United States Court of Appeals
For the First Circuit
No. 08-2041
ZHOU ZHENG,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Torruella, Selya and Tashima,**
Circuit Judges.
Stephanie F. Dyson and Dyson Law, P.C. on brief for
petitioner.
Michael F. Hertz, Acting Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, and Siu P. Wong,
Trial Attorney, Office of Immigration Litigation, on brief for
respondent.
June 30, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as the respondent.
**
Of the Ninth Circuit, sitting by designation.
SELYA, Circuit Judge. The petitioner, Zhou Zheng, is a
Chinese national. She seeks judicial review of a final order of
the Board of Immigration Appeals (BIA) that affirmed both an order
of removal and the concomitant denial of a cross-application for
asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (CAT). Concluding, as we do,
that the BIA's decision is supported by substantial evidence, we
deny the petition for judicial review.
The facts are straightforward. The petitioner entered
the United States illegally in December of 1998. While living in
Massachusetts, she married and bore two children (one in 2002 and
the other in 2005).
On January 12, 2005, the petitioner applied for asylum
and withholding of removal.1 Following an asylum interview,
federal authorities denied her application and referred the matter
of her status to the immigration court. See 8 U.S.C.
§ 1227(a)(1)(B). Removal proceedings began.
The petitioner appeared in the immigration court on
October 24, 2006. She conceded removability but cross-applied for
asylum, withholding of removal, and protection under the CAT.
1
An alien ordinarily must file for asylum within one year of
her arrival in the United States. See 8 U.S.C. § 1158(a)(2)(B);
Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007). Here, however,
the immigration judge found that the petitioner qualified for the
"extraordinary circumstances" exception to this rule. See 8 U.S.C.
§ 1158(a)(2)(D). The respondent has not challenged that
determination.
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The petitioner testified that, even though she was unwed
and had no children at the time, she left China in order to avoid
that country's repressive family planning restrictions. Now that
she had two children, she feared that a return to her homeland
would lead either to forcible sterilization or some disadvantage to
her children. In support, the petitioner presented affidavits from
several family members who claimed to have been subjected to
involuntary abortions or sterilization. In this regard, the
petitioner testified that her mother was forcibly sterilized
following the birth of her third child twenty-five years earlier.
She added, through testimony and other evidence, that her cousin's
wife was sterilized in 1986 after having two children; that a
different cousin's wife was sterilized in 2004 after having two
children; that her sister-in-law's husband was forcibly sterilized
in 1997 after siring two children;2 and that her sister was forced
to undergo an abortion in 2000. Finally, the government introduced
a 2005 State Department country conditions report (2005 Profile).
This compendium of evidence did not impress the
immigration judge (IJ). In his view, the petitioner had
established a genuine fear of forced sterilization, but she had
failed to establish that this subjective fear was objectively
2
All of the children mentioned in this paragraph were born in
China.
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reasonable. Consequently, the IJ denied the petitioner's requests
for relief and ordered her removal.
The petitioner appealed to the BIA, arguing that the 2005
Profile showed that Chinese citizens returning to their homeland
were given "no special treatment" in terms of family planning
policies. She also argued that simply because American diplomats
were "unaware" of any forced sterilizations imposed upon returnees
with children born in the United States did not mean that such
incidents did not occur.
The BIA affirmed the IJ's decree in all respects. It
held that the petitioner had not presented "specific and
individualized evidence" sufficient to show that she would likely
be forced to undergo sterilization either in China generally or in
her hometown of Changle City (in Fujian Province) specifically. It
further held that the petitioner had not shown that "any economic
sanctions that may be imposed on her would rise to the level of
persecution."
This timely petition for judicial review followed. We
have jurisdiction under 8 U.S.C. § 1252(a)(1).
In removal cases, judicial review ordinarily focuses on
the decision of the BIA. Stroni v. Gonzales, 454 F.3d 82, 86 (1st
Cir. 2006). That approach obtains when the BIA has conducted an
independent evaluation of the record and rested its decision on a
self-generated rationale. See Acevedo-Aguilar v. Mukasey, 517 F.3d
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8, 9 (1st Cir. 2008). This is such a case. The devoir of
persuasion abides with the petitioner. See Pulisir v. Mukasey, 524
F.3d 302, 308 (1st Cir. 2008); see also 8 U.S.C. § 1158(b)(1); 8
C.F.R. § 208.13(a).
The applicable standard of review is the familiar
substantial evidence standard. See, e.g., Sok v. Mukasey, 526 F.3d
48, 52 (1st Cir. 2008). Absent an error of law,3 this "highly
deferential" standard results in a reversal only if the record
would compel a reasonable factfinder to reach a different outcome.
López de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007);
see Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir. 2007). In
conducting this tamisage, a reviewing court accepts the findings of
fact on which the agency's determination rests so long as those
findings are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992).
To establish eligibility for asylum, an alien must
demonstrate either past persecution or a well-founded fear of
future persecution due to race, religion, nationality, membership
in a particular social group, or political opinion. See 8 U.S.C.
