J-H-S

Cite as 24 I&N Dec. 196 (BIA 2007) Interim Decision #3567

In re J-H-S-, Respondent

Decided June 7, 2007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A person who fathers or gives birth to two or more children in China may qualify as a

refugee if he or she establishes that the births are a violation of family planning policies that

would be punished by local officials in a way that would give rise to a well-founded fear of

persecution.

FOR RESPONDENT: Gary J. Yerman, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Anne Bhargava, Assistant

Chief Counsel

BEFORE: Board Panel: HOLMES, GRANT, and MILLER, Board Members.

HOLMES, Board Member:

In a decision dated February 27, 2003, an Immigration Judge denied the

respondent’s application for asylum, finding that he lacked credibility, failed

to establish that he suffered past persecution on account of his opposition to

family planning policies, and failed to establish a well-founded fear of future

persecution. On June 28, 2004, we affirmed the Immigration Judge’s decision

without opinion.

This case is now before us on remand from the United States Court of

Appeals for the Second Circuit, which rejected the respondent’s challenge to

the Immigration Judge’s adverse credibility determination in its October 12,

2006, order. See Jian Hui Shao v. BIA, 465 F.3d 497 (2d Cir. 2006). The

court remanded the case for us to consider “whether a person who fathers or

gives birth to two or more children in China, in apparent violation of China’s

family planning policies, may qualify on that basis alone as ‘a person who has

a well founded fear that he or she will be forced’ by the Chinese government

‘to abort a pregnancy or to undergo involuntary sterilization’ and may

accordingly qualify as a refugee” under section 101(a)(42) of the Immigration

and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000). Id. at 498. Both parties

have filed additional briefs on remand. On consideration of the Second

Circuit’s mandate and the record in the instant case, we will again affirm the

Immigration Judge’s decision and will dismiss the respondent’s appeal.

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I. FACTUAL AND PROCEDURAL HISTORY

The record reflects that the respondent was born in Fuzhou City in the

Fujian Province of China in January 1972. He married his wife in China on

October 24, 1997. In March 1999, the respondent’s wife gave birth to their

first child, a daughter. The respondent claims that his wife was fitted with an

intrauterine device to prevent further pregnancy, but they paid to have the

device removed in September 2001 and his wife subsequently became

pregnant for the second time.

According to the respondent, his wife missed a regularly-scheduled

gynecological exam in January 2002 because she believed she might be

pregnant. She went into hiding, where she ultimately gave birth to the

couple’s second daughter on September 20, 2002. The respondent claims that

during the time his wife was in hiding, birth control officials arrested him,

detained him for 2 days, and beat him in an attempt to coerce him into

revealing his wife’s hiding place. He states that he refused to reveal the

information and ultimately escaped his holding cell through the help of a

former classmate. Thereafter, the respondent fled to the United States,

arriving in February 2002, and was in this country at the time of the birth of

his second child. He filed an application for asylum in September 2002.

Apart from the facts that the respondent fathered two children in China and

has been present in the United States since February 2002, the respondent’s

claims were found to lack credibility by the Immigration Judge, who

specifically found reason to doubt the veracity of the respondent’s claim that

he had a violent encounter with birth control officials in China. We affirmed

that finding as not clearly erroneous in our decision and it was, in turn,

affirmed by the Second Circuit. See Jian Hui Shao v. BIA, supra, at 500-01.

As a result, nothing in the record indicates that the respondent had any contact

with family planning or other law enforcement authorities in China.

Although the Second Circuit found that the Immigration Judge’s adverse

credibility determination was supported by substantial evidence, the court

recognized the possibility that the respondent could have presented a viable

claim for relief simply by virtue of the undisputed fact that he has fathered two

children in China, a country that places certain restrictions on citizens’ ability

to procreate. Pursuant to the Second Circuit’s order, we must decide whether

“one who fathers two children in violation of China’s family planning policy,

as [the respondent] asserts he has done, may–on that basis alone, without any

need for particularized evidence of past persecution or threats of future

harm–qualify as a ‘refugee’ as defined by the [Act].” Jian Hui Shao v. BIA,

supra, at 501 (emphasis added) (footnote omitted). As we conclude below,

an alien who has established that he or she has had two children in China may

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qualify as a refugee if the evidence presented establishes, on a case-by-case

basis, that the births violated family planning policies in that alien’s local

province, municipality, or other locally-defined area, and that current local

family planning enforcement efforts would give rise to a well-founded fear of

persecution because of the violation.

