J-W-S

Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

In re J-W-S-, Applicant
Decided June 7, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) The evidence of record did not demonstrate that the Chinese Government has a national
policy of requiring forced sterilization of a parent who returns with a second child born
outside of China.

(2) Although some sanctions may be imposed pursuant to local family planning policies in
China for the birth of a second child abroad, the applicant failed to provide evidence that
such sanctions in Fujian Province or Changle City would rise to the level of persecution.
FOR APPLICANT: Kimberly Ellis, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Carol Moore, Assistant Chief
Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:

In a decision dated May 16, 2003, an Immigration Judge granted the
applicant’s request for asylum and withholding of deportation. On
September 14, 2004, we sustained the appeal of the Department of Homeland
Security (“DHS”) and vacated the Immigration Judge’s decision, finding that
the applicant failed to establish eligibility for asylum, withholding of
deportation, or protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened
for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture”). We
subsequently reissued that decision pursuant to an order dated August 30,
2005. This case is now before us on remand from the United States Court of
Appeals for the Second Circuit, which vacated our decision in its January 11,
2006, order. Having further considered the case pursuant to the court’s order,
we will again sustain the DHS’s appeal and order the applicant removed to
China.

185
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

I. FACTUAL AND PROCEDURAL HISTORY
The applicant is a native and citizen of China who arrived in the United
States in 1992 and married here in 1999. He and his wife now have two
United States citizen children born in 2000 and 2002. The applicant contends
that if he is returned to China, the Chinese Government will forcibly sterilize
him or his wife for violating that country’s one-child policy. He also alleges
that they will face fines and will have difficulty registering their children. The
applicant states that he and his wife would like to have more children but that
they would not be permitted to do so in China. Finally, he claims that he will
be harmed because he violated China’s exit laws.
In our previous decisions we found that the applicant failed to demonstrate
that he has an objectively reasonable well-founded fear of sterilization on
account of his opposition to China’s one-child policy if he is removed to
China. We found that the evidence of record did not establish that there was
a national policy regarding the application of the coercive population control
policies to parents of foreign-born children.1 Taking into account the
additional evidence submitted by the applicant with his appeal, we found that
the sanctions or penalties that might be imposed on the applicant or his wife

1
The following documents relevant to the asylum application were admitted into evidence
by the Immigration Judge: (1) Application for Asylum and for Withholding of Removal
(Form I-589); (2) household registration booklets of the applicant and his wife; (3) national
ID cards of the applicant and his wife; (4) notarial birth certificates of the applicant and his
wife; (5) the applicant’s marriage certificate; (6) birth certificates of the applicant’s two
sons; (7) a family photograph; (8) an affidavit and curriculum vitae by John Shields Aird
dated February 16, 2002; (9) Steven W. Mosher, The Long Arm of ‘One-Child’ China,
Wash. Post, Apr. 10, 1988; (10) Newsletter, Association of Chinese Population Students
in America (ASPSA), July 1988; (11) Lauren Martin, Australia: Partner in China
Abortion, The Sydney Morning Herald, May 6, 1999 (obtained from the Foreign
Broadcast Information Service (“FBIS”)); (12) Transcript of “PM,” June 16, 1999;
(13) Penelope Green, Amnesty tags China abortion, The Australian, June 17, 1999;
(14) Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, China Country
Reports on Human Rights Practices–2002 (Mar. 31, 2003), available at
http://www.state.gov/g/drl/rls/hrrpt/2002/18239.htm [hereinafter 2002 Country Reports];
and (15) Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, China:
Profile of Asylum Claims and Country Conditions (Apr. 14, 1998).

186
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

on return to China because of the births of their United States citizen children
would not rise to the level of persecution.2
In its remand order, the court requests that we specifically address all of
the evidence in the record and explain the basis for our conclusion that the
applicant does not have “an objectively well-founded fear of sterilization on
account of his opposition to China’s one-child policy if he is removed to
China.” The court also asks that we address the applicant’s claim in light of

2
During the course of the DHS’s initial appeal to the Board, the applicant submitted an
updated affidavit by John Shields Aird dated January 28, 2004, and the following
documents, in addition to several that had been previously submitted to the Immigration
Judge, as noted above: (1) Guizhou Regulations on Family Planning (July 27, 1998)
(translated by FBIS); (2) Guangdong Province Revised Family Planning Regulations
(Oct. 18, 1998); (3) FBIS summary of the Anhui Provincial Regulations on Family Planning
(June 16, 1999); (4) Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State,
China–Country Conditions and Comments on Asylum Applications 35-37 (Dec. 11, 1995);
(5) Changle City Family Planning Policy Leading Team, Opinions in Administering the
Family Planning Subjects with Early Marriage and Out of Plan Pregnancy (June 27, 1995);
(6) Administrative Decision of the Fujian Province Department of Family-Planning
Administration (2003); (7) Administrative Opinion On Sanctions Against Family-Planning
Violations of the Changle City Family-Planning Board (May 22, 2003); (8) Yu Jianrong,
The Evil Forces in Rural Areas and the Deterioration of Grassroots Administration–A
Survey of the South Area of Hunan (Sept. 3, 2001) (translated by FBIS); (9) Testimony of
Josephine Guy, Director of Governmental Affairs, America 21, before the House Committee
on International Relations (Oct. 17, 2001); (10) PRI Weekly News Briefing (Oct. 26, 2001);
(11) Letter from Retired Ambