Improve Case Management,

67 Fed. Reg. at 54,890 (characterizing the well-founded fear

inquiry as an analysis requiring “the application of legal

standards”); see also Board of Immigration Appeals: Procedural

Reforms to Improve Case Management, 67 Fed. Reg. 7309,

7315 (Feb. 19, 2002) (describing, in a proposed version of

§ 1003.1(d)(3), that the regulation was “not [designed to]

preclude the Board from reviewing mixed questions of law and

fact, including, without limitation, whether an alien has

established a well-founded fear of persecution”). The factual
 There is an important difference between this kind of 8

analysis and the one that we set forth in Kaplun for CAT claims.

The CAT requires an alien to prove that it is more likely than

not he will be tortured if he is repatriated. Gomez-Zuluaga, 527

F.3d at 349. Thus, an IJ may award relief under the CAT if the

IJ, first, identifies what may occur when the alien returns home,

second, attaches a probability of more than 50% to that event,

and, third, determines that the probable event qualifies as

torture. In an asylum case, however, “well-founded fear” turns

not on an assessment of what is more likely than not but on what

is “possible,” and then on whether the alien’s fear of that

possibility is reasonable. See Espinosa-Cortez, 607 F.3d at 108

(“To satisfy the objective prong [of the well-founded fear test],

the petitioner must show that a reasonable person in the alien's

circumstances would fear persecution if returned to the country

in question.” (internal quotation marks and citation omitted)).

Fundamental to the inquiry is a factual determination regarding

whether the event the alien allegedly fears falls within the realm

of the possible, but an equally fundamental component of the

23

part of the inquiry requires the IJ to evaluate what may occur

when the alien is repatriated, including whether there has been

a pattern or practice in the alien’s home country of targeting for

persecution a statutorily protected group of which the alien is a

member or whether he will be individually targeted based on a

protected characteristic. The legal part of the inquiry requires

the IJ to apply the objective reasonableness standard and

determine whether the predicted events (and pattern or practice,

if applicable) would cause a reasonable person in the alien’s

situation to fear persecution. That legal piece of the analysis 8
analysis requires a judgment about whether the possible event

actually gives rise to a reasonable fear. In terms of the

“possibility,” the Supreme Court has noted that “[o]ne can

certainly have a well-founded fear of an event happening when

there is less than a 50% chance of the occurrence taking place.”

Cardoza-Fonseca, 480 U.S. at 431. An IJ may find an event to

be reasonably possible and conclude that an alien would have a

well-founded fear of persecution based on it. The BIA may

review that decision, and conclude, without rejecting the IJ’s

factual finding regarding the possibility of the event, that, in its

judgment, the possibility of the event does not give rise to an

objectively reasonable fear of persecution. Such a determination

does not reject the IJ’s factual finding that the event may occur;

it merely constitutes a judgment by the BIA that the event,

though possible, does not give rise to an objectively reasonable

fear. That exercise is properly performed using a de novo

standard of review.

24

properly receives de novo review from the BIA. 8 C.F.R.

§ 1003.1(d)(3)(ii) (“The Board may review questions of law,

discretion, judgment and all other issues ... de novo.”). 

Treating the reasonableness of an alien’s fear as a mixed

question of fact and law is in keeping with how appellate

tribunals typically treat issues of objective reasonableness. See

9C WRIGHT & MILLER, § 2589, at 473-74 (“[T]here is

substantial authority that ... determination [of mixed questions

of fact and law] is not within the ambit of the ‘clearly erroneous’

rule and they are freely reviewable ... .”). For example, in the

context of qualified immunity for constitutional torts, the
25

reasonableness of a state actor’s conduct based on undisputed

facts is subject to de novo review as a question of law. See

Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002) (concluding

that the reasonableness of a state actor’s conduct must be

decided by the court). Similarly, when interpreting ambiguous

contract provisions, courts ask as a matter of law how a

reasonable person would read the term at issue. See MBIA Ins.

