En Hui Huang v. Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 09-2437
_____________

EN HUI HUANG,
Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________

On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A099-583-314)
Immigration Judge: Hon. Henry Dogin
_______________

Argued
July 12, 2010

Before: RENDELL, JORDAN, and GREENAWAY, JR.,
Circuit Judges

(Filed September 8, 2010)
 _______________

Richard Tarzia [ARGUED]
P.O. Box 489
Belle Mead, NJ 08502
Counsel for Petitioner

Eric H. Holder, Jr.
Thomas W. Hussey
Sada Manickam [ARGUED]
Joan E. Smiley
United States Department of Justice
Office of Immigration Litigation, Civil Div.
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

En Hui Huang appeals an order of the Board of
Immigration Appeals (“BIA”) reversing the grant of asylum
entered by an immigration judge (“IJ”). Huang contends that
the BIA applied the incorrect standard of review when
evaluating the merits of the IJ’s disposition, and that it abused
its discretion in failing to consider evidence that she submitted
for the first time on appeal. For the reasons that follow, we will

2
grant Huang’s petition for review and remand this case to the
BIA for further consideration of her claims for asylum and
withholding of removal.

I. Factual Background

Huang is a citizen and native of China, whose home
village is located in the town of Guan Tou, Fujian Province. On
February 1, 2003, she entered the United States through
Washington, D.C. without valid entry documentation. She
initially moved to Altoona, Pennsylvania, where she began a
romantic relationship with Duan Zheng Huang, who is also an
illegal alien and citizen of China.1 The couple later relocated to
New York City, where they were married, and where Huang
gave birth to their first child, a son, on October 22, 2004. Their
second child, a daughter, followed on April 27, 2006.

On December 1, 2005, while pregnant with her daughter,
Huang filed a petition for political asylum, withholding of
removal, and protection under the Convention Against Torture
(“CAT”). The petition sought relief on the ground that, once
Huang gave birth to her daughter, she would be in violation of
Chinese family-planning policies, which generally permit
Chinese citizens to have only one child. Huang stated in the
petition that her mother, aunt, and three aunts-in-law had
undergone compulsory sterilization at the hands of Chinese

1
Duan entered the United States in 2000 and applied for
asylum the same year. An IJ denied his petition, and the BIA
affirmed that denial sometime in 2003.

3
authorities, and that she would likewise be “forced to be
sterilized” under those policies if she returned to China. (R. at
2283.) The filing of Huang’s asylum petition apparently alerted
the Department of Homeland Security (“DHS”) to her illegal
status in the United States because, on January 31, 2006, the
government served Huang with a notice to appear, charging her
with being a removable alien. Removal proceedings
commenced in New York but, because Huang had moved to
East Orange, New Jersey around the time that her daughter was
born, her case was transferred to New Jersey.

A. Proceedings before the IJ

On April 25, 2007, an IJ conducted a hearing on Huang’s
petition. Huang testified that, because she has violated family-
planning policies, she fears she will be sterilized if she returns
to China. To corroborate her testimony, Huang produced a letter
from her in-laws, Li Ping Ye and Chun Cai Wang, dated August
8, 2006 (“the in-laws’ letter”), in which her in-laws stated that
they spoke with Fujian family-planning authorities who
informed them that Huang will be sterilized and fined if she
returns to China. She also submitted an affidavit from a native
of Fujian Province who resided in Japan as a student for several
years and fathered two children while living there. According
to the affidavit, Fujian family-planning authorities forced him to
be sterilized when he returned to China. In addition, the IJ
considered a letter dated January 9, 2007, that the government
obtained from the State Department (“the 2007 State
Department letter”) regarding whether compulsory sterilization
continues to occur in Fujian Province. According to the letter,
“Chinese officials assert that national laws and policy and

4
provincial regulations do not permit forced abortions or
sterilizations, [but nonetheless] there is evidence that they have
taken place ... .” (R. at 1353.) The letter referred to the State
Department’s 2007 Profile of Asylum Claims and Country
Conditions for China (“the 2007 Asylum Profile”), according to
which the Department had received reports of compulsory
sterilizations in Fujian Province as recently as 2006. The IJ also
considered the State Department’s 2006 Country Report on
Human Rights Practices (“the 2006 Country Report”), reflecting
that “forced sterilizations and abortions, in violation of the
national law, continued to be documented in rural areas. During
[2006], officials ... in Fujian province reportedly forcibly
sterilized women.” (Id. at 966.)

However, evidence from the State Department was
equivocal regarding whether Fujian Province authorities would
likely find that an alien like Huang, who had given birth to
multiple children abroad, instead of in China, had actually
violated family- planning policies. According to the 2007 State
Department letter, foreign-born children are not considered
permanent residents of China and therefore do not “count” for
purposes of family-planning regulations unless they become
Chinese citizens or register as members of their parents’
household. (Id. at 1353.) Couples have no obligation to register
foreign-born children, the letter indicates, but families with
unregistered children must pay additional fees for unregistered
children to have access to social services such as medical care
and public education. Other evidence from the State
Department, including a 2002 bulletin designed to give travelers
an overview of Chinese society, states that “[c]hildren born in
the United States to [Chinese] national parents ... are not

5
recognized as U.S. citizens under Chinese nationality law” and
are instead “treated solely as [Chinese] nationals by Chinese
authorities when in China.” (Id. at 339.) That position is
confirmed by a 2003 administrative decision issued by the
Fujian Department of Family-Planning Administration
(“FDFPA”),2 which states that “if either parent remains a
Chinese national and citizen without permanent residence
overseas[,] any child of such a couple shall be treated as a
Chinese national and citizen for ... domestic administrative
purposes regardless of the child’s nationality conferred by his or
her country of birth.” (Id. at 1895.) Thus, that administrative
decision asserts that foreign-born children of Chinese nationals
are automatically counted as Chinese residents for purposes of
Fujian family-planning policies. (See id. at 1896 (stating, as the
official position of the FDFPA, that an employee of the Chinese
government who “reproduced a second child while on a family
visit in the United States is in violation of family-planning
regulations”).)

2
The Chinese central government in Beijing has promulgated
a nationwide family- planning statute that requires each province
and municipality to establish its own set of family-planning
regulations and to create both provincial and municipal
authorities to oversee and enforce those regulations. While the
record does not expressly describe the functions of the Fujian
Department of Family Planning Administration, it appears that
the FDFPA is the authority charged with overseeing province-
wide family-planning policies.

