NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 09-1623, 09-4309, 10-2742

___________

JING XIU ZHAO; QIAN ZHUO LIN,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petitions for Review of Orders of the

Board of Immigration Appeals

(Agency Nos. A077 281 556 and A093 397 476)

Immigration Judge: Honorable Henry S. Dogin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 14, 2011

Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges

(Opinion filed March 25, 2011 )

___________

OPINION
SLOVITER, Circuit Judge.

Jing Zhao and her husband Qian Lin (collectively “petitioners”), natives and 

citizens of China, Fujian Province, petition for review of the decision of the Board of 

Immigration Appeals (“BIA”) dismissing their appeal from the decision of the 

Immigration Judge (“IJ”) denying their applications for relief from removal. Zhao and 

Lin also petition for review of two BIA decisions denying motions to reopen their 

immigration proceedings. Their petitions raise the issue that we recently addressed in 

Chen v. Att’y Gen., --- F.3d ----, No. 09-3459, 2011 WL 923353 (3d Cir. Mar. 18, 2011), 

concerning asylum for the Chinese parents of American-born children whose births 

exceed that permitted under China‟s population control policies. As in Chen, we will

deny Zhao and Lin‟s petitions for review.

Zhao came to the United States in 1999 from Fujian Province, China. Shortly 

after her arrival, she was issued a notice to appear charging that she was subject to 

removal for entering the United States without a valid travel document. In 2001, the IJ 

found Zhao removable and denied her applications for asylum, withholding of removal, 

and relief under the Convention Against Torture. The IJ found Zhao‟s claim that she had 

suffered a forced abortion in China not credible. The BIA affirmed the IJ‟s decision and 

denied Zhao‟s subsequent motion to reopen her proceedings.

In 2004, Zhao married Lin, who had come to the United States in 1996, also from 

Fujian Province. They had two children. In 2006, the BIA granted a second motion to 

reopen filed by Zhao, in which she claimed that she would be subjected to China‟s 
3

coercive family planning policies if removed to China on account of the births of her two 

children. The BIA remanded the matter to the IJ. Lin received a notice to appear in 

2007, charging that he was subject to removal for entering the United States without 

inspection. Lin‟s removal proceedings were consolidated with Zhao‟s reopened 

proceedings.

The IJ found Lin removable and denied the applications of Lin and Zhao for relief 

from removal, finding their case substantially similar to In re J-W-S-, 24 I. & N. Dec. 185 

(BIA 2007), and stating that there was no evidence that they would face sterilization if 

removed.1 In its decision issued February 17, 2009, the BIA agreed with the IJ that Lin 

and Zhao had not shown an objectively reasonable fear of future persecution. The BIA 

explained that, even if it assumed that Lin and Zhao would be in violation of Fujian 

Province‟s family planning policy based on the births of their two children, their 

evidence, and the documents assessed in the BIA‟s published decisions, did not show “a 

reasonable chance of forcible sterilization.” In re Zhao, Nos. A77-281-556, A93-397-

476, at 2 (BIA Dec. Feb. 17, 2009). Noting its decisions in In re J-W-S-, 24 I. & N. Dec. 

185, and In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), the BIA found that the evidence 

did not establish a “uniform policy regarding the implementation of the population

 

1

 The IJ incorrectly stated in his decision that this court had remanded the matter. As 

noted above, the BIA remanded the matter.
4

control law with respect to children born outside of China.”

2

 Id. The BIA further found 

no credible, individualized evidence showing that Lin or Zhao had reason to fear 

persecution.

Lin and Zhao then moved to reopen their proceedings, submitting additional 

documentation in support of their claim. The BIA denied the motion to reopen on 

October 27, 2009, noting that it had considered many of the same documents in In re S-YG- and other precedential decisions. In re Zhao, Nos. A77-281-556, A93-397-476, at 1-3 

(BIA Dec. Oct. 27, 2009). The BIA explained that the documents reflect that China 

regards a child of Chinese nationals who have not permanently settled in another country 

as a Chinese national, but the documents do not indicate that the parents will face forcible 

sterilization. The BIA noted that a document purporting to be a certificate from the 

Guanban Village Committee, which stated that Zhao would face sterilization if she 

returned, had not been authenticated in any manner. The BIA also rejected an argument 

that the 2007 Department of State Asylum Profile for China, relied upon in In re J-W-Sand In re S-Y-G-, was based on a translation error. Finally, the BIA ruled that Lin and 

Zhao had not shown that they would be subject to economic harm amounting to 

persecution if removed to China.