Corp. v. Royal Indem. Co., 426 F.3d 204, 210 (3d Cir. 2005)

(“Whether a contract is ambiguous is determined according to

an objective, reasonable-person standard and is a question of

law.”). Also, when ruling on a federal criminal defendant’s

claim for ineffective assistance of counsel, courts determine as

a mixed question of fact and law whether the conduct of the

petitioner’s trial counsel comported with that of an objectively

reasonable attorney. See United States v. Cross, 308 F.3d 308,

314 (3d Cir. 2002) (stating that ineffective assistance claims

challenging the validity of a federal sentence “present mixed

questions of law and fact” subject to de novo review). Even in

negligence cases, where questions of reasonableness are

submitted to juries and reviewed for clear error on appeal,

Travelers Indem. Co. v. Ewing, Cole, Erdman & Eubank, 711

F.2d 14, 17 (3d Cir. 1983), federal courts have recognized that

analyzing cases in that way “is an exception to the general rule

that mixed questions of law and fact are reviewed de novo.”

Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th Cir. 1995).

That standard of review is, moreover, consistent with the

Attorney General’s expressed goal in promulgating the BIA’s

two-tier level of review, namely, to bring national uniformity to

immigration law by allowing the BIA “to consider and resolve

instances where ‘differing decisions may be reached based on
26

essentially identical facts.’” Procedural Reforms to Improve

Case Management, 67 Fed. Reg. at 54,890 (quoting In re

Burbino, 20 I. & N. Dec. 872, 873 (B.I.A. 1994)). Many aliens

flee their home countries under very similar circumstances that

should, in fairness, lead to similar outcomes in their asylum

petitions. If a determination regarding an alien’s well-founded

fear were reviewed only under the clearly erroneous standard, it

would be difficult to confront the problem of multiple IJs

reviewing substantively similar asylum petitions but reaching

different conclusions about whether a reasonable person would

have a well-founded fear of persecution. The BIA would be

powerless to correct the disparity, even when the petitions were

identical in all meaningful respects. The BIA has recognized

that preventing this type of discord among IJ decisions is one of

its major institutional goals, and one that requires it to exercise

de novo review over how reasonable people would respond to a

particular set of facts. Burbino, 20 I. & N. Dec. at 873-74 (“The

advantage of an independent standard of review is that it

promotes uniformity in the application of the various

discretionary provisions of the [INA]”); see also In re

Crammond, 23 I. & N. Dec. 9, 15 (B.I.A.) (“Important policy

considerations favor applying a uniform federal standard in

adjudicating removability . . . under the Act.”), vacated on other

grounds by 23 I. & N. Dec. 179 (B.I.A. 2001). 

Characterizing objective reasonableness in this way is

also consistent with our precedent. We have recognized that the

BIA exercises de novo review over “the determination as to

whether certain facts give rise to a well-founded fear of

persecution.” Sheriff v. Att’y Gen., 587 F.3d 584, 592 (3d Cir.

2009). The well-founded fear inquiry depends heavily upon
 Courts of Appeal have recognized a variety of situations in 9

which administrative agencies – by virtue of their particular

expertise and Congressional mandate – possess greater latitude

in addressing mixed questions of fact and law than do appellate

courts when reviewing administrative dispositions. See Lion

Uniform, Inc., Janesville Apparel Div. v. NLRB, 905 F.3d 120,

123-24 (6th Cir. 1990) (finding that an agency could properly

review an administrative law judge’s award of attorney fees de

novo, even though the same issue was reviewed by the court of

appeals for substantial evidence, because the two types of appeal

were designed to accomplish different functions: whereas the

administrative appeal was designed to render disposition on

behalf of the agency, judicial review was created only to ensure

that the agency’s decision was rooted in the record); compare 24

C.F.R. § 26.52(k) (providing that the Secretary of Housing and

Urban Development, when reviewing decisions issued by an

administrative law judge (“ALJ”), may “affirm, modify, reduce,

reverse, compromise, remand, or settle any relief” granted by the

ALJ), with White v. U.S. Dep’t of Hous. & Urban Dev., 475 F.3d

898, 904 (7th Cir. 2007) (indicating that the Secretary’s

determination receives “deferential[] review” from the court of

27

applying a legal standard to the factual issues of a particular

alien’s case, and we have stated that the BIA’s disposition of the

inquiry “‘must be upheld if it is supported by substantial

evidence in the record.’” Espinosa-Cortez, 607 F.3d at 107

(quoting Gomez-Zuluaga, 527 F.3d at 340). Thus, the BIA has

greater latitude in reviewing an IJ’s decision on well-founded

fear than do we when reviewing the disposition of the BIA

itself. Compare Procedural Reforms to Improve Case 9
appeals and will be “reverse[d] only if the determination is

legally or procedurally unsound, or is unsupported by substantial

evidence” (internal quotation omitted)); compare 5 U.S.C.