6
 Citing the conflicting evidence, the IJ granted Huang’s
asylum application. The IJ concluded that Huang possessed a
well-founded fear of persecution because the birth of her second
child likely placed her in violation of Fujian family-planning
regulations. While recognizing that the 2007 State Department
letter intimated that an alien in Huang’s situation would not be
sterilized, the IJ nevertheless found that “[t]he children will
come to the attention of the authorities and there’s a strong
possibility [Huang] will be forbidden to have any other children
and some sort of procedure will be carried out on her and/or her
husband.” (R. at 1322.)

B. Proceedings before the BIA

The government appealed to the BIA, challenging the
grant of asylum on the basis that reports of compulsory
sterilization varied greatly from municipality to municipality and
that Huang had failed to show she would return to an area in
Fujian Province where such procedures actually occurred. The
government also contended that Huang lacked a well-founded
fear of persecution because she could avoid sterilization by
choosing not to register her children as permanent residents of
China.

1. Huang’s Newly Submitted Evidence

In response, Huang submitted several pieces of evidence
that she had not produced before the IJ but which she urged the
BIA to consider in the first instance. Among those exhibits was
a DHS report dated April 17, 2007, that contained a response
from the Fujian Province Office of Foreign Affairs to a DHS

7
inquiry seeking, among other things, clarification regarding
whether foreign-born children of Chinese nationals are counted
under Fujian family-planning policies.3 Fujian officials
responded that whether foreign-born children count toward
family-planning quotas depends upon whether their parents
register them as permanent Chinese residents when the family
returns to China. Children who have been formally registered
will be considered for purposes of family-planning enforcement.
Children who have not been formally registered are not
considered permanent residents of China and therefore do not
count, but, as indicated in the 2007 State Department letter,
parents must pay additional fees in order for such children to use
many social services.

In addition to the DHS report, Huang submitted Chinese
family-planning propaganda, Chinese travel documents for her
children, and two administrative decisions from the FDFPA and
the Changle City Planning Board indicating that foreign-born
children are counted for family-planning purposes. She also
submitted two documents dated November 15, 2007, obtained
from her mother-in-law, Li Ping Ye. The first document is an
affidavit in which Ye testifies that she inquired with family-
planning officials in Huang’s husband’s hometown of Fuzhou,
Fujian Province, whether Huang will face sanctions if she
returns to China. According to the affidavit, those officials
informed Ye that, despite the national government’s policy

3
While the report was not prepared for use in Huang’s case,
several of the documents it discusses were submitted in support
of her petition.

8
against mandatory sterilization, “Chinese citizens ... must obey
the family planning policy of China, one child IUD inserted, two
children sterilization; unless they are not Chinese citizens[.
A]lthough, [Huang and her husband] gave birth[] to two
children in U.S., one of the couple must be sterilized with fines
as well” upon returning to China. (R. at 148.) The second
document is a written certification purportedly issued by Fuzhou
family-planning authorities in response to Ye’s inquiry,
indicating that an “IUD must be inserted after giving birth to a
boy, and can not give birth again. The second child is allowed
with birth permit after interval of four years if the first child is
a girl, sterilization must be implemented after that.” (Id. at 152.)

Huang argued that, if the BIA was inclined to reverse the
IJ’s grant of asylum on the existing record, it should
nevertheless affirm based on the newly submitted evidence.
Huang also asked, in a motion filed as part of her brief
(hereinafter “the motion to remand”), that, if the BIA refused to
consider the new evidence, it nevertheless remand the case to
the IJ and reopen the record for consideration of that evidence
by the IJ in the first instance. The BIA denied the motion in a
footnote, stating that “[t]he Board does not consider evidence
submitted on appeal” and that, in any event, many of the
documents were cumulative of other evidence in the record. (Id.
at 4 n.1.)

2. The Merits of Huang’s Asylum Petition

On the merits, the BIA reviewed de novo the IJ’s grant of
asylum and reversed it, saying that an objectively reasonable
person in Huang’s situation would not have harbored a fear of

9
persecution. The BIA gave four reasons for its holding. First,
it observed that no uniform policy of sterilization exists in
Fujian Province and that, while violators of family-planning
policies sometimes face fines, officials often impose no
sanctions. Second, it noted that Huang had produced no
evidence that she would be individually targeted for
sterilization. Third, the BIA concluded that the affidavit from
the Chinese citizen who returned from Japan was unreliable
because it “did not contain all of the underlying facts of that
case.” (Id. at 5.) Finally, the agency rejected the in-laws’ letter
as a basis for a well-founded fear of persecution because the
letter contained multiple layers of hearsay. The BIA did not
comment on the State Department reports intimating that
compulsory sterilization continues in some parts of Fujian
Province. On November 6, 2008, the BIA entered a final order
of removal.4 Huang then filed a timely petition for review.

II. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to
review a final order of removal issued by the BIA. The BIA
possesses appellate jurisdiction over IJs’ decisions, which the
BIA may either summarily affirm or analyze in an independent
opinion. 8 C.F.R. § 1003.1(e)(4)-(6). If the BIA summarily
affirms an IJ’s order, we review the IJ’s decision as the final

4
The BIA also rejected Huang’s claims for withholding of
removal and relief under the CAT, for essentially the reasons it
gave for denial of her asylum petition. The CAT claim is not
before us on appeal.

10
administrative determination. Konan v. Att’y Gen., 432 F.3d
497, 500 (3d Cir. 2005). When the BIA issues a separate
opinion – as it did in Huang’s case – we review the BIA’s
disposition and look to the IJ’s ruling only insofar as the BIA
defers to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.
2006).

The BIA’s ruling on an asylum petition is “conclusive
unless manifestly contrary to the law and an abuse of
discretion.” 8 U.S.C. § 1252(b)(4)(D). We review the facts
upon which the BIA’s decision rests to ensure that they are
supported by substantial evidence from the record considered as
a whole, Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 106 (3d
Cir. 2010), and we will reverse based on a factual error only if
any reasonable fact-finder would be “compelled to conclude
otherwise,” 8 U.S.C. § 1252(b)(4)(B). We review the BIA’s
legal conclusions de novo, but we accord deference under
Chevron v. National Resources Defense Counsel, Inc., 467 U.S.
837 (1984), to its interpretation of statutes and regulations
within its enforcement jurisdiction. Wang v. Ashcroft, 368 F.3d
347, 349 (3d Cir. 2004); see also Auer v. Robbins, 519 U.S. 452,
461 (1997) (holding that an agency’s interpretation of its own
regulations is “controlling unless plainly erroneous or
inconsistent with the regulation” (citation and quotation marks
excluded)).

III. Discussion

Huang raises three issues on appeal. First, she argues
that the BIA did not apply the correct standard of review to the
IJ’s determination that she had a well-founded fear of

11
persecution. Second, she contends that, even if the BIA applied
the correct standards of review, it abused its discretion in
reversing the IJ’s grant of asylum because the evidence of
record was sufficient to show that she has a well-founded fear
of persecution in the form of mandatory sterilization. Third, she
contends that the BIA abused its discretion in failing to remand
her case to the IJ to consider her new evidence. Because the
merits of Huang’s asylum petition are intertwined with her
challenge regarding the BIA’s standards of review, we will
address those issues together before discussing the motion to
remand.