 

2

 In In re J-W-S-, 24 I. & N. Dec. at 188, the BIA held that an alien from Fujian Province 

did not establish a well-founded fear of future persecution based on the births of his two 

children in the United States. In In re S-Y-G-, 24 I. & N. Dec. at 247, the BIA denied a 

motion to reopen in which an alien from Fujian Province claimed she would be 

persecuted on account of having given birth to a second child in the United States.
5

Lin and Zhao then filed a motion to reconsider and another motion to reopen, 

which the BIA denied on May 19, 2010. The BIA concluded Lin and Zhao had not 

shown a change in circumstances or country conditions that would allow them to be 

exempt from the time and number limitations applicable to motions to reopen, nor had 

they shown an error in fact or law warranting reconsideration of the BIA‟s earlier 

decision. The BIA rejected arguments that it erred in requiring authentication of the 

letter from the Guanban Village Committee and in giving the letter little weight. The 

BIA noted that Lin and Zhao could have authenticated the document but did not do so in 

any manner. The BIA also stated that most of the documents submitted in support of the 

motion had either been previously submitted or were previously available.

The BIA further rejected Lin and Zhao‟s contention that reopening was warranted 

because it had granted relief in another case based on the same documents that they had 

submitted. The BIA explained that the order petitioners relied upon involved a township 

that neither Lin nor Zhao were from and that they had not shown that regulations from 

other municipalities applied to them. Finally, the BIA found no basis to reconsider the 

claims that the 2007 Asylum Profile was based on a faulty translation or that Zhao and 

Lin will suffer economic harm amounting to persecution if removed.

We have jurisdiction over the petitions for review pursuant to 8 U.S.C. § 1252(a).3 

 

3

 The petition for review of the BIA‟s February 17, 2009, order was docketed at No. 09-

1623. The petition for review of the BIA‟s October 27, 2009, order was docketed at No. 

09-4309. The petition for review of the BIA‟s May 19, 2010, order was docketed at No. 

10-2742. The three petitions were consolidated for our review and decision.
6

The Attorney General correctly notes that the evidence Lin and Zhao rely upon in their 

opening brief was submitted in support of their first motion to reopen the proceedings. 

Lin and Zhao do not argue that the BIA‟s February 17, 2009, decision dismissing their 

appeal from the IJ‟s denial of their applications for relief from removal is not supported 

by substantial evidence. Absent a discussion as to how the BIA erred in its February 17, 

2009, order, we will not consider that decision. See United States v. DeMichael, 461 

F.3d 414, 417 (3d Cir. 2006) (finding issue not raised in opening brief waived). Thus, the 

first question before us is whether the BIA abused its discretion in denying Lin and 

Zhao‟s motion to reopen on October 27, 2009. See Huang v. Att’y Gen., 620 F.3d 372, 

389 (3d Cir. 2010) (noting standard of review).

In the precedential opinion of this court in Chen, 2011 WL 923353, at *2, we 

referred to the BIA‟s opinion in In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010), 

which we stated “contains a comprehensive discussion that persuasively addresses many 

of the issues before us.” We believe that this BIA opinion is now the starting point for 

any forthcoming decisions on the issue of children of Chinese nationals born in this 

country.

Lin and Zhao argue in their brief that they demonstrated that they will face 

sterilization or economic persecution on account of having two children in violation of 

China‟s family planning policies. They point to evidence supporting the conclusion that 

children born abroad, whose parents are both Chinese nationals who have not settled in 

another country, are regarded as Chinese nationals. The BIA here acknowledged that the 
7

documents Lin and Zhao submitted reflect this conclusion,4but that this was not 

dispositive of whether petitioners would face persecution. We agree.

Lin and Zhao rely on documents from the internet in which Fujian Province family 

planning committees answered individual inquiries about the family planning policy, 

telling two individuals that the policy requires sterilization. Although the BIA did not 

discuss these documents, we find them insufficient to show that the BIA abused its 

discretion in denying reopening because the documents do not reflect a policy of forced 

sterilization. See In re S-Y-G-, 24 I. & N. Dec. at 257 (noting distinction between 

documents reflecting a policy of mandatory sterilization and mandatory forcible 

sterilizations and explaining that refugee status extends only to latter); see In re H-L-H-

& Z-Y-Z-, 25 I. & N. Dec. at 214 (noting discussion in 2007 Profile of Asylum Claims 

and Country Conditions that there have been no cases of forced abortion/sterilization in 

Fujian Province in ten years). Lin and Zhao also rely on the letter from the Guanban 

Village Committee stating that Zhao must report for sterilization if she returns to China. 