II. ANALYSIS

A. Family Planning Policies

As an initial matter, we note that the respondent cannot meet his burden of

proving that he suffered past persecution in China, given the fact that he was

found to lack credibility regarding his past interactions with birth control

officials in China. Therefore, the only issue for our consideration on remand

is whether the birth of his two daughters in China gives rise to a well-founded

fear of future persecution. The respondent bears the burden of proving past

persecution, as well as his claim that fathering two daughters in China gives

rise to a well-founded fear of persecution. In this case, because there is no

past persecution, and therefore no rebuttable presumption of a well-founded

fear of future persecution, the respondent must prove that he has a subjectively

genuine and objectively reasonable well-founded fear of persecution. INS v.

Cardoza-Fonseca, 480 U.S. 421 (1987).

Assuming that the respondent has a genuine fear of returning to China, the

starting point for determining whether there is objective evidence supporting

this fear is proof of the details of the family planning policy relevant to each

individual case. Matter of C-C-, 23 I&N Dec. 899 (BIA 2006). Although in

general China’s family planning policy has been termed a “one child” policy,

in practice it is apparent that deviations from the general rule of “one child”

persist. 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].1 In general, China’s 2002 National

Population and Birth Planning Law allows married couples to have one child

as a matter of right and permits many couples to have a second within certain

time frames. See Bureau of Democracy, Human Rights, and Labor, U.S.

Dep’t of State, China: Profile of Asylum Claims and Country Conditions 24

1

We note that this report is cited by the respondent in the brief he submitted on remand.

We have authority to take administrative notice of this report, as well as the more recent

reports released by the United States Department of State. See Yang v. McElroy, 277 F.3d

158, 163 n.4 (2d Cir. 2002); 8 C.F.R. § 1003.1(d)(3)(iv) (2007); see also infra note 3.

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(May 2007) [hereinafter 2007 Profile]; see also Bureau of Democracy, Human

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

Country Conditions 21 (Oct. 2005) [hereinafter 2005 Profile]. Deviations in

implementing this law occur at the provincial, or even village, level. See 2007

Profile, supra, at 23. The 2007 Profile specifically states that the

“implementation of birth planning policy in villages . . . is the responsibility

of local officials.” Id. Moreover, certain geographic and ethnic factors may

trigger exceptions to the “one-child” policy. Chinese living in rural

areas–including parts of Fujian Province, where the respondent’s home is

located–have been authorized to have a second child, particularly where the

first child is female. See 2005 Country Reports, supra. In Anhiu Province,

some 13 categories of married couples (including coal miners, remarried

divorcees, and farm couples) are permitted to have a second child. Id. Ethnic

minorities may also be allowed more than one child. Id.; see also 2007

Profile, supra, at 24.

If an applicant has established the details of the specific “policy” applicable

in his or her case, a related inquiry arises as to whether the facts in the record

establish that the alien violated the policy.2 For example, if an alien

established that no exceptions to the one-child policy applied, the question

becomes whether the alien has established, through credible testimony or

otherwise, that he or she has fathered or given birth to more than one child, in

violation of that policy. This point is particularly relevant to cases in which

an alien claims to have violated family planning policy by having two or more

children in the United States. In Matter of C-C-, supra, at 903, we found that

the alien had not met her burden of proving that giving birth to two United

States citizen children would be viewed by local family planning officials

as a violation of that province’s population control laws. See also Matter of

J-W-S-, 24 I&N Dec. 185 (BIA 2007). But even where, as here, an alien

claims to have fathered (or given birth to) two children in China, the same

initial two-part burden applies. That is, the alien must prove that there was a

policy against such births and that he or she, in fact, violated the policy.

Evidence reflecting a violation of established policy may include birth

certificates for all children born to a couple, or other evidence reflecting their

birth.

Assuming that this burden has been met, the alien must also establish that

the violation of the family planning policy would be punished in the local area

in a way that would give rise to an objective fear of future persecution. Just

2

As discussed below, a demonstrated policy is not itself enough. Many countries have

policies, even laws, that for any number of reasons–lack of resources, ability, or political

will–simply are not meaningfully enforced.