§ 557(b) (stating that, when an ALJ renders a decision, the

agency who has jurisdiction over that ruling may review that

decision using “all of the power which it would have[,]” had it

made the decision in the first instance), with id. § 706(2)

(proving that a court reviewing an agency’s final determination

may reverse only, among other things, for a lack of substantial

evidence or if the agency acted in an arbitrary manner or abused

its discretion).

28

Management, 67 Fed. Reg. at 54,890 (“The ‘clearly erroneous’

standard does not apply ... to the application of legal standards,

... includ[ing] judgments as to whether the facts established by

a particular alien amount to ... a ‘well-founded fear of future

persecution.’”), with Kibinda v. Att’y Gen., 477 F.3d 113, 118-

19 (3d Cir. 2007) (stating that the administrative determination

regarding a well-founded fear of persecution must be upheld

unless “the evidence not only supports a contrary conclusion,

but compels it” (internal quotations omitted)). It is therefore

appropriate for the Attorney General to grant the BIA de novo

review over the “objective reasonableness” component of the

well-founded fear inquiry, even though we grant greater

deference to the BIA’s disposition of that question on a petition

for review. 

In sum, evaluating whether a reasonable person would

fear persecution under a particular set of circumstances requires

the exercise of legal judgment in applying a standard of
29

objective reasonableness to the facts of an alien’s particular

case. The resulting determination is one over which the BIA has

plenary review. 8 C.F.R. § 1003.1(d)(3)(ii). Of course, part of

the well-founded fear determination may depend on disputed

facts, which must be resolved by the IJ, whose decisions in that

regard are subject to clearly erroneous review. Once the IJ

resolves factual issues, though, assessing how a reasonable

person would respond to those facts is a question of law, and the

BIA is within its authority to review that assessment under a de

novo standard.

However, when the BIA reaches a different conclusion

than the IJ, either on the facts or the law, its review must reflect

a meaningful consideration of the record as a whole. It is not

enough for the BIA to select a few facts and state that, based on

them, it disagrees with the IJ’s conclusion. Cf. Sheriff, 587 F.3d

at 595 (faulting BIA for neglecting to consider several facts

crucial to the petitioner’s asylum application, including the fact

that government forces in her native country had destroyed her

home, murdered her mother, and raped her daughter in her

presence). Instead, the BIA must describe its reasoning with

enough specificity to inform the parties and us why it reached its

conclusion. See Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir.

2003) (“In order for us to be able to give meaningful review to

the BIA’s decision, we must have some insight into its

reasoning.”). The BIA must show that it reviewed the record

and considered the evidence upon which the IJ relied, and it

must explain why the record warrants a different conclusion

than the one reached by the IJ. In an asylum case, this means

that the BIA must examine the record of the petitioner’s case
30

and explain why, based on that record, an objectively reasonable

alien would not fear persecution if returned to his home country.

2. The Merits of Huang’s Asylum Petition

While the BIA was free to disagree with the IJ as to

whether the evidence showed that Huang had an objectionably

reasonable well-founded fear, it could only do so if, as noted

above, it considered the record as a whole. Unfortunately, the

BIA’s opinion does not reflect that type of consideration. In

granting asylum, the IJ relied on the 2007 State Department

letter. That letter indicates that U.S. officials know of no policy

at the national or provincial level that “mandat[es] the

sterilization of one partner of couples that have given birth to

two children[,]” and that, to the extent an unwritten practice of

sterilization exists, Chinese citizens may be able to avoid it by

either paying social compensation fees or by choosing not to

register their children as members of their household. (Id. at

1353.) However, the letter says nothing about whether local

family-planning policies require sterilization, and Huang

submitted a 2003 administrative decision issued by the FDFPA

that contradicts what was said in the 2007 State Department

letter. According to that decision, a child born outside of China

to Chinese parents who do not have permanent residency in the

child’s country of birth “shall be treated as a Chinese national

and citizen for ... domestic administrative purposes,” including

enforcement of Fujian family-planning regulations. (Id. at

1895.) Even the 2007 State Department letter states that,

“[a]lthough Chinese officials assert that national laws and policy

and provincial regulations do no permit forced abortions or

sterilizations, there is evidence that they have taken place.” (Id.)
31

There is additional evidence from the State Department to

corroborate that finding. For example, according the 2007

Asylum Profile, the State Department had received reports of

compulsory sterilizations in Fujian Province as recently as 2006.

