NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 08-4851 & 09-3427

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XIU HUA YU,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent 

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A073-046-384)

Immigration Judge: Honorable Rosalind Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 15, 2010

Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed November 24, 2010)

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OPINION

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PER CURIAM

Xiu Hua Yu petitions for review of two decisions of the Board of Immigration

Appeals (BIA). For the reasons below, we will grant the petition for review in No. 08-
2

4851 and deny the petition for review in No. 09-3427.

Yu, a native of China, entered the United States in 1996. In August 2004, she was 

charged as removable as an alien present in the United States without being admitted or 

paroled. She conceded removability and applied for asylum and withholding of removal. 

Yu argued that she would be persecuted in China under the family planning policy 

because she has four children and desires to have a fifth child. The Immigration Judge 

(IJ) denied the asylum application as untimely but granted withholding of removal. The 

IJ concluded that there was a clear probability that Yu would be sterilized if she returned 

to China with four children. She discounted the cases relied on by the government to 

oppose Yu‟s application because the cases involved Chinese citizens who had given birth 

to two children in the United States. Because it was the Year of the Golden Pig, a year 

considered lucky in Chinese culture, the IJ found that there was evidence that the 

resulting increased births would lead to increased enforcement of the family planning 

policy. The IJ also referred to newspaper articles describing protests of the family 

planning policy and the resulting government crackdown. The government appealed the 

IJ‟s decision to the BIA.

The BIA reversed the IJ‟s grant of relief. Citing Matter of J-W-S-, 24 I. & N. Dec. 

185 (BIA 2007), and Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), the BIA 

concluded that there was insufficient evidence that China sterilizes its citizens for having 

children in other countries and that Yu‟s fear was speculative. It concluded that the IJ 
3

had wrongly focused on the number of children Yu had and not that they were born 

outside of China. Likewise, the BIA distinguished the sterilizations of Yu‟s mother and 

mother-in-law from Yu‟s situation because Yu‟s children were not born in China. The 

BIA determined that there was no evidence of Yu‟s “other resistance” to the family 

planning policy. Yu filed a timely petition for review which was docketed at No. 08-

4851. 

Yu also filed a motion to reopen and to reconsider with the BIA. She also argued 

that her stated opposition to sterilization and her desire to have a fifth child were 

sufficient to establish her resistance to China‟s family planning policy and eligibility for 

withholding. She asserted that she would be subject to economic persecution if returned 

to China. 

The BIA denied the motion. The BIA concluded that her statement of opposition 

to the family planning policy was not sufficient to support eligibility for refugee status. 

The BIA also determined that Yu had not shown that she would be subject to economic 

persecution. Yu filed a petition for review from the BIA‟s denial of the motion to reopen, 

which was docketed at No. 09-3427 and consolidated with No. 08-4851. 

Withholding of removal

We have jurisdiction over the denial of Yu‟s claims for withholding of removal 

under 8 U.S.C. § 1252. To establish eligibility for withholding of removal, Yu needed to 

demonstrate that it was more likely than not that her life would be threatened in China on 
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account of the family planning policy. Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir. 

2005); 8 U.S.C. § 1231(b)(3)(A). We review the factual findings on which the BIA 

relied under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d 

Cir. 2003) (en banc). These findings are considered conclusive unless “any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). 

We exercise de novo review over the BIA‟s legal decisions. Toussaint v. Attorney 

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

Yu argues that the BIA improperly reversed the IJ‟s grant of withholding of 

removal using de novo review instead of the clearly erroneous standard. We recently 

held that “an IJ‟s forecasting of future events constitutes fact-finding that the BIA must 

review under the clearly erroneous standard.” Huang v. Att‟y Gen., 620 F.3d 372, 382-

83 (3d Cir. 2010). Thus, the IJ‟s determination of the likelihood that Yu will be sterilized 

if removed to China was subject to review by the BIA for clear error. The BIA never 

explained what standard it was using to review the IJ‟s fact-finding. It stated that it found 

that “there is insufficient evidence that the respondent‟s country sterilizes its citizens for 

having children in foreign nations.” Supp. A.R. at 27 citing Matter of J-W-S-, 24 I. & N. 

