Z-Z-O

Cite as 26 I&N Dec. 586 (BIA 2015) Interim Decision #3838

Matter of Z-Z-O-, Respondent

Decided May 26, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

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

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

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

(BIA 2008), overruled.

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

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

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

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

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

MULLANE, Board Member:

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

respondent removable and denied his applications for asylum, withholding

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

Cruel, Inhuman or Degrading Treatment or Punishment, adopted and

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

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

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

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

will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

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

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

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

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

1

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

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

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

25 I&N Dec. 657, 658 n.2 (BIA 2012).

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Citizenship and Immigration Services. The case was subsequently referred

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

hearing before the Immigration Judge, the respondent admitted that he

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

removable.

Regarding his application for asylum, the respondent testified that he

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

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

was approximately 1 month pregnant.

On November 9, 2006, family planning officials visited the

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

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

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

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

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

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

According to the respondent, tests conducted at the hospital revealed

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

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

miscarried the next morning.

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

planning director accompanied his wife to the hospital to have an

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

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

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

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

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

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

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

The Immigration Judge determined that the respondent did not establish

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

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

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

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

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

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

forced sterilization.”

II. ANALYSIS

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

determination of credibility, under the “clearly erroneous” standard.

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8 C.F.R. § 1003.1(d)(3)(i) (2014). We review de novo questions of law,

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

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

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

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

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

The Immigration Judge raised concerns regarding the reliability and

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

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

an adverse credibility finding and determined that the respondent was

credible under the totality of the circumstances.

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

his determination that the respondent did not satisfy the burden of

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

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

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

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

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

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

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

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

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

Immigration Judge’s determination that the respondent did not demonstrate

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

persecution in China on account of a protected ground.

A. Past Persecution

We agree with the Immigration Judge that the respondent did not

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

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

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

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

miscarriage was an undeniably tragic event, it does not constitute

persecution of the respondent on account of a protected ground.

The Immigration Judge found no indication that officials intended for

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

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

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

Chinese Government for any actual or perceived acts of resistance the

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

See Matter of J-S-, 24 I&N Dec. 520, 535 (A.G. 2008) (stating that a

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spouse who has not been subjected to forced sterilization must demonstrate

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

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

totality of the circumstances that the applicant established persecution

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

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

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

control program”).

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

economic sanctions rising to the level of persecution has not been

specifically disputed. In addition, the Immigration Judge properly found

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

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

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

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

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

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

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

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

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

(9th Cir. 1997))).

The Immigration Judge correctly concluded that the respondent’s

experiences in China, when considered either individually or cumulatively,

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

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

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

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

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

B. Standard of Review for Predictive Findings of Fact

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

Immigration Judge findings regarding the possibility of future events in two

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

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

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

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

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

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

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

2

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

specifically asked us to address this issue.

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we do not consider a prediction of the probability of future torture to be a

ruling of ‘fact.’”

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

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

addressed the standard of review that should be applied to Immigration

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

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

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

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

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

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

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

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

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

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

2010).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

However, whether an asylum applicant has established an

objectively reasonable fear of persecution based on the events that the

3

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

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

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

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

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

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

Immigration Judge. Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. at 212−13.

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Immigration Judge found may occur upon the applicant’s return to the

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

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

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

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

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

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

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

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

has not satisfied the burden to establish an objectively reasonable fear

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

that fundamental to the inquiry whether the asylum applicant has a

well-founded of persecution is the factual determination regarding whether

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

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

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

Accordingly, we will accept the underlying factual findings of the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

decision and heightens the need for Immigration Judges to include clear

and complete findings of fact in their decisions”).

C. Well-founded Fear of Persecution

Applying these standards of review, we agree with the Immigration

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

of persecution upon his return to China on account of a statutorily protected

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ground. The Immigration Judge found that after the respondent received

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

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

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

who has remained in China, to forced sterilization.

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

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

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

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

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

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

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

Judge may make reasonable inferences from direct and circumstantial

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

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

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

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

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

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

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

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

unpersuasive.

The Immigration Judge’s factual findings regarding what may have

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

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

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

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

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

not otherwise identified record evidence that the Chinese authorities have

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

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

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

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

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

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

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

reasonable.

III. CONCLUSION

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

fear of future persecution on account of a statutorily protected ground.

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Therefore, the Immigration Judge properly denied his asylum application.

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

593