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as exceptions to the so-called “one-child” policy abound, enforcement of the

policy varies greatly, depending on locality. See 2005 Profile, supra. Local

officials’ “personalities, interests, and personal connections . . . often

influence their enforcement of national, provincial, and local laws,

regulations, and policies, including birth planning policies.” 2007 Profile,

supra, at 23. Such disparate influences tend to result in “uneven” enforcement

of national policies. Id. In the past, enforcement efforts in Fujian Province,

where the respondent comes from, were specifically described as “lax” or

“uneven” in published reports and court decisions. See, e.g., Bureau of

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

Asylum Claims and Country Conditions 20, 25 (Apr. 14, 1998) [hereinafter

1998 Profile]; Huang v. U.S. INS, 421 F.3d 125, 128 (2d Cir. 2005).

In a recent report on the subject, the State Department described the

enforcement efforts as follows:

Those who violated the child limit policy by having an unapproved child or helping

another to do so faced disciplinary measures such as job loss or demotion, loss of

promotion opportunity, expulsion from the party (membership in which was an

unofficial requirement for certain jobs), and other administrative punishments,

including in some cases the destruction of property. In the case of families that already

had two children, one parent was often pressured to undergo sterilization. These

penalties sometimes left women with little practical choice but to undergo abortion or

sterilization. There were several rewards for couples who adhered to birth limitation

laws and policies, including monthly stipends and preferential medical and educational

benefits.

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

Country Reports on Human Rights Practices–2006 (Mar. 6, 2007), available

at http://www.state.gov/g/drl/rls/hrrpt/2006/78771.htm [hereinafter 2006

Country Reports].

The Chinese Government as a whole clearly achieves compliance with birth

limits using both incentives and pressure. At issue is whether an alien can

prove that he or she personally faces a well-founded fear of

persecution–generally, forced abortion or sterilization. “Pressure” to undergo

abortion or sterilization may not necessarily mean physical or mental coercion

in the above context of economic rewards and benefits. Indeed, the State

Department recently reported that although “public and other pressure” is used

in Fujian Province to encourage compliance with birth planning laws, officials

“did not find any cases of physical force employed in connection with

abortion or sterilization.” 2007 Profile, supra, at 26. Enforcement efforts

resulting in moderate economic impact would not, in general, prove a well-

founded fear of future persecution. See Matter of T-Z-, 24 I&N Dec. 163

(BIA 2007); Matter of Y-T-L-, 23 I&N Dec. 601, 606 (BIA 2003). Whether

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more severe economic sanctions can rise to the level of persecution is a

question best addressed on a case-by-case basis. Cf. Guan Shan Liao v. U.S.

Dep’t of Justice, 293 F.3d 61, 67, 70 (2d Cir. 2002).

We acknowledge evidence that China’s system of using pressure and

incentives to achieve family planning goals has to some extent included

physical coercion. In particular, in some localities, reports have emerged that

scores of married couples have been detained and forced to submit to

pregnancy testing, with the result that those who were found to have

unauthorized pregnancies (or children) were placed into “population schools,”

described most recently by the State Department as “unofficial prisons.” 2007

Profile, supra, at 24. The most recent State Department Country Reports

reflect that forced sterilizations and abortions, in violation of the national law,

continued to be documented in rural areas. See 2006 Country Reports, supra.

“Reports” of forced sterilizations also came from Fujian Province, which has

both urban and rural populations. See 2007 Profile, supra, at 26-27.

Moreover, a recent decision from the Second Circuit has stated that an

information handbook apparently distributed in or around 1999 to family

planning officials responsible for Changle City, Fujian Province, states that

the birth control measure imposed upon the birth of a second child is

sterilization. See Shou Yung Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir.

2006) (noting that a July 1999 Q&A for Changle City Family-Planning

Information Handbook lends “powerful potential support” to a claim that a

parent of two children would be subject to forced sterilization).

In sum, the question whether the birth of two children in China gives rise

to a well-founded fear of persecution depends on the facts of each case,

including, in particular, the details of local family planning policies, proof that

an alien violated such policies, and evidence that local enforcement efforts

against the violation will rise to the level of persecution. Evidence bearing on

all of these factors must, taken together, establish that a reasonable person in

the respondent’s circumstances would fear persecution if he returned to his

home country. Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987).

