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In re C-C-, Respondent 

Decided March 23, 2006 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

An alien seeking to reopen removal proceedings based on a claim that the birth of a 

second child in the United States will result in the alien’s forced sterilization in China 

cannot establish prima facie eligibility for relief where the evidence submitted with the 

motion and the relevant country conditions reports do not indicate that Chinese nationals 

returning to that country with foreign-born children have been subjected to forced 

sterilization in the alien’s home province. Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004), 

distinguished. 

FOR RESPONDENT: Peter D. Lobel, Esquire, New York, New York 

BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members. 

PAULEY, Board Member: 

This case was last before us on April 29, 2005, when we dismissed the 

respondent’s appeal from an Immigration Judge’s denial of her applications 

for asylum and withholding of removal under sections 208 and 241(b)(3) of 

the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3) (2000), 

and for 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”), pursuant to 

8 C.F.R. § 1208.16(c) (2005). On July 25, 2005, the respondent, a native and 

citizen of China, filed a motion to reopen based on the birth of her second 

child, who was born in the United States.1 Inasmuch as the respondent’s 

motion was filed within 90 days of our April 29, 2005, decision, we find that 

1

 The respondent’s first child, a daughter, was born in China and is in that country with the 

respondent’s mother. We note that the respondent did not indicate whether she intends to 

take her United States citizen child to China if she is required to return to that country, 

although we will assume such an intention for purposes of adjudicating the motion.

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the motion is timely filed. See 8 C.F.R. § 1003.2(c)(2) (2005). The motion 

to reopen will be denied. 

In order for a motion to reopen to be granted, the respondent must establish 

prima facie eligibility for relief. See Matter of Coelho, 20 I&N Dec. 464, 472 

(BIA 1992). The United States Court of Appeals for the Second Circuit has 

stated that a showing of prima facie eligibility for relief is made when there 

is “‘a realistic chance’” that the alien will be able to establish eligibility for 

relief. Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (quoting Guo 

v. Ashcroft, 386 F.3d 556, 563-64 (3d Cir. 2004)). In her timely motion, the 

respondent requests reopening based on the birth of her second child and her 

assertion that she will be sterilized if she returns to China.2

 The respondent 

contends that we should reopen the proceedings in light of Guo v. Ashcroft, 

supra. However, that decision of the Third Circuit is not binding case law in 

the Second Circuit, in whose jurisdiction this case lies. Moreover, we find 

that Guo v. Ashcroft is distinguishable from the instant case. 

The alien in Guo v. Ashcroft, supra, had two children who were born in the 

United States about a year and a half apart. The record reflects that the 

respondent’s first child was born in 1998 and her second child was born more 

than 6 years later in 2005. This age differential is significant because it bears 

on the objective reasonableness of the respondent’s fear that she will be found 

to be in violation of China’s population control policy and will be subjected 

to forced sterilization. China’s population control policy generally allows 

individuals to seek permission to have a second child after a 4-year period. 

See Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, 

China Country Reports on Human Rights Practices - 2005 (Mar. 8, 2006), 

available at http://www.state.gov/g/drl/rls/hrrpt/2005/61605.htm [hereinafter 

2005 Country Reports]; see also Committees on Foreign Relations and 

International Relations, Country Reports on Human Rights Practices for 2004 

682, 694 (Joint Comm. Print 2005) [hereinafter 2004 Country Reports].

Because the respondent’s children were born more than 6 years apart, her 

situation is clearly different from that of the alien in Guo v. Ashcroft, 

notwithstanding that she has not received permission for a second child. 

The Third Circuit found in Guo v. Ashcroft, supra, at 565, that an affidavit 

by a retired demographer, Dr. John Aird, who is recently deceased, was 

sufficient to establish a prima facie case for reopening, noting that the 

affidavit was in large part devoted to discrediting the Department of State’s 

April 1998 Profile on China. See Bureau of Democracy, Human Rights and 

2 Cf. Wang v. BIA, 437 F.3d 270 (2d Cir. 2006) (affirming the Board’s denial of an untimely 

motion to reopen based on the birth of United States citizen children during a 4-year period 

of unlawful presence after the alien was ordered removed). 