§ 1101(a)(42)(A); 8 C.F.R. § 208.16(b)(2); see also Rivas-Mira v.
3
"Abstract legal propositions are reviewed de novo, with some
deference to the agency's reasonable interpretation of statutes and
regulations within its ken." Chhay v. Mukasey, 540 F.3d 1, 5 (1st
Cir. 2008). There is no error of law apparent here.
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Holder, 556 F.3d 1, 4 (1st Cir. 2009). Because the petitioner does
not claim to have been the victim of past persecution, she must
prove that she has a well-founded fear of future persecution based
on one of the five statutorily protected grounds enumerated above.
See 8 U.S.C. § 1158(b)(1); see also Makhoul v. Ashcroft, 387 F.3d
75, 79 (1st Cir. 2004).
Proof of a well-founded fear entails a showing that the
fear is both subjectively felt and objectively reasonable. Jiang
v. Gonzales, 474 F.3d 25, 30 (1st Cir. 2007). A well-founded fear
of forced abortion or sterilization is considered a qualifying fear
of persecution based on political opinion. 8 U.S.C. § 1101(a)(42);
Xie Mei Zheng v. Gonzales, 475 F.3d 30, 34 (1st Cir. 2007).
The BIA concluded that the petitioner had not proven that
she had this well-founded fear of future persecution. The
petitioner demurs; she offers several reasons why the BIA's
conclusion was unsupported by substantial evidence. To her way of
thinking, the BIA misinterpreted the 2005 Profile, failed to give
adequate weight to precedent, and abused its discretion in
referring to the State Department's 2007 country conditions report
(2007 Profile) without pausing to take administrative notice
thereof. We examine these claims sequentially.
In support of her contention that the BIA did not
properly weigh the evidence, the petitioner relies heavily on the
unpublished decision in Cao v. Bureau of Citizenship and
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Immigration Services, 272 F. App'x 14 (2d Cir. 2008). In that non-
precedential opinion, see 2d Cir. R. 32.1(b), the court of appeals
remanded because the BIA had "mischaracterized" the 2005 Profile,
Cao, 272 F. App'x at 15. But Cao is, at best, only tangentially
relevant to the case at hand. The BIA's error there was case-
specific, and the court of Cao's origin — the Second Circuit —
subsequently concluded that the 2005 Profile furnishes no concrete
evidence that sterilization is forced upon citizens returning to
Fujian Province with American-born children. See Shao v. Mukasey,
546 F.3d 138, 164 (2d Cir. 2008) (noting that "[t]he significance
of the [2005] report is highlighted by the fact that, despite the
voluminous documentary records developed in these . . . cases, none
of the petitioners points us to evidence of any person being
forcibly sterilized on removal to China based on having two
children"); see also Huang v. U.S. INS, 421 F.3d 125, 128-129 (2d
Cir. 2005).
More importantly, the significance of Cao pales in
comparison to our own circuit precedent (which is, of course,
binding on this panel). We recently adjudicated a petition for
review embodying facts nearly identical to those presented here.
See Yen Zheng Zheng v. Mukasey, 546 F.3d 70 (1st Cir. 2008).
Zheng, not Cao, is the beacon by which we must steer. See United
States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) (explaining
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that, within a multi-panel circuit, panels ordinarily are bound by
prior panel decisions closely on point).
Zheng, like this case,4 involved a Chinese woman from
Fujian Province who was the mother of two American-born children.
546 F.3d at 71. There, as here, the alien claimed a well-founded
fear of future persecution in the form of forced sterilization.
Id. at 72. There as here, she alleged that the BIA had misread the
country conditions reports. Id. at 72-73. There, as here, the
alien relied mainly on anecdotal evidence to support her claim.5
Id. at 72. The BIA denied relief and affirmed an order of removal.
We upheld that decision, ruling that nothing in the record
compelled a contrary conclusion. Id. at 73.
The petitioner labors to distinguish Zheng. Her most
loudly bruited claim is that the case arose in a different
procedural posture; the alien was seeking an order for
reinstatement of her appeal. See id. at 71; see also Liu v.
Mukasey, 553 F.3d 37, 39 n.1 (1st Cir. 2009) (discussing standard
of review for reinstatement of appeal). That is true, but it is
only half of the story. In Zheng, the court found expressly that
4
The two cases are about two different (unrelated) women who
happen to share the same name.
5
By and large the evidence presented there was stronger than
that presented here. For example, it included documents from
Fujian Provincial Population and Family Planning Commission and an
affidavit from an expert on Chinese population control policy.
Zheng, 546 F.3d at 71. No comparable evidence was tendered in this
case.
-8-
the alien had not "establish[ed] a prima facie case for the
[granting of asylum]." 546 F.3d at 73. This was so, the court
explained, because the evidence did not call into legitimate
question the BIA's determination that, among other things, she
lacked a well-founded fear of future persecution. Id.