The BIA did not err in discounting this document, which was not authenticated. See

Chen, 2011 WL 923353, at *4 (concluding BIA properly discounted unauthenticated 

document).

 

4

 In arguing that their children will be regarded as Chinese nationals, Lin and Zhao 

erroneously assert that the BIA decided that they should not register their children in the 

applicable household registry, which provides access to public services in China.
8

Lin and Zhao further assert that the 2008 Congressional-Executive Commission on 

China Annual Report (“Report”) reflects that coercive measures are used to enforce 

population planning policies in China. Many of the citations to the report contained in 

their brief, however, are erroneous. Statements Lin and Zhao contend are reflected in the 

Report are in fact found in the 2004 hearing testimony of John Aird. The BIA concluded 

in In re J-W-S, 24 I. & N. Dec. at 189, 192, that State Department reports were more 

persuasive than affidavits by Aird, who did not have personal knowledge of conditions in 

China. See also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. at 213 (State Department reports 

are “usually the best source of information on conditions in foreign nations”). Lin and 

Zhao are correct that the Report states that coercive measures are used in the enforcement 

of population planning policies, but the Report also states that implementation tends to 

vary across localities. Fujian Province is noted as one of many provinces authorizing 

officials “to take „remedial measures‟ to deal with „unlawful‟ births,” but further

information is not provided. App. at 318. This evidence fails to show that the BIA 

abused its discretion in denying reopening.

Finally, Lin and Zhao argue that they established that they would suffer economic 

harm amounting to persecution if removed. They contend that fines for violating family 

planning policies are calculated in terms of multiples of a couple‟s annual income. In his 

brief on appeal, however, the Attorney General correctly stated that Lin and Zhao did not 

show how fines imposed for violations of family planning policies would impact them 

personally. We thus conclude that Lin and Zhao have not shown that the BIA abused its 
9

discretion in denying their motion to reopen. See Chen, 2011 WL 923353, at *4 (finding 

substantial evidence supported BIA‟s decision that petitioners failed to demonstrate 

economic persecution where petitioners failed to provide evidence of individual 

circumstances).

We also conclude that the BIA‟s order dated May 19, 2010, denying the motion of 

Lin and Zhao for reconsideration and their latest motion to reopen, was not an abuse of 

discretion. Lin and Zhao argue in their supplemental brief that the BIA erred in 

dismissing the letter from the Guanban Village Committee because Zhao had submitted 

an affidavit authenticating the letter. Zhao‟s affidavit, however, states only that she 

inquired about the family planning policy and “was shocked to learn from the village 

committee letter, which [she] received it [sic] on June 5, 2006” that she will be a 

“sterilization target.” App. at 38. This statement does little to authenticate the letter, 

which was prepared on June 5, 2006. Zhao does not explain how she received the letter 

from her village in China on the same day on which it was prepared. To the extent Lin 

and Zhao further contend that the BIA erred in failing to afford them an evidentiary 

hearing, they have not shown that a hearing was warranted.

Lin and Zhao also argue that the BIA erred in refusing to reopen their proceedings 

based on their submission of new evidence regarding family planning policies in 

townships and cities within Fujian Province. As noted above, the BIA acknowledged that 

it had granted a motion to reopen in another case involving policies in Shou Zhan 

Township, but found that relief was not warranted here because Lin and Zhao are not 
10

from that township. Absent a showing of how the evidence applied to them, we find no 

abuse of discretion.

Lin and Zhao also reassert in their supplemental brief that they will be subjected to 

economic persecution if removed but, as noted above, they have not made any showing 

as to how fines imposed for violations of family planning policies would impact them. 

Finally, Lin and Zhao contend that the BIA abused its discretion by not crediting a report 

criticizing the 2007 Department of State Asylum Profile. We disagree. The BIA found 

no evidence showing that the Department of State had retracted the conclusions in the 

2007 Profile and was not persuaded that the critical report was an expert opinion. See 

also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. at 213-216 (discussing 2007 Profile at 

length).

Accordingly, we will deny the petitions for review.