A. The Asylum Petition

Section 208 of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1158, confers authority upon the Attorney
General to grant asylum to aliens who enter the United States if
they qualify for refugee status. Id. § 1158(b)(1)(A). The
Attorney General has delegated that authority to immigration
judges, whose decisions are reviewable by the BIA. 8 C.F.R. §§
1003.1(b), 1003.14.

To qualify for refugee status, an alien must show that he
is unable or unwilling to return to his native country due either
to past persecution or a well-founded fear of future persecution.
8 U.S.C. § 1101(a)(42)(A); Chavarria, 446 F.3d at 516. The
INA contains no statutory definition of “persecution,” but we
have explained that the term does not encompass all forms of
unfair, unjust, discriminatory, or unlawful treatment; rather it
covers only severe humanitarian mistreatment, such as “death
threats, involuntary confinement, torture, and other severe

12
affronts to the life or freedom of the applicant.” Gomez-
Zuluaga v. Att’y Gen., 527 F.3d 330, 341 (3d Cir. 2008). To
constitute a basis for asylum, the persecution must have been
motivated by a statutorily protected ground, namely the alien’s
race, religion, nationality, political opinion, or membership in a
particular social group. 8 U.S.C. § 1101(a)(42)(A). A person
who is forced to undergo an abortion or a sterilization, or who
has been persecuted for refusing to comply with a coercive
population control policy, is deemed to have been persecuted
based on political opinion.5 Id. § 1101(a)(42)(B). Similarly, a
person who has a well-founded fear of those consequences is
deemed to have a well-founded fear of political opinion-based
persecution. Id. The alien bears the burden of proving
eligibility for asylum through credible evidence. 8 C.F.R. §
1208.13(a); Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005).
In this case, past persecution is not at issue. Huang’s right to

5
Mandatory birth-control measures short of abortion or
sterilization, such as insertion of an IUD or required
gynecological screenings, do not, on their own, rise to the level
of persecution and therefore cannot be the sole support of an
award of asylum. In re M-F-W- & L-G-, 24 I. & N. Dec. 633,
636-37 (B.I.A. 2008). However, such measures do qualify as a
“coercive population control program,” and an alien may obtain
asylum if he resists those measures and the government
persecutes him as a result. Id. at 638. In this appeal, Huang
seeks asylum based on the fear that she will be sterilized if
returned to China. That fear, if well-founded, unquestionably
entitles her to relief.

13
asylum turns only upon whether she has a well-founded fear of
persecution in the form of sterilization if she returns to China.

To establish a well-founded fear of persecution, the alien
must demonstrate, first, that the alien “has a fear of persecution
. . . on account of race, religion, nationality, membership in a
particular social group, or political opinion”; second, that there
is a “reasonable possibility” that the alien will suffer persecution
based on a protected ground if returned to his or her native
country; and third, that the alien “is unable or unwilling to return
to, or avail himself or herself of the protection of, that country
because of such fear.” 8 C.F.R. § 1208.13(b)(2)(i).

The courts have interpreted the term “well-founded fear”
to include both subjective and objective aspects: the alien must
entertain a subjective apprehension that persecution will follow
repatriation, and that apprehension must be objectively
reasonable in light of the circumstances of the alien’s case. Sioe
Tjen Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir. 2008). The
objective component of the analysis requires the alien to show
that a reasonable person in his position would fear persecution,
either because he “would be individually singled out for
persecution” or because “there is a pattern or practice in his
home country of persecution” against a group of which he is a
member. Id. (internal quotations omitted); see also Camara v.
Att’y Gen., 580 F.3d 196, 202 (3d Cir. 2009) (observing that the
objective component of the well-founded fear analysis requires
the alien to demonstrate that “a reasonable person in her
circumstances would fear persecution if returned to her native
country”).

14
 1. BIA’s Standards of Review in Asylum
Cases

Under 8 C.F.R. § 1003.1(d)(3), the BIA may not reverse
an IJ’s factual findings unless they are clearly erroneous. Id.
§ 1003.1(d)(3)(i). The IJ’s legal conclusions, however, are
subject to plenary review. Id. § 1003.1(d)(3)(ii). The BIA also
has plenary review over the IJ’s exercise of discretionary
authority. Id. Thus, questions of judgment, such as an IJ’s
decision to grant asylum, to reopen the record, or to reconsider
a disposition, receive no deference from the BIA.6 Whether a
particular determination by the IJ constitutes a finding of fact or
a conclusion of law is significant because that characterization
affects the level of deference that the BIA must give to the
determination.

In this appeal, Huang argues that the BIA did not apply
the correct standard of review when it rejected the IJ’s
conclusion that she has a well-founded fear of persecution.
Huang asserts that the question of whether an alien has a well-
founded fear of persecution is a purely factual one and that the

6
The BIA’s standards of review differ markedly from the
standard that governs our review of BIA decisions. We lack
jurisdiction to review the grant or denial of many forms of
discretionary relief, 8 U.S.C. § 1252(a)(2)(B), and when
reviewing asylum petitions, over which we do possess
jurisdiction, id., we may not reverse the BIA’s discretionary
actions unless they are “contrary to law and an abuse of
discretion.” Id. § 1252(b)(4)(D).

15
BIA may reverse an IJ’s finding that an alien has such a fear
only if the finding is clearly erroneous. According to Huang, the
BIA’s reversal departed from the “clearly erroneous” standard
because the record contains sufficient evidence to support the
IJ’s finding that she possesses a well-founded fear of
sterilization. The government responds by relying on In re
A-S-B-, 24 I. & N. Dec. 493, 498 (B.I.A. 2008), in which the
BIA held that it exercises de novo review over the question of
whether an alien possesses a well-founded fear of persecution
because that determination requires speculation about future
events and therefore does not qualify as fact-finding. Huang
does not expressly challenge A-S-B-, but, in arguing that a well-
founded fear of persecution presents a purely factual issue, she
nonetheless calls that decision into question. Thus, we begin by
considering whether A-S-B- is consistent with the standards of
review described in § 1003.1(d)(3).

a. Validity of A-S-B- in the Asylum
Context

In A-S-B-, the BIA held that the forecasting of future
events in an asylum case does not constitute fact-finding
because predictions are inherently speculative and it is
“impossible to declare as ‘fact’ things that have not yet
occurred.” 24 I. & N. Dec. at 498. The BIA has therefore taken
the position that no deference is owed to an IJ’s conclusion
regarding the risk that an event will take place once an alien is
repatriated. Id.; see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec
209, 212 (B.I.A. 2010) (“We ... review de novo the question
whether the respondent has carried her burden of establishing a
well-founded fear that the family planning policy will be

16
enforced against her through means constituting persecution
upon her return to China.”).

