Cui Hua Li v. Attorney General of the United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 12-2925
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CUI HUA LI,
Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent

____________________________________

On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-813-593)
Immigration Judge: Honorable Dorothy A. Harbeck
____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)
May 22, 2013
Before: SCIRICA, VANASKIE and COWEN, Circuit Judges

(Opinion filed: May 23, 2013)
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OPINION
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PER CURIAM

Cui Hua Li (“Li”) petitions for review of the Board of Immigration Appeals‟

(“BIA” or “Board”) dismissal of her appeal and denial of her motion to remand. For the

following reasons, we will deny the petition for review.
 I.

Li is a citizen of China from Fujian Province who entered the United States

without inspection. In February 2008, she filed applications for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”), alleging persecution

under China‟s coercive population control policies. In particular, Li alleged that upon her

return to China, she would be forcibly sterilized because she is the mother of two children

born in the United States. Following a hearing, an Immigration Judge (“IJ”) denied

relief, determining that Li did not have an objectively reasonable fear that she would be

forced to undergo sterilization if she returned to China. In June 2012, the BIA dismissed

Li‟s appeal, noting that Li “did not meet her burden of establishing that she has a well-

founded fear of persecution in China.” The BIA also denied Li‟s motion for remand.

This petition for review followed.1

II.

We review the BIA‟s order of removal, but we may look to the IJ‟s decision to the

extent that the BIA affirmed her conclusions. See Sandie v. Att‟y Gen., 562 F.3d 246,

250 (3d Cir. 2009). We review factual findings for substantial evidence. See Chavarria

v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Under this standard, we must uphold

those findings “unless the evidence not only supports a contrary conclusion, but compels

it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). We review the BIA‟s

1
We have jurisdiction to review the BIA‟s final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1).
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denial of a motion to remand or to reopen for abuse of discretion only. See Huang v.

Att‟y Gen., 620 F.3d 372, 390 (3d Cir. 2010).

III.

A. Denial of Applications for Relief

If an alien cannot establish past persecution, she must demonstrate a well-founded

fear of future persecution to obtain asylum. See Chavarria v. Gonzalez, 446 F.3d 508,

515-16 (3d Cir. 2006) (citing 8 U.S.C. § 1101(a)(42)). To make this showing, an alien

must “demonstrate a subjective fear that is supported by objective evidence that

persecution is a reasonable possibility.” Yu v. Att‟y Gen., 513 F.3d 346, 348 (3d Cir.

2008) (internal quotation marks and citation omitted). Li attempted to meet this burden

by proving that she would be individually singled out for persecution. See Wong v. Att‟y

Gen., 539 F.3d 225, 232 (3d Cir. 2008).

Li first alleges that the BIA erred by assigning minimal weight to documents from

two village committees stating that an individual like her would be sterilized upon return

to China. The BIA questioned these documents because they were photocopies that did

not identify the author, were not authenticated, and were obtained for purposes of the

hearing. Li asserts that these documents “bear . . . indicia of reliability” in the form of an

official stamp and that their “chain of custody” is established by her mother and mother-

in-law‟s letters. However, the seals are nearly illegible, and the letters make no mention

of mailing these village committee documents to Li. In these circumstances, it was

permissible for the BIA to give the documents relatively little weight. See Chen v. Att‟y
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Gen., 676 F.3d 112, 117 (3d Cir. 2011); see also Lin v. Att‟y Gen., 700 F.3d 683, 686-88

(3d Cir. 2012).

Li further asserts that the BIA should have given greater weight to her evidence

concerning forced sterilizations performed on her family members and other women who

returned to China after having children abroad. The BIA plausibly discounted the letters

from Li‟s mother and her husband‟s aunts regarding their sterilizations because the

women were not similarly situated to her; their children, unlike Li‟s, were not United

States citizens. See Lin v. Holder, 620 F.3d 807, 810 (7th Cir. 2010). Li also submitted

evidence from two women who claimed to be forcibly sterilized after returning to China

with children born in Japan and Singapore; however, these women were also not

similarly situated to Li. All in all, the BIA reasonably concluded that the evidence did

not support Li‟s contention that her children would be counted against her under the

applicable family planning policies. Indeed, Li conceded in her testimony that she did

not personally know any women who were forcibly sterilized after returning to China

with children born in the United States.

Li further asserts that the agency ignored self-authenticating evidence from a

Fujian government website. However, the Federal Rules of Evidence, which she cites, do

not apply in asylum proceedings. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.

2003). Nevertheless, it was permissible for the BIA to give little weight to this evidence,

as the website makes no mention of forcible sterilization.