Dec. at 191; Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008), and Matter of S-Y-G-, 24 

I. & N. Dec. 247.1 Our review of the BIA‟s decision is hampered by the lack of clarity 

 

 

1

 In Matter of J-W-S-, the BIA concluded that China did not have a policy of 

requiring the forced sterilization of a parent who returns with a second child born outside 

of China. In Matter of S-Y-G-, the BIA determined that the record did not support a 
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surrounding the standard of review it used. “If [the BIA] wishes to reverse factual 

findings it believes are not „established by evidence entered into the record,‟ . . . it needs 

to apply the clearly erroneous standard in such a way that reviewing courts understand 

that standard to be in play.” Kaplun v. Att‟y Gen., 602 F.3d 260, 272 n.10 (3d Cir. 2010) 

(internal citation omitted). Accordingly, we will grant the petition for review in No. 08-

4851, vacate the BIA‟s November 25, 2008, decision, and remand the matter for the BIA 

to apply the correct standard of review. We express no opinion as to the merits of Yu‟s 

claims.

Motion to reopen and reconsider

We review the denial of a motion to reopen for an abuse of discretion. Filja v. 

Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, we may reverse the 

BIA‟s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 

290 F.3d 166, 174 (3d Cir. 2002). Because the BIA did not review any factual findings 

by the IJ in its resolution of the motion to reopen and reconsider, the confusion over the 

standard of review used by the BIA in its November 25, 2008, decision does not affect 

our review of the BIA‟s denial of the motion to reopen and reconsider.2

Resistance

 

finding that forcible sterilizations would be required in Fujian province after the birth of a 

second child. It noted that documents indicated that sanctions for violating the family 

planning policy would likely be economic.

2 When considering a motion to reopen, the BIA has the responsibility of 

considering the facts in the first instance. 8 C.F.R. § 1003.2(c)(3)(ii).
6

Yu argued in her motion to reopen that she showed “other resistance” to the 

Chinese family planning policy. She contended that she clearly stated that she was 

opposed to the policy, would have a fifth child if returned to China, and would oppose 

being sterilized. She asserted that this statement of opposition is sufficient to 

demonstrate “other resistance.” The BIA concluded that this was not sufficient, and we 

agree. The BIA did not abuse its discretion in determining that Yu did not show that it is 

more likely than not that she would be persecuted in China for her “other resistance” to 

the family planning policy.

Economic Sanctions

Yu also argued in her motion to reopen that she would be subject to economic 

persecution if removed to China. She relied on our decision in Li v. Attorney General, 

400 F.3d 157 (3d Cir. 2005). In Li, we held that “the deliberate imposition of severe 

economic disadvantage which threatens a petitioner‟s life or freedom may constitute 

persecution.” Li, 400 F.3d at 168. However, the BIA‟s function is to review the existing 

record; Clifton v. Holder, 598 F.3d 486, 492 (8th Cir. 2010); 8 C.F.R. § 1003.1(d)(3)(iv); 

and we, likewise, may decide the petition only on the administrative record on which the 

order of removal was based. 8 U.S.C. § 1252(b)(4)(A). Thus, evidence relied on in Li or 

other cases, but not introduced in Yu‟s administrative proceedings, cannot support Yu‟s 

claims. 

Yu argues that the BIA failed to address the evidence in the record in the 2007 
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Profile that describes the economic consequences for violating the family planning 

policy. However, she does not address this evidence sufficiently herself. Article 39 of 

China‟s Family Planning Law, attached as an appendix to the 2007 Profile, states that 

violators of the family planning policy will be fined in the amount of “one year‟s 

disposable income for a county (city, district) town-dweller or the average net income of 

a farmer.” A.R. at 177. For a violator with two additional children, the amount is four to 

six times that amount. Yu has not pointed to any evidence in the record as to what base 

income would be used to calculate the fines in her county, city, or district in China. 

Moreover, there is nothing in the record concerning Yu‟s or her husband‟s current 

financial situation with respect to her ability to pay any fine that might be imposed in 

China. Yu also argues that she would be unable to get any kind of job but does not point 

to any evidence in the record to support this. We conclude that substantial evidence 

supports the BIA‟s finding that Yu had not shown that it is more likely than not that she 

would suffer economic persecution if removed to China.

For the above reasons, we will grant the petition in No. 08-4951, vacate the BIA‟s 

November 25, 2008, decision, and remand the matter for the BIA to review the IJ‟s factfinding under the clearly erroneous standard. We will deny the petition in No. 09-3427.