In Kaplun v. Attorney General, 602 F.3d 260 (3d Cir.
2010), we considered in the context of a CAT claim whether
A-S-B- set forth a valid interpretation of the standards of review
required by § 1003.1(d)(3). The BIA had, as in asylum cases,
concluded that the forecasting of future events in the CAT
context did not constitute fact-finding because it involved
speculation. See In re V-K-, 24 I. & N. Dec. 500, 501 (B.I.A.
2008) (“Although predictions of future events may in part be
derived from “facts,” they are not the sort of “[f]acts determined
by the Immigration Judge” that can only be reviewed for clear
error.” (quoting § 1003.1(d)(3))). We rejected that holding as a
plainly erroneous interpretation of § 1003.1(d)(3) because the
probability of an event occurring in the future exists
independently of the event itself, and is therefore a separate and
distinct “fact” in the relevant legal sense. Kaplun, 602 F.3d at
269. “This likelihood, while an assessment 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.” Id.
We explained that while the event may occur in the future, the
possibility of its occurring exists in the present. Thus, a
determination by an IJ that an event may take place when an
alien is repatriated constitutes a finding of fact because the
probability itself currently exists and gives rise to a present
apprehension of the event it represents. Id. Accordingly, we
concluded that, “insofar as the BIA interpret[s] 8 C.F.R. §
1003.1(d)(3) to hold that an IJ’s assessment of [future events] is
not a finding of fact because the events have not yet occurred,

17
... its interpretation plainly errs.” Id. (citing Auer v. Robbins,
519 U.S. 452, 461 (1997)).

We reserved judgment in Kaplun regarding whether
A-S-B-’s holding might nonetheless continue to govern in
asylum cases. 602 F.3d at 269 n.7 (“To the extent that A-S-B- ...
address[es] the standard of review applied to an IJ’s
determination of a ‘well-founded fear of future persecution’ in
the asylum context ... , we do not purport to resolve that issue at
this time.”). We now conclude, however, that, for essentially
the reasons expressed in Kaplun, A-S-B-’s interpretation of §
1003.1(d)(3) is plainly erroneous. That section applies to both
CAT and asylum cases, and, though there are important
distinctions between the two, see infra note 7, the process of
forecasting future events is a factual inquiry in an asylum case
for the same reasons it is in a CAT case. In considering a CAT
case, the IJ must identify what events are likely to occur after
repatriation and, once that is done, must determine whether the
alien has demonstrated that what he is likely to suffer amounts
to torture. Similarly, an asylum case requires the IJ to determine
what events have a reasonable possibility of occurring, so that
there can be an assessment of whether an alien possesses a well-
founded fear of persecution. We therefore conclude that the
interpretation of § 1003.1(d)(3) in A-S-B- cannot stand, and we
hold that an IJ’s forecasting of future events constitutes fact-
finding that the BIA must review under the clearly erroneous
standard. However, that is far from the end of the matter.

18
 b. Analysis of IJ Asylum Decisions

The assessment of future events is only one part of the
analysis of an asylum case based on the assertion of a well-
founded fear of persecution. In any asylum case predicated on
the fear of future persecution, an IJ must answer three essential
questions. First, as just noted, the IJ must ask what may happen
if the alien returns to his home country. See INS v. Cardoza-
Fonesca, 480 U.S. 421, 423 (1987) (reflecting that asylum
protects aliens who show that they may be persecuted if they
return home). Second, the IJ must question whether those
events meet the legal definition of persecution. See Shardar v.
Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004) (rejecting an asylum
claim because the alien failed to show that the treatment he
might encounter upon returning home qualified as persecution).
Third, the IJ must consider whether the possibility of those
events occurring gives rise to a well-founded fear of persecution
under the circumstances of the alien’s case. See Espinosa-
Cortez, 607 F.3d at 108 (stating that, to establish a well-founded
fear, the alien must prove that he has a subjective apprehension
of harm and that his fear is objectively reasonable).

As we stated above, the IJ’s answer to the first question
is factual in nature and is subject to clearly erroneous review by
the BIA. The answer to the second question – whether those
events meet the legal definition of persecution – is reviewed de
novo because it is plainly an issue of law. Cf. Board of
Immigration Appeals: Procedural Reforms to Improve Case
Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002)
(“The immigration judge’s determination[] of whether ... facts
demonstrate harm that rises to the level of ‘persecution[]’ ... [is]

19
not ... limited by the ‘clearly erroneous’ standard.”). The
question we turn to here is what standard of review the BIA
should apply when a party challenges the IJ’s answer to the third
question, whether the facts support a well-founded fear of
persecution.

To address that issue, we turn to the text of
§ 1003.1(d)(3) and to the Attorney General’s guidance regarding
implementation of that regulation.7 See Lewis v. Atlas Van
Lines, Inc., 542 F.3d 403, 409 (3d Cir. 2008) (“We begin our
analysis ... with the rule that ‘[t]he basic tenets of statutory
construction apply to construction of regulations and our starting
point on any question concerning the application of a regulation
is its particular written text.’” (quoting Pa. Fed’n of Sportsmen’s
Clubs, Inc. v. Kempthorne, 497 F.3d 337, 351 (3d Cir. 2007)));
Bragdon v. Abbott, 524 U.S. 624, 642 (1998) (“[T]he well-

7
The text of 8 C.F.R. § 1003.1(d)(3)(i) & (ii) is as follows:
(d) Powers of the Board [of Immigration Appeals]– ...
(3) Scope of review.
(i) The Board will not engage in de novo review of
findings of fact determined by an immigration judge.
Facts determined by the immigration judge, including
findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the
immigration judge are clearly erroneous.
(ii) The Board may review questions of law, discretion,
and judgment and all other issues in appeals from
decisions of immigration judges de novo.

20
reasoned views of the agencies implementing a statute constitute
a body of experience and informed judgment to which courts
and litigants may properly resort for guidance.” (internal
quotation omitted)).

Section 1003.1(d)(3) provides that IJ decisions that are
purely factual in nature receive clear error review. 8 C.F.R.
§ 1003.1(d)(3)(i). All other decisions are reviewed de novo. Id.
§ 1003.1(d)(3)(ii). The Attorney General has explained that,
under this two-tiered system, the highly deferential clearly
erroneous review applies only to the IJ’s description of the
events and circumstances that

form the factual basis for the decision under
review. The ‘clearly erroneous’ standard does not
apply to determinations of matters of law, nor to
the application of legal standards, in the exercise
of judgment or discretion. This includes
judgment as to whether the facts established by a
particular alien amount to “past persecution” or a
“well-founded fear of future persecution.”