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 Finally, Li argues that the BIA failed to consider her background evidence

regarding quotas for forcible sterilizations and abortions in Chang Le City and Lianjiang

County, as well as the local application of the family planning policy in other areas of

Fujian Province. The Board discounted this evidence after determining that it was similar

to evidence it addressed in Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), and Matter

of J-H-S-, 24 I. & N. Dec. (BIA 2006). We agree with Li that much of this evidence

post-dates those decisions. However, the BIA reasonably determined that this evidence

did not concern current country conditions, did not relate to individuals similarly situated

to Li, or did not relate to policies in Fujian Province. Notably, the Board reasonably

concluded that the record as a whole reflects that physical coercion is uncommon and

unsanctioned.

The 2007 United States Department of State Profile of Asylum Claims and

Country Conditions for China (“2007 Profile”) indicates that although China continues to

enforce its family planning regulations, it does not use measures such as forcible

sterilization on Chinese couples who return to China with two children born abroad. See

Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. at 214. We have described Matter of H-L-

H- & Z-Y-Z- as “comprehensive” and “persuasive,” Chen, 676 F.3d at 114, and have

noted its conclusion that “physical coercion to achieve compliance with family planning

goals is uncommon and unsanctioned by China‟s national laws and . . . the overall policy

is much more heavily reliant on incentives and economic penalties,” id. at 115 (internal

quotation marks omitted). Indeed, much of the evidence Li submitted indicates that
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physical coercion is uncommon and that Fujian‟s overall policy is more heavily reliant on

economic incentives and penalties. See Zubeda v. Ashcroft, 333 F.3d 463, 478 (3d Cir.

2003) (noting that State Department reports are “the most appropriate and perhaps the

best resource” regarding political situations). Although Li argued that she would face an

onerous fine for violating family planning policies, the record supports the BIA‟s

determination that Li had not shown that she would be unable to pay the fine and that

enforcement of such fines in Fujian Province has been “lax” and “uneven.” Given all

this, the evidence in the record does not compel a conclusion that Li has an objectively

reasonable fear of forcible sterilization.

B. Denial of Motion to Remand

“The BIA treats a motion to remand for the purpose of submitting additional

evidence in the same manner as motions to reopen the record.” Huang, 620 F.3d at 389.

Furthermore, a petitioner‟s motion to reopen must establish prima facie eligibility for

asylum. See Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004). This requires “the

applicant to produce objective evidence showing a „reasonable likelihood‟ that he can

establish [that he is entitled to relief].” Id. (quoting Sevoian v. Ashcroft, 290 F.3d 166,

175 (3d Cir. 2002)).

Li first alleges that the Board abused its discretion by failing to address her

argument that neither the 2007 Profile nor the State Department‟s responses to her FOIA

requests yielded any evidence of a law or policy barring coercion in Fujian. However,

the BIA specifically mentioned that the response to her FOIA requests indicates that a
6
policy of coercion is still implemented in China. See Filja v. Gonzalez, 447 F.3d 241,

256 (3d Cir. 2006) (quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000) (internal

quotations omitted)) (the BIA “is not required to „write an exegesis on every

contention.‟”).

Li further argues that the BIA erred by finding that several of the documents

submitted in support of her motion related to localities other than hers and her husband‟s

and by discounting her documents as “very generalized.” We note, as an initial matter,

that the Board correctly determined that several of these documents pre-dated Li‟s

hearing before the IJ and therefore could have been presented then. See 8 U.S.C. §

1003.2(c)(1). Furthermore, while we agree that some of Li‟s exhibits provide details

regarding family planning campaigns in Lianjiang County, Changle City, and Jin Feng,

her husband‟s county, locality, and town, the Board reasonably determined that none of

them supported Li‟s assertion that coercion rising to the level of persecution is employed

against nationals who return to China with two or more children who are United States

citizens.

Finally, we conclude that the BIA did not abuse its discretion when it rejected Li‟s

argument that the 2007 Profile is not entitled to special deference because it was written

by a contractor rather than the State Department. In support, Li submitted a FOIA

request from “Richard Tarzia” and a reply letter from the State Department with enclosed

documents showing that “Neil E. Silver” was paid to update the 2007 Profile by

researching various types of asylum cases. However, the BIA reasonably concluded that
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this evidence did not show that the State Department did not stand behind the work done

for the 2007 Profile.

IV.

Based on a thorough review of the record, we conclude that Li failed to meet her

burden of demonstrating an objectively reasonable possibility of sterilization should she

return to China; the evidence in the record does not compel a conclusion contrary to that

of the BIA. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). Because Li did not

meet the standard for obtaining asylum, she also failed to satisfy the “higher burden of

proof” required for withholding of removal. Chen, 676 F.3d at 117. Nor have we found

any reason to disturb the BIA‟s denial of CAT relief. For the foregoing reasons, we will

deny the petition for review.

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