The 2006 Country Report confirms that, as of 2006, reports of

forced sterilizations in derogation of the national policy

continued to emanate from Fujian Province. In Fujian and

elsewhere, according to the report, parents of two children

commonly faced extreme psychological and economic pressure

to be sterilized, “sometimes [leaving] women with little practical

choice but to undergo abortion or sterilization.” (R. at 966.) 

Yet the BIA discussed none of that evidence, instead 

devoting its analysis to explaining why the lack of an express

sterilization policy, Huang’s lack of individualized evidence, her

in-laws’ letter, and the affidavit from the Chinese citizen who

fathered two children in Japan were insufficient to establish an

objectively reasonable fear of persecution. The BIA simply

failed to address any evidence that, if credited, would lend

support to Huang’s asserted fear of sterilization, and thus the

decision does not reflect a consideration of the record as a

whole. While we are not suggesting that the BIA must discuss

every piece of evidence mentioned by an asylum applicant, it

may not ignore evidence favorable to the alien, particularly

when, as here, the alien’s administrative brief expressly calls the

BIA’s attention to it. See Espinosa-Cortez, 607 F.3d at 107

(“[T]he BIA is not permitted simply to ignore or misconstrue

evidence in the asylum applicant’s favor.”). 

The BIA’s analysis does little more than cherry-pick a

few pieces of evidence, state why that evidence does not support
Huang claims that the BIA erred in denying her request for 10

withholding of removal, for the same reasons that she appeals its

asylum disposition. The substantive elements for obtaining

withholding are the same as for asylum, except that the alien

must prove by a preponderance of the evidence, rather by a

reasonable probability, that he will be persecuted based on a

statutorily protected ground if he is repatriated. Lukwago v.

Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Because the BIA

performed an inadequate asylum analysis and did not

independently assess Huang’s right to withholding of removal,

we cannot meaningfully address withholding of removal beyond

what is pertinent from our analysis of the asylum claim. We will

therefore remand Huang’s withholding claim for further

consideration in light of this opinion.

32

a well-founded fear of persecution, and conclude that Huang’s

asylum petition therefore lacks merit. That is selective rather

than plenary review. “Plenary” means “full; complete; entire,”

BLACK’S LAW DICTIONARY (9th ed. 2009), and with the power

to conduct plenary review goes the responsibility to conduct it.

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. See 10

Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006)

(requiring the BIA to perform an analysis of sufficient depth to

permit meaningful appellate review of its reasoning). Because

the BIA’s decision does not indicate that such a review took

place in Huang’s case, we will grant the petition for review,

vacate the final order of removal entered by the BIA, and

remand for further proceedings. 
 The BIA, of course, is not prevented from opening other 11

avenues of inquiry, if it chooses to remand the case to the IJ.

33

We note one final concern with respect to the merits.

The way that the BIA approached its analysis—selecting only

those pieces of evidence that cast doubt on the likelihood of

Huang’s being sterilized—suggests that the BIA was concerned

with whether Huang had demonstrated that forced sterilization

is more likely than not to occur if she is repatriated, when it

should instead have been assessing whether there was a

reasonable possibility of forced sterilization and whether her

fear was objectively reasonable, and thus well founded. In

Cardoza-Fonseca, the Supreme Court, cautioning that the fact

that the fear must be “well-founded” does not “transform the

standard into a ‘more likely than not’ one,” cited the example of

well-founded fear given by a “leading authority”:

Let us . . . presume that it is known that in the

applicant’s country of origin every tenth adult

male person is either put to death or sent to some

remote labor camp. . . . In such a case it would be

only too apparent that anyone who has managed

to escape from the country in question will have

“well-founded fear of being persecuted” upon his

eventual return.