Procedural Reforms to Improve Case Management, 67 Fed. Reg.
at 54,890. The Attorney General’s guidance thus suggests that
the answer to the third question – whether the facts give rise to
a well-founded fear of persecution – is subject to de novo review
because it requires the exercise of judgment in the application of
the well-founded fear standard to the facts of the alien’s case.
Id. The factual-versus-legal distinction is less clear on this
point, however, because the definition of a well-founded fear of

21
persecution includes elements that are both legal and factual in
nature.

The government’s briefing correctly observes that
judging the objective reasonableness of the alien’s fear involves
a “legal standard[] that must be applied to the immigration
judge’s factual findings, and [is] thus reviewed by the Board de
novo.” (Gov’t Supp. Br. at 2.) In essence, the government
acknowledges that whether an alien has a well-founded fear
presents a mixed question of fact and law. We agree. A mixed
question of fact and law is one that requires application of a
legal standard to a particular set of circumstances. See 9C
C HARLES A LAN W RIGHT & A RTHUR R. M ILLER, F EDERAL
P RACTICE AND P ROCEDURE § 2589, at 473 (3d ed. 2008)
(characterizing mixed questions as those which “involve
elements of both law and fact”). That is precisely the nature of
the well-founded fear inquiry.

An IJ reviewing an assertion of well-founded fear must
determine whether the alien has an objectively reasonable fear
of persecution based on the events that may occur if he returns
home. See Procedural Reforms to Improve Case Management,
67 Fed. Reg. at 54,890 (characterizing the well-founded fear
inquiry as an analysis requiring “the application of legal
standards”); see also Board of Immigration Appeals: Procedural
Reforms to Improve Case Management, 67 Fed. Reg. 7309,
7315 (Feb. 19, 2002) (describing, in a proposed version of
§ 1003.1(d)(3), that the regulation was “not [designed to]
preclude the Board from reviewing mixed questions of law and
fact, including, without limitation, whether an alien has
established a well-founded fear of persecution”). The factual

22
part of the inquiry requires the IJ to evaluate what may occur
when the alien is repatriated, including whether there has been
a pattern or practice in the alien’s home country of targeting for
persecution a statutorily protected group of which the alien is a
member or whether he will be individually targeted based on a
protected characteristic. The legal part of the inquiry requires
the IJ to apply the objective reasonableness standard and
determine whether the predicted events (and pattern or practice,
if applicable) would cause a reasonable person in the alien’s
situation to fear persecution.8 That legal piece of the analysis

8
There is an important difference between this kind of
analysis and the one that we set forth in Kaplun for CAT claims.
The CAT requires an alien to prove that it is more likely than
not he will be tortured if he is repatriated. Gomez-Zuluaga, 527
F.3d at 349. Thus, an IJ may award relief under the CAT if the
IJ, first, identifies what may occur when the alien returns home,
second, attaches a probability of more than 50% to that event,
and, third, determines that the probable event qualifies as
torture. In an asylum case, however, “well-founded fear” turns
not on an assessment of what is more likely than not but on what
is “possible,” and then on whether the alien’s fear of that
possibility is reasonable. See Espinosa-Cortez, 607 F.3d at 108
(“To satisfy the objective prong [of the well-founded fear test],
the petitioner must show that a reasonable person in the alien's
circumstances would fear persecution if returned to the country
in question.” (internal quotation marks and citation omitted)).
Fundamental to the inquiry is a factual determination regarding
whether the event the alien allegedly fears falls within the realm
of the possible, but an equally fundamental component of the

23
properly receives de novo review from the BIA. 8 C.F.R.
§ 1003.1(d)(3)(ii) (“The Board may review questions of law,
discretion, judgment and all other issues ... de novo.”).

Treating the reasonableness of an alien’s fear as a mixed
question of fact and law is in keeping with how appellate
tribunals typically treat issues of objective reasonableness. See
9C W RIGHT & M ILLER, § 2589, at 473-74 (“[T]here is
substantial authority that ... determination [of mixed questions
of fact and law] is not within the ambit of the ‘clearly erroneous’
rule and they are freely reviewable ... .”). For example, in the
context of qualified immunity for constitutional torts, the

analysis requires a judgment about whether the possible event
actually gives rise to a reasonable fear. In terms of the
“possibility,” the Supreme Court has noted that “[o]ne can
certainly have a well-founded fear of an event happening when
there is less than a 50% chance of the occurrence taking place.”
Cardoza-Fonseca, 480 U.S. at 431. An IJ may find an event to
be reasonably possible and conclude that an alien would have a
well-founded fear of persecution based on it. The BIA may
review that decision, and conclude, without rejecting the IJ’s
factual finding regarding the possibility of the event, that, in its
judgment, the possibility of the event does not give rise to an
objectively reasonable fear of persecution. Such a determination
does not reject the IJ’s factual finding that the event may occur;
it merely constitutes a judgment by the BIA that the event,
though possible, does not give rise to an objectively reasonable
fear. That exercise is properly performed using a de novo
standard of review.

24
reasonableness of a state actor’s conduct based on undisputed
facts is subject to de novo review as a question of law. See
Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002) (concluding
that the reasonableness of a state actor’s conduct must be
decided by the court). Similarly, when interpreting ambiguous
contract provisions, courts ask as a matter of law how a
reasonable person would read the term at issue. See MBIA Ins.
Corp. v. Royal Indem. Co., 426 F.3d 204, 210 (3d Cir. 2005)
(“Whether a contract is ambiguous is determined according to
an objective, reasonable-person standard and is a question of
law.”). Also, when ruling on a federal criminal defendant’s
claim for ineffective assistance of counsel, courts determine as
a mixed question of fact and law whether the conduct of the
petitioner’s trial counsel comported with that of an objectively
reasonable attorney. See United States v. Cross, 308 F.3d 308,
314 (3d Cir. 2002) (stating that ineffective assistance claims
challenging the validity of a federal sentence “present mixed
questions of law and fact” subject to de novo review). Even in
negligence cases, where questions of reasonableness are
submitted to juries and reviewed for clear error on appeal,
Travelers Indem. Co. v. Ewing, Cole, Erdman & Eubank, 711
F.2d 14, 17 (3d Cir. 1983), federal courts have recognized that
analyzing cases in that way “is an exception to the general rule
that mixed questions of law and fact are reviewed de novo.”
Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th Cir. 1995).