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Labor, U.S. Dep’t of State, China: Profile of Asylum Claims and Country 

Conditions (Apr. 1998). The respondent has also submitted an affidavit from 

Dr. Aird with her motion to reopen. For the following reasons, however, we 

find that the affidavit does not establish the prima facie showing of eligibility 

for asylum that is required for reopening. 

We first observe that Dr. Aird’s affidavit is not based on personal 

knowledge of conditions in China, but rather on a review of documents 

concerning events and practices in that country. In that regard, the affidavit 

provides only generalized statements that Chinese citizens who entered the 

United States illegally would be subject to the same punishments that apply 

to Chinese couples who violate the family planning laws in China. No 

example of a woman being sterilized because she returned to China with a 

child born abroad is cited in the affidavit. Furthermore, the affidavit does not 

provide any specific evidence of forced sterilization in the case of an alien 

with two children returning to the Zhejiang province, where the respondent 

resided. 

The affidavit by Dr. Aird mainly cites information from the 1980s and 1990s 

to support the conclusion that the respondent would be forcibly sterilized upon 

returning to China because of her foreign-born child. For example, the 

affidavit refers to an incident in 1988 when a Chinese couple living abroad 

asked for permission to give birth to a second child and was told by family 

planning officials that their unauthorized child could jeopardize their factory’s 

plans for expansion and result in punishment to the workforce. The affidavit 

also includes a citation to an exchange of official correspondence between the 

Fuzhou municipal family planning authorities and the Fujian provincial family 

planning authorities as to what should be done about a couple who had 

returned to China with a second child born in the United States without 

permission. According to the affidavit, the couple was told that they were 

subject to sanctions and penalties applied under the Fujian provincial family 

planning regulations. However, the affidavit contains no specific information 

on the application of the family planning policy to Chinese citizens returning 

to the Zhejiang province with children born abroad. 

The Aird affidavit only briefly discusses the 2004 Profile of Asylum Claims 

and Country Conditions as it relates to citizens returning to China with 

foreign-born children. See Bureau of Democracy, Human Rights and Labor, 

U.S. Dep’t of State, China: Profile of Asylum Claims and Country Conditions 

26 (June 2004) [hereinafter 2004 Profile]. The affidavit takes issue with the 

statement in the 2004 Profile that American diplomats are unaware of any 

cases in which returnees from the United States were forced to undergo 

sterilization upon their return. We note, however, that this statement is 

consistent with reports on China’s population control policy from other 

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governments.3 Moreover, although the affidavit claims that forced surgeries 

occur, again, it contains no evidence that returnees have been sterilized. 

We also note that the latest documents on country conditions issued by the 

State Department conflict with the views of Dr. Aird.4 See Bureau of 

Democracy, Human Rights and Labor, U.S. Dep’t of State, China: Profile of 

Asylum Claims and Country Conditions 28 (Oct. 2005) [hereinafter 2005 

Profile]. The 2005 Profile states that it is now national policy that no action 

will be taken against students where both parents resided overseas for at least 

a year and have two children when they return to China. Furthermore, 

children living permanently overseas are not counted for birth planning 

purposes when their parents return to China. 

According to the 2005 Profile, “Generally, unless one of the parents is an 

‘overseas Chinese’ (i.e. has residency rights in another country), a family with 

a U.S.-born child or children receives no special treatment under family 

3 In October 2005, the United Kingdom’s Home Office published a country of origin report 

regarding China, which was updated in November 2005. See United Kingdom Home Office 

Science and Research Group, Country of Origin Information Service, China-Country of 

Origin Report (2005), http://www.homeoffice.gov.uk/rds/pdfs05/china_091105.doc. The 

report does not list any instances of forced sterilizations of Chinese citizens who were 

returning to China with a child born abroad. See id. at 123-24. 

Furthermore, a country of origin research report by the Research Directorate of the 

Immigration and Refugee Board of Canada provides that “[i]nformation on penalties faced 

by couples returning to China from overseas who are in violation of family planning 

regulations was scarce among the sources consulted by the Research Directorate other than 

provincial family planning regulations available to the Directorate in English.” Immigration 

and Refugee Board of Canada, Research Directorate, China: Penalties faced by couples 

returning from overseas who are in violation of family planning regulations (2001-2005) 

(2005), http://www.irb-cisr.gc.ca/en/research/ndp/ref/?action=view&doc=chn100385e. The 

report indicates that 2002 Zhejiang Province Population and Family Planning Regulations 

provide that “[w]here one spouse is an alien, a compatriot from Hong Kong, Macao or 

Taiwan, or an overseas Chinese, returned overseas Chinese or Chinese studying abroad, 

relevant State regulations shall be followed in the implementation of birth policies.” Id. 