See generally INS v. Cardoza-Fonseca, supra.

B. Application to the Respondent’s Case

Applying the above framework to the respondent’s case, we accept the fact,

for purposes of this appeal, that the respondent is the father of two daughters

in China. However, because the respondent’s testimony was deemed not

credible as to his past dealings with family planning officials and his flight

from their enforcement efforts, we cannot credit any of his claims that his

wife’s second pregnancy triggered enforcement efforts against him for

violating birth limits. We therefore must turn to other evidence of record for

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a description of local family planning policies and enforcement practices.

Based on the record as a whole, we find that the respondent has not presented

sufficient evidence to prove a well-founded fear of future persecution in

Fujian Province on account of having fathered two daughters there.

The background evidence of record currently consists of the

aforementioned 1998 Profile and the 2001 State Department Country Reports.

See Bureau of Democracy, Human Rights, and Labor, Dep’t of State, China

Country Reports on Human Rights Practices–2001 (Mar. 4, 2002), available

at http://www.state.gov/g/drl/rls/hrrpt/2001/eap/8289.htm. As noted above,

we also are considering more recent documents authored by the State

Department to reflect current country conditions. See 2006 Country Reports,

supra; 2005 Country Reports, supra; 2007 Profile, supra; 2005 Profile,

supra.3 Such reports generally have been deemed credible and authoritative

sources of information. See Matter of V-T-S-, 21 I&N Dec. 792, 799 (BIA

1997).

The record does not clearly show that the birth of the respondent’s second

child would be viewed as a violation of family planning policies in Fujian

Province.4 The evidence reflects that where the first child is a girl, a Chinese

couple can apply to have a second child. Because the respondent was not

credible, we do not know whether he and his wife ever sought such

permission, and whether the second child is, in fact, properly classified as an

“overbirth” in Fujian Province. We also do not know the extent to which the

respondent accepted or declined the stipends or other benefits mentioned in

the State Department’s Country Reports and Profiles.

Assuming that the birth of the respondent’s second child would be viewed

as unauthorized, the record does not contain persuasive evidence that this birth

would trigger enforcement activity in Fujian Province. Enforcement efforts

in that province were described as “lax” and “uneven” in the 1998 Profile, and

countrywide enforcement was similarly described as “uneven” in the 2007

Profile. Of course, we acknowledge “reports” of forced sterilizations of

women in that province as documented in the 2006 Country Reports, supra,

but note that physical coercion continues to be officially condemned. Indeed,

3

We take administrative notice of these reports and consider them in the context of the

entire record, including contrary evidence presented by the respondent. Chen v. U.S. INS,

359 F.3d 121, 130 (2d Cir. 2004).

4

We note that such determinations are a prerequisite to a finding that there is a “pattern or

practice of persecution” of persons similarly situated to the respondent, a point that the

respondent argues on remand. See 8 C.F.R. § 1208.13(b)(2)(iii)(A) (2007).

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in 2006, State Department interviews with visa applicants from Fujian

Province yielded “no evidence” of forced abortions. 2007 Profile, supra, at

27.

The Second Circuit has observed that certain documents reflect that the

birth control measure imposed upon birth of a second child in Changle City,

Fujian Province, is “sterilization.” See Show Yung Guo v. Gonzales, supra,

at 113. However, there is no indication that the court’s reference is to a policy

of forcible sterilization, as opposed to China’s well-documented system of

offering incentives to obtain compliance with birth control limits. As a whole,

the record lacks persuasive evidence to prove that the mere birth of two

children in China would trigger family planning enforcement efforts that

would rise to the level of persecution under the circumstances of this case. On

balance, the evidence suggests that physical coercion to achieve compliance

with family planning goals is uncommon and unsanctioned by China’s

national laws, and that the overall policy is much more heavily reliant on

incentives and economically-based penalties. Given the evidence of record

regarding the circumstances of this respondent and the most recent available

evidence of country conditions in China, we find that the respondent has not

carried his burden of showing that he has a well-founded fear of persecution

in China on account of fathering two children. Accordingly, the respondent’s

appeal will be dismissed.

ORDER: The appeal is dismissed.

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