That standard of review is, moreover, consistent with the
Attorney General’s expressed goal in promulgating the BIA’s
two-tier level of review, namely, to bring national uniformity to
immigration law by allowing the BIA “to consider and resolve
instances where ‘differing decisions may be reached based on

25
essentially identical facts.’” Procedural Reforms to Improve
Case Management, 67 Fed. Reg. at 54,890 (quoting In re
Burbino, 20 I. & N. Dec. 872, 873 (B.I.A. 1994)). Many aliens
flee their home countries under very similar circumstances that
should, in fairness, lead to similar outcomes in their asylum
petitions. If a determination regarding an alien’s well-founded
fear were reviewed only under the clearly erroneous standard, it
would be difficult to confront the problem of multiple IJs
reviewing substantively similar asylum petitions but reaching
different conclusions about whether a reasonable person would
have a well-founded fear of persecution. The BIA would be
powerless to correct the disparity, even when the petitions were
identical in all meaningful respects. The BIA has recognized
that preventing this type of discord among IJ decisions is one of
its major institutional goals, and one that requires it to exercise
de novo review over how reasonable people would respond to a
particular set of facts. Burbino, 20 I. & N. Dec. at 873-74 (“The
advantage of an independent standard of review is that it
promotes uniformity in the application of the various
discretionary provisions of the [INA]”); see also In re
Crammond, 23 I. & N. Dec. 9, 15 (B.I.A.) (“Important policy
considerations favor applying a uniform federal standard in
adjudicating removability . . . under the Act.”), vacated on other
grounds by 23 I. & N. Dec. 179 (B.I.A. 2001).

Characterizing objective reasonableness in this way is
also consistent with our precedent. We have recognized that the
BIA exercises de novo review over “the determination as to
whether certain facts give rise to a well-founded fear of
persecution.” Sheriff v. Att’y Gen., 587 F.3d 584, 592 (3d Cir.
2009). The well-founded fear inquiry depends heavily upon

26
applying a legal standard to the factual issues of a particular
alien’s case, and we have stated that the BIA’s disposition of the
inquiry “‘must be upheld if it is supported by substantial
evidence in the record.’” Espinosa-Cortez, 607 F.3d at 107
(quoting Gomez-Zuluaga, 527 F.3d at 340). Thus, the BIA has
greater latitude in reviewing an IJ’s decision on well-founded
fear than do we when reviewing the disposition of the BIA
itself.9 Compare Procedural Reforms to Improve Case

9
Courts of Appeal have recognized a variety of situations in
which administrative agencies – by virtue of their particular
expertise and Congressional mandate – possess greater latitude
in addressing mixed questions of fact and law than do appellate
courts when reviewing administrative dispositions. See Lion
Uniform, Inc., Janesville Apparel Div. v. NLRB, 905 F.3d 120,
123-24 (6th Cir. 1990) (finding that an agency could properly
review an administrative law judge’s award of attorney fees de
novo, even though the same issue was reviewed by the court of
appeals for substantial evidence, because the two types of appeal
were designed to accomplish different functions: whereas the
administrative appeal was designed to render disposition on
behalf of the agency, judicial review was created only to ensure
that the agency’s decision was rooted in the record); compare 24
C.F.R. § 26.52(k) (providing that the Secretary of Housing and
Urban Development, when reviewing decisions issued by an
administrative law judge (“ALJ”), may “affirm, modify, reduce,
reverse, compromise, remand, or settle any relief” granted by the
ALJ), with White v. U.S. Dep’t of Hous. & Urban Dev., 475 F.3d
898, 904 (7th Cir. 2007) (indicating that the Secretary’s
determination receives “deferential[] review” from the court of

27
Management, 67 Fed. Reg. at 54,890 (“The ‘clearly erroneous’
standard does not apply ... to the application of legal standards,
... includ[ing] judgments as to whether the facts established by
a particular alien amount to ... a ‘well-founded fear of future
persecution.’”), with Kibinda v. Att’y Gen., 477 F.3d 113, 118-
19 (3d Cir. 2007) (stating that the administrative determination
regarding a well-founded fear of persecution must be upheld
unless “the evidence not only supports a contrary conclusion,
but compels it” (internal quotations omitted)). It is therefore
appropriate for the Attorney General to grant the BIA de novo
review over the “objective reasonableness” component of the
well-founded fear inquiry, even though we grant greater
deference to the BIA’s disposition of that question on a petition
for review.

In sum, evaluating whether a reasonable person would
fear persecution under a particular set of circumstances requires
the exercise of legal judgment in applying a standard of

appeals and will be “reverse[d] only if the determination is
legally or procedurally unsound, or is unsupported by substantial
evidence” (internal quotation omitted)); compare 5 U.S.C.
§ 557(b) (stating that, when an ALJ renders a decision, the
agency who has jurisdiction over that ruling may review that
decision using “all of the power which it would have[,]” had it
made the decision in the first instance), with id. § 706(2)
(proving that a court reviewing an agency’s final determination
may reverse only, among other things, for a lack of substantial
evidence or if the agency acted in an arbitrary manner or abused
its discretion).

28
objective reasonableness to the facts of an alien’s particular
case. The resulting determination is one over which the BIA has
plenary review. 8 C.F.R. § 1003.1(d)(3)(ii). Of course, part of
the well-founded fear determination may depend on disputed
facts, which must be resolved by the IJ, whose decisions in that
regard are subject to clearly erroneous review. Once the IJ
resolves factual issues, though, assessing how a reasonable
person would respond to those facts is a question of law, and the
BIA is within its authority to review that assessment under a de
novo standard.

However, when the BIA reaches a different conclusion
than the IJ, either on the facts or the law, its review must reflect
a meaningful consideration of the record as a whole. It is not
enough for the BIA to select a few facts and state that, based on
them, it disagrees with the IJ’s conclusion. Cf. Sheriff, 587 F.3d
at 595 (faulting BIA for neglecting to consider several facts
crucial to the petitioner’s asylum application, including the fact
that government forces in her native country had destroyed her
home, murdered her mother, and raped her daughter in her
presence). Instead, the BIA must describe its reasoning with
enough specificity to inform the parties and us why it reached its
conclusion. See Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir.
2003) (“In order for us to be able to give meaningful review to
the BIA’s decision, we must have some insight into its
reasoning.”). The BIA must show that it reviewed the record
and considered the evidence upon which the IJ relied, and it
must explain why the record warrants a different conclusion
than the one reached by the IJ. In an asylum case, this means
that the BIA must examine the record of the petitioner’s case

29
and explain why, based on that record, an objectively reasonable
alien would not fear persecution if returned to his home country.