The report further provides that the Zhejiang regulations stipulate that “[o]ne child for each 

couple is advocated. Where the provisions in these Regulations are satisfied, a couple can 

request the birth of a second child after necessary approval. Birth of a child is strictly 

prohibited in the case where the couple does not qualify under law.” Id. However, the 

report also indicates that information on the enforcement of provincial family planning 

regulations is scarce and that implementation of family planning regulations “varies from 

region to region.” Id. We take administrative notice of these reports from the 

United Kingdom and Canada. See 8 C.F.R. § 1003.1(d)(3)(iv) (2005); see also Yang v. 

McElroy, 277 F.3d 158, 163 n.4 (2d Cir. 2002). 

We will take administrative notice of these reports. See 8 C.F.R. § 1003.1(d)(3)(iv).

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planning laws.” Id. at 28. Nevertheless, the 2005 Profile indicates that 

American diplomats in China are unaware of “any cases in which returnees 

from the United States were forced to undergo sterilization procedures on 

their return.” Id. Lastly, the 2005 Profile notes that it may be difficult for 

children without a Chinese household registration to enroll in public school. 

Thus, although the reports indicate that some economic sanctions might be 

imposed on a woman returning to China with two children, they contradict the 

respondent’s claim that there is a “realistic chance” that she would be forcibly 

sterilized. Poradisova v. Gonzalez, supra, at 78. 

The Department of State’s country reports on China do not discuss the 

application of China’s family planning policy to women returning to that 

country with children born abroad. See 2005 Country Reports. However, 

they do provide that China’s population control policy relies on “education, 

propaganda, and economic incentives, as well as more coercive measures such 

as the threat of job loss or demotion and social compensation fees.” 2005 

Country Reports; see also 2004 Country Reports, supra, at 695. They also 

observed that central government policy “formally prohibits the use of 

physical coercion to compel persons to submit to abortion or sterilization.” 

2005 Country Reports; see also 2004 Country Reports, supra, at 696. The 

2005 Country Reports noted that some reports of physical coercion to meet 

birth targets continued, although the respondent’s province was not mentioned 

among those which impose stringent measures to deal with out-of-plan 

pregnancies. 

Having considered all of the relevant evidence, we find that the State 

Department reports are more persuasive than the Aird affidavit in determining 

the chances that the respondent will be sterilized if she returns to China. See 

Wang v. BIA, 437 F.3d 270, 276 (2d. Cir. 2006) (noting that “a balancing of 

the 2004 Country Report against the Aird affidavit’s criticism of that 

report . . . would lead to the conclusion . . . that [the alien] has not shown he 

would face anything more than economic sanctions if returned to China”). 

Lastly, we note that the Second Circuit recently affirmed our unpublished 

decision finding that an alien with two children born in the United States 

failed to establish a well-founded fear of future persecution, although we 

acknowledge that the alien in that case did not introduce an affidavit from Dr. 

Aird or comparable evidence. See Huang v. United States INS, 421 F.3d 125, 

128-29 (2d Cir. 2005) (noting that the Board permissibly relied on a country 

conditions report which indicated that there were no reports of a national 

policy with respect to foreign-born children and that couples returning to 

China with more children than they would have been permitted at home are 

“at worst, given modest fines”); see also Guan Shan Liao v. United States 

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Dep’t of Justice, 293 F.3d 61, 71-72 (2d Cir. 2002) (holding that background 

evidence concerning the birth control policy in the alien’s home province did 

not support a well-founded fear that either he or his wife would be sterilized). 

Based on the foregoing considerations, we find that the respondent has not 

established prima facie eligibility for asylum, withholding of removal, or 

protection under the Convention Against Torture. Accordingly, her motion 

to reopen will be denied. 

ORDER: The motion to reopen is denied. 

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