480 U.S. at 431 (quoting 1 A. Grahl-Madsen, The Status of

Refugees in International Law 180 (1966)). The BIA should be

mindful of this distinction in considering the evidence anew on

remand.11
34

B. Motion to Remand

Huang also argues that the BIA abused its discretion in

denying her motion to remand for consideration of her new

evidence. The BIA treats a motion to remand for the purpose of

submitting additional evidence in the same manner as motions

to reopen the record. See 8 C.F.R. § 1003.2(c)(4); In re Coelho,

20 I. & N. Dec. 464, 471 (B.I.A. 1992) (“[W]here a motion to

remand is really in the nature of a motion to reopen or a motion

to reconsider, it must comply with the substantive requirements

for such motions.”). The alien must show that the “evidence

sought to be offered is material and was not available and could

not have been discovered or presented at the former hearing.”

8 C.F.R. § 1003.2(c)(1). The BIA may deny a motion to reopen

if it determines that “(1) the alien has not established a prima

facie case for the relief sought; (2) the alien ‘has not introduced

previously unavailable, material evidence’; or (3) in the case of

discretionary relief (such as asylum), the alien would not be

entitled to relief even if the motion was granted.” Caushi v.

Att’y Gen., 436 F.3d 220, 231 (3d Cir. 2006) (quoting INS v.

Abudu, 485 U.S. 94, 104-05 (1988)). To establish a prima facie

case for asylum, the alien must produce objective evidence that,

when considered together with the evidence of record, shows a

reasonable likelihood that he is entitled to relief. Guo v.

Ashcroft, 386 F.3d 556, 563 & n.7 (3d Cir. 2004). The BIA

“must actually consider the evidence and argument that a party

presents” and may not summarily dismiss the motion. Zheng v.

Att’y Gen., 549 F.3d 260, 266 (3d Cir. 2008) (quoting Abdulai

v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)). We review the

denial of a motion to remand or to reopen for abuse of

discretion, and “will uphold that determination if it is ‘supported
35

by reasonable, substantial, and probative evidence on the record

considered as a whole.’” Id. (quoting INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992)). 

Huang seeks remand for the IJ to consider the following

new evidence: 

(1) Chinese passports and travel documents for her

two children. 

(2) Family-planning propaganda, including posters

and a 2006 desk-calendar issued by authorities in

Lang Qi, Fujian Province, describing familyplanning policies, none of which state that

sterilization is mandatory after two births. 

(3) A report from DHS following an investigative

officer’s attempts to authenticate certain

documents describing birth control polices in

Fujian Province. The report identifies the

following documents as authentic:

(3a) Two documents issued by the FDFPA

dated January 17, 2007, indicating that the

foreign-born children of Chinese citizens

are not counted under the family-planning

policy unless they are registered as

permanent residents of China. 
36

(3b) A printout from the website of the

National Family Planning Commission,

stating that “Returned Overseas Chinese

are not allowed to have another child,

provided that they have already given birth

to two or more children abroad.” 

(3c) Two administrative decisions issued in

2003 by the FDFPA and the Changle City

Family Planning, which state that Chinese

citizens who give birth abroad will be

subject to enforcement of family-planning

regulations once they return home unless

they qualified as permanent residents of

the nation in which their children were

born at the time the birth occurred. 

(3d) The July 1999 poster describing birthcontrol policies in Changle City. 

(4) An affidavit dated November 15, 2007 from

Huang’s mother-in-law, Li Ping Ye, stating that

birth control authorities informed her that Huang

will be required to undergo a sterilization

procedure if she returns to Fuzhou. 

(5) A document purporting to be an official

certification issued by Fuzhou family-planning
37

authorities indicating that Huang will be sterilized

if she returns to Fuzhou. 

(6) A statement dated September 2, 2004, from the

Fujian Foreign Affairs Office in response to a

U.S. State Department inquiry indicating that

Fujian family-planning policies were amended in

2002, and that, since then, there has been no

official policy mandating sterilization. 

The BIA refused to consider all of this new evidence on the

grounds that it did not qualify as new or material because it was

available at the time of the hearing and was cumulative of other

evidence of record. 