2. The Merits of Huang’s Asylum Petition

While the BIA was free to disagree with the IJ as to
whether the evidence showed that Huang had an objectionably
reasonable well-founded fear, it could only do so if, as noted
above, it considered the record as a whole. Unfortunately, the
BIA’s opinion does not reflect that type of consideration. In
granting asylum, the IJ relied on the 2007 State Department
letter. That letter indicates that U.S. officials know of no policy
at the national or provincial level that “mandat[es] the
sterilization of one partner of couples that have given birth to
two children[,]” and that, to the extent an unwritten practice of
sterilization exists, Chinese citizens may be able to avoid it by
either paying social compensation fees or by choosing not to
register their children as members of their household. (Id. at
1353.) However, the letter says nothing about whether local
family-planning policies require sterilization, and Huang
submitted a 2003 administrative decision issued by the FDFPA
that contradicts what was said in the 2007 State Department
letter. According to that decision, a child born outside of China
to Chinese parents who do not have permanent residency in the
child’s country of birth “shall be treated as a Chinese national
and citizen for ... domestic administrative purposes,” including
enforcement of Fujian family-planning regulations. (Id. at
1895.) Even the 2007 State Department letter states that,
“[a]lthough Chinese officials assert that national laws and policy
and provincial regulations do no permit forced abortions or
sterilizations, there is evidence that they have taken place.” (Id.)

30
There is additional evidence from the State Department to
corroborate that finding. For example, according the 2007
Asylum Profile, the State Department had received reports of
compulsory sterilizations in Fujian Province as recently as 2006.
The 2006 Country Report confirms that, as of 2006, reports of
forced sterilizations in derogation of the national policy
continued to emanate from Fujian Province. In Fujian and
elsewhere, according to the report, parents of two children
commonly faced extreme psychological and economic pressure
to be sterilized, “sometimes [leaving] women with little practical
choice but to undergo abortion or sterilization.” (R. at 966.)

Yet the BIA discussed none of that evidence, instead
devoting its analysis to explaining why the lack of an express
sterilization policy, Huang’s lack of individualized evidence, her
in-laws’ letter, and the affidavit from the Chinese citizen who
fathered two children in Japan were insufficient to establish an
objectively reasonable fear of persecution. The BIA simply
failed to address any evidence that, if credited, would lend
support to Huang’s asserted fear of sterilization, and thus the
decision does not reflect a consideration of the record as a
whole. While we are not suggesting that the BIA must discuss
every piece of evidence mentioned by an asylum applicant, it
may not ignore evidence favorable to the alien, particularly
when, as here, the alien’s administrative brief expressly calls the
BIA’s attention to it. See Espinosa-Cortez, 607 F.3d at 107
(“[T]he BIA is not permitted simply to ignore or misconstrue
evidence in the asylum applicant’s favor.”).

The BIA’s analysis does little more than cherry-pick a
few pieces of evidence, state why that evidence does not support

31
a well-founded fear of persecution, and conclude that Huang’s
asylum petition therefore lacks merit. That is selective rather
than plenary review. “Plenary” means “full; complete; entire,”
B LACK’S L AW D ICTIONARY (9th ed. 2009), and with the power
to conduct plenary review goes the responsibility to conduct it.
The BIA must provide sufficient analysis to demonstrate that it
has truly performed a full review of the record, including the
evidence that may support the alien’s asylum claim.10 See
Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006)
(requiring the BIA to perform an analysis of sufficient depth to
permit meaningful appellate review of its reasoning). Because
the BIA’s decision does not indicate that such a review took
place in Huang’s case, we will grant the petition for review,
vacate the final order of removal entered by the BIA, and
remand for further proceedings.

10
Huang claims that the BIA erred in denying her request for
withholding of removal, for the same reasons that she appeals its
asylum disposition. The substantive elements for obtaining
withholding are the same as for asylum, except that the alien
must prove by a preponderance of the evidence, rather by a
reasonable probability, that he will be persecuted based on a
statutorily protected ground if he is repatriated. Lukwago v.
Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Because the BIA
performed an inadequate asylum analysis and did not
independently assess Huang’s right to withholding of removal,
we cannot meaningfully address withholding of removal beyond
what is pertinent from our analysis of the asylum claim. We will
therefore remand Huang’s withholding claim for further
consideration in light of this opinion.

32
 We note one final concern with respect to the merits.
The way that the BIA approached its analysis—selecting only
those pieces of evidence that cast doubt on the likelihood of
Huang’s being sterilized—suggests that the BIA was concerned
with whether Huang had demonstrated that forced sterilization
is more likely than not to occur if she is repatriated, when it
should instead have been assessing whether there was a
reasonable possibility of forced sterilization and whether her
fear was objectively reasonable, and thus well founded. In
Cardoza-Fonseca, the Supreme Court, cautioning that the fact
that the fear must be “well-founded” does not “transform the
standard into a ‘more likely than not’ one,” cited the example of
well-founded fear given by a “leading authority”:

Let us . . . presume that it is known that in the
applicant’s country of origin every tenth adult
male person is either put to death or sent to some
remote labor camp. . . . In such a case it would be
only too apparent that anyone who has managed
to escape from the country in question will have
“well-founded fear of being persecuted” upon his
eventual return.

480 U.S. at 431 (quoting 1 A. Grahl-Madsen, The Status of
Refugees in International Law 180 (1966)). The BIA should be
mindful of this distinction in considering the evidence anew on
remand.11

11
The BIA, of course, is not prevented from opening other
avenues of inquiry, if it chooses to remand the case to the IJ.

33
 B. Motion to Remand

Huang also argues that the BIA abused its discretion in
denying her motion to remand for consideration of her new
evidence. The BIA treats a motion to remand for the purpose of
submitting additional evidence in the same manner as motions
to reopen the record. See 8 C.F.R. § 1003.2(c)(4); In re Coelho,
20 I. & N. Dec. 464, 471 (B.I.A. 1992) (“[W]here a motion to
remand is really in the nature of a motion to reopen or a motion
to reconsider, it must comply with the substantive requirements
for such motions.”). The alien must show that the “evidence
sought to be offered is material and was not available and could
not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1). The BIA may deny a motion to reopen
if it determines that “(1) the alien has not established a prima
facie case for the relief sought; (2) the alien ‘has not introduced
previously unavailable, material evidence’; or (3) in the case of
discretionary relief (such as asylum), the alien would not be
entitled to relief even if the motion was granted.” Caushi v.
Att’y Gen., 436 F.3d 220, 231 (3d Cir. 2006) (quoting INS v.
Abudu, 485 U.S. 94, 104-05 (1988)). To establish a prima facie
case for asylum, the alien must produce objective evidence that,
when considered together with the evidence of record, shows a
reasonable likelihood that he is entitled to relief. Guo v.
Ashcroft, 386 F.3d 556, 563 & n.7 (3d Cir. 2004). The BIA
“must actually consider the evidence and argument that a party
presents” and may not summarily dismiss the motion. Zheng v.
Att’y Gen., 549 F.3d 260, 266 (3d Cir. 2008) (quoting Abdulai
v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)). We review the
denial of a motion to remand or to reopen for abuse of
discretion, and “will uphold that determination if it is ‘supported

34
by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Id. (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)).