This finding makes Zheng directly relevant to the instant
case. It is clear from Zheng, as we said in our earlier case, that
when an alien has adduced nothing more than "background information
[that does] not in any way shed light on this individualized
issue," nothing compels a reviewing court to overturn the decision
of the BIA. Chhay v. Mukasey, 540 F.3d 1, 8 (1st Cir. 2008). That
principle applies four-square in the instant case.
The petitioner's other effort to distinguish Zheng is
equally unavailing. That effort centers on a boast that her proof
is more cogent because, unlike in Zheng, she corroborated her
anecdotal evidence of coercive family planning tactics. This
rodomontade misses the point: the petitioner's corroborating
evidence does not verify her asseveration that returnees with
American-born children are routinely subjected to coercive family
planning practices. Consequently, that evidence is of limited
utility. See Lin v. Holder, No. 07-1853, 2009 WL 1220783, at *5-6
(4th Cir. May 6, 2009) (unpublished).
This brings us to the petitioner's second claim of error:
that the BIA turned a blind eye to precedent. In this regard, the
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petitioner relies on three cases: Cao, Li v. U.S. Atty. Gen., 488
F.3d 1371 (11th Cir. 2007), and Yang v. Gonzales, 427 F.3d 1117
(8th Cir. 2005). This reliance is mislaid.
The fundamental flaw in the petitioner's position is that
the cited cases, whether viewed singly or in combination, do not
usurp the primacy of this court's opinion in Zheng. See Wogan, 938
F.2d at 1449. To cinch matters, none of the cited cases is
materially similar to this case.
We previously have distinguished Cao and need not
repastinate that ground. Thus, we start with Li, which involved a
petition to review the denial of a motion to reopen. The Eleventh
Circuit's decision turned on the alien's proffer of specific
evidence anent family planning practices in her village. 488 F.3d
at 1375. So too in Yang; the court granted relief based on
particularized evidence demonstrating that Yang's and her husband's
families had been specifically targeted by government hierarchs for
forced sterilization and abortions. 427 F.3d at 1121-22.
Evidence such as that presented in Li and Yang is
conspicuously absent from the record here. The absence of such
evidence makes a dispositive difference.
The petitioner's final argument is different in
character. As said, the BIA based its decision to deny asylum on
information contained in the 2005 Profile and the absence of any
specific evidence showing that Chinese repatriates with American-
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born children were being forcibly sterilized or otherwise
persecuted. But the BIA also mentioned the 2007 Profile in a
footnote without formally taking administrative notice of that
report (which had not been offered into evidence before the IJ).
The petitioner asserts that the BIA's decision must be set aside
because its actions in this respect offend due process.
We review a procedural due process claim of this type de
novo. See, e.g., Pulisir, 524 F.3d at 311; Teng v. Mukasey, 516
F.3d 12, 17 (1st Cir. 2008). To prevail, a complainant must, among
other things, show prejudice. Pulisir, 524 F.3d at 311. In this
context, prejudice equates with a showing that "an abridgement of
due process is likely to have affected the outcome of the
proceedings." Id.
Admittedly, it would have been preferable for the BIA
either to have eschewed any mention of the 2007 Profile or to have
taken administrative notice of it. Despite the BIA's bevue,
however, there was no apparent harm. The 2005 Profile and the 2007
Profile do not differ materially in content, see Cao, 272 F. App'x
at 16 (terming the 2005 and 2007 Profiles "largely repetitive"),
and the former document was properly before the BIA. In any event,
the 2007 Profile had nothing to do with, and thus could not have
affected the BIA's evaluation of, the petitioner's individualized
situation.
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Under these circumstances, we conclude, without serious
question, that the error neither prejudiced the petitioner nor
affected the outcome of the proceeding. Accordingly, it affords no
principled basis for setting aside the BIA's decision. See Shao,
546 F.3d at 168.
That ends this aspect of the matter. Because the BIA
gave consideration to the evidence as a whole, made supportable
findings, sufficiently explained its thought process, and committed
no prejudicial error in the handling of the evidence, its decision
to deny the application for asylum is perforce supported by
substantial evidence. See Chhay, 540 F.3d at 8; Pan, 489 F.3d at
87.
Given this holding, the petitioner's entreaty that we
reverse the BIA's decision to deny withholding of removal is easily
dispatched. To succeed on that claim, the petitioner had to
establish that, if repatriated, she would more likely than not face
persecution on account of a statutorily protected ground. 8 U.S.C.
§ 1231(b)(3)(B)(i). This standard is more demanding than the
standard for asylum. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d
120, 123 (1st Cir. 2005); Makhoul, 387 F.3d at 82. It follows
inexorably that because the petitioner's asylum claim fails, her
withholding of removal must fail as well.
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We need go no further.6 For the reasons elucidated
above, we deny the petition for judicial review.
So Ordered.
6
The petitioner withdrew her CAT claim in her reply brief.
Thus, we have no occasion to address that claim.
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