We conclude that the BIA properly denied Huang’s

motion to remand with respect to all of the newly submitted

evidence except the certification purportedly issued by Fuzhou

family-planning authorities (Item 5). Much of the supposedly

new evidence was either within Huang’s control at the time of

the IJ proceedings or is duplicative of other parts of the record.

See In re O-S-G-, 24 I. & N. 56, 60 (B.I.A. 2006) (rejecting a

motion to reconsider because it merely reiterated facts and

arguments already in the record). The passport and travel

documents (Item 1) belonging to Huang’s son were in her

possession at the time of the IJ proceedings, and, while she did

not obtain a passport for her daughter until six months after the

IJ issued his decision, she offered the passports only to show

that her children qualify as Chinese citizens, a fact that the

government has never disputed. Both of the 2003 administrative
38

decisions (Item 3c) as well as the Changle City poster (Item 3d)

are not new because they were actually submitted to the IJ prior

to the hearing on Huang’s petition. The September 2, 2004

statement from the Fujian Foreign Affairs Office (Item 6),

which states that China has no official policy requiring

sterilization, and the documents from the FDFPA dated January

17, 2007 (Item 3a), which explain that foreign-born children are

not counted under provincial birth control policy, merely

reiterate what other documents in the record have stated. The

website (Item 3b) indicating that Chinese citizens returning from

abroad may not have children in China if they already have two

children is also redundant of other record materials, and the

content of Li Ping Ye’s affidavit (Item 4) duplicates the in-laws’

letter that was submitted to the IJ. The family-planning

propaganda (Item 2) is not duplicative of other items in the

record, and it may not have been in Huang’s possession before,

but it contains no reference to mandatory sterilization and

therefore has no significant bearing on her asylum rights. 

However, the BIA should have given more thorough

consideration to the motion to remand based on the certification

(Item 5) supposedly issued by Fuzhou family-planning

authorities. That document, which is dated November 15, 2007,

was unavailable when the IJ granted Huang asylum in April

2007, and, unlike any other evidence in the record, it purports to

be an official proclamation that Huang will be required to

undergo a sterilization procedure if she returns to China. The

document says it is issued by family-planning authorities in her

husband’s hometown of Fuzhou, a city with which she has

family connections and where she may return once she re-enters

China. The BIA’s own decision reversing the IJ’s grant of
 The authenticity of the certification may well be open to 12

question, and that question will require more than speculation to

answer. See Lin v. Gonzales, 445 F.3d 127, 134 (2d Cir. 2006)

(stating that the “conclusion that a petitioner’s documents were

fraudulent must be based on more than speculation and

conjecture”). It appears, however, that numerous undisputedly

authentic documents contradict the certification. However,

authenticity is not for us to address in the first instance.

39

asylum underscores the potential importance of the document,

because that decision faulted Huang for failing to produce

“individualized evidence showing that [she] has reason to fear

being singled out for persecution.” (R. at 5.) Thus, at least on

its face, the certification appears to provide precisely the type of

evidence that might alter the BIA’s calculus when reviewing

Huang’s petition. If authentic, the certification would thus 12

constitute new, material evidence that birth-control authorities

in the city where Huang’s family resides may target her for

sterilization, if she returns to the jurisdiction within their

enforcement authority. The BIA’s dismissive treatment of the

certification was inappropriate. See In re J-S-, 24 I. & N. Dec.

520, 539 (Att’y Gen. 2008) (indicating that asylum is available

to individuals who have either been sterilized “or specifically

threatened with such measures” (citation omitted)); accord Shao

v. Mukasey, 546 F.3d 138, 156 (2d Cir. 2008) (observing that

“some Chinese nationals with two or more children might be

able to demonstrate a well-founded fear of future forced

sterilization based on general population control policies without

any evidence of past persecution or threats of persecution to

themselves as individuals”). 
40

Accordingly, we will vacate the BIA’s denial of the

motion to remand with respect to the certification and will

instruct the BIA to reconsider the motion as to that evidence.

We express no opinion regarding the merit of the motion.

IV. Conclusion

We will vacate the BIA’s order of removal and remand

Huang’s asylum petition to the BIA for consideration in

accordance with this opinion. When considering the petition on

remand, the BIA must also evaluate whether to reopen the

record to permit further consideration of the purported

certification from Fuzhou family-planning authorities indicating

that Huang will be sterilized if she returns to China.