Huang seeks remand for the IJ to consider the following
new evidence:

(1) Chinese passports and travel documents for her
two children.
(2) Family-planning propaganda, including posters
and a 2006 desk-calendar issued by authorities in
Lang Qi, Fujian Province, describing family-
planning policies, none of which state that
sterilization is mandatory after two births.

(3) A report from DHS following an investigative
officer’s attempts to authenticate certain
documents describing birth control polices in
Fujian Province. The report identifies the
following documents as authentic:

(3a) Two documents issued by the FDFPA
dated January 17, 2007, indicating that the
foreign-born children of Chinese citizens
are not counted under the family-planning
policy unless they are registered as
permanent residents of China.

35
 (3b) A printout from the website of the
National Family Planning Commission,
stating that “Returned Overseas Chinese
are not allowed to have another child,
provided that they have already given birth
to two or more children abroad.”

(3c) Two administrative decisions issued in
2003 by the FDFPA and the Changle City
Family Planning, which state that Chinese
citizens who give birth abroad will be
subject to enforcement of family-planning
regulations once they return home unless
they qualified as permanent residents of
the nation in which their children were
born at the time the birth occurred.

(3d) The July 1999 poster describing birth-
control policies in Changle City.

(4) An affidavit dated November 15, 2007 from
Huang’s mother-in-law, Li Ping Ye, stating that
birth control authorities informed her that Huang
will be required to undergo a sterilization
procedure if she returns to Fuzhou.

(5) A document purporting to be an official
certification issued by Fuzhou family-planning

36
 authorities indicating that Huang will be sterilized
if she returns to Fuzhou.

(6) A statement dated September 2, 2004, from the
Fujian Foreign Affairs Office in response to a
U.S. State Department inquiry indicating that
Fujian family-planning policies were amended in
2002, and that, since then, there has been no
official policy mandating sterilization.

The BIA refused to consider all of this new evidence on the
grounds that it did not qualify as new or material because it was
available at the time of the hearing and was cumulative of other
evidence of record.

We conclude that the BIA properly denied Huang’s
motion to remand with respect to all of the newly submitted
evidence except the certification purportedly issued by Fuzhou
family-planning authorities (Item 5). Much of the supposedly
new evidence was either within Huang’s control at the time of
the IJ proceedings or is duplicative of other parts of the record.
See In re O-S-G-, 24 I. & N. 56, 60 (B.I.A. 2006) (rejecting a
motion to reconsider because it merely reiterated facts and
arguments already in the record). The passport and travel
documents (Item 1) belonging to Huang’s son were in her
possession at the time of the IJ proceedings, and, while she did
not obtain a passport for her daughter until six months after the
IJ issued his decision, she offered the passports only to show
that her children qualify as Chinese citizens, a fact that the
government has never disputed. Both of the 2003 administrative

37
decisions (Item 3c) as well as the Changle City poster (Item 3d)
are not new because they were actually submitted to the IJ prior
to the hearing on Huang’s petition. The September 2, 2004
statement from the Fujian Foreign Affairs Office (Item 6),
which states that China has no official policy requiring
sterilization, and the documents from the FDFPA dated January
17, 2007 (Item 3a), which explain that foreign-born children are
not counted under provincial birth control policy, merely
reiterate what other documents in the record have stated. The
website (Item 3b) indicating that Chinese citizens returning from
abroad may not have children in China if they already have two
children is also redundant of other record materials, and the
content of Li Ping Ye’s affidavit (Item 4) duplicates the in-laws’
letter that was submitted to the IJ. The family-planning
propaganda (Item 2) is not duplicative of other items in the
record, and it may not have been in Huang’s possession before,
but it contains no reference to mandatory sterilization and
therefore has no significant bearing on her asylum rights.

However, the BIA should have given more thorough
consideration to the motion to remand based on the certification
(Item 5) supposedly issued by Fuzhou family-planning
authorities. That document, which is dated November 15, 2007,
was unavailable when the IJ granted Huang asylum in April
2007, and, unlike any other evidence in the record, it purports to
be an official proclamation that Huang will be required to
undergo a sterilization procedure if she returns to China. The
document says it is issued by family-planning authorities in her
husband’s hometown of Fuzhou, a city with which she has
family connections and where she may return once she re-enters
China. The BIA’s own decision reversing the IJ’s grant of

38
asylum underscores the potential importance of the document,
because that decision faulted Huang for failing to produce
“individualized evidence showing that [she] has reason to fear
being singled out for persecution.” (R. at 5.) Thus, at least on
its face, the certification appears to provide precisely the type of
evidence that might alter the BIA’s calculus when reviewing
Huang’s petition. If authentic,12 the certification would thus
constitute new, material evidence that birth-control authorities
in the city where Huang’s family resides may target her for
sterilization, if she returns to the jurisdiction within their
enforcement authority. The BIA’s dismissive treatment of the
certification was inappropriate. See In re J-S-, 24 I. & N. Dec.
520, 539 (Att’y Gen. 2008) (indicating that asylum is available
to individuals who have either been sterilized “or specifically
threatened with such measures” (citation omitted)); accord Shao
v. Mukasey, 546 F.3d 138, 156 (2d Cir. 2008) (observing that
“some Chinese nationals with two or more children might be
able to demonstrate a well-founded fear of future forced
sterilization based on general population control policies without
any evidence of past persecution or threats of persecution to
themselves as individuals”).

12
The authenticity of the certification may well be open to
question, and that question will require more than speculation to
answer. See Lin v. Gonzales, 445 F.3d 127, 134 (2d Cir. 2006)
(stating that the “conclusion that a petitioner’s documents were
fraudulent must be based on more than speculation and
conjecture”). It appears, however, that numerous undisputedly
authentic documents contradict the certification. However,
authenticity is not for us to address in the first instance.

39
 Accordingly, we will vacate the BIA’s denial of the
motion to remand with respect to the certification and will
instruct the BIA to reconsider the motion as to that evidence.
We express no opinion regarding the merit of the motion.

IV. Conclusion

We will vacate the BIA’s order of removal and remand
Huang’s asylum petition to the BIA for consideration in
accordance with this opinion. When considering the petition on
remand, the BIA must also evaluate whether to reopen the
record to permit further consideration of the purported
certification from Fuzhou family-planning authorities indicating
that Huang will be sterilized if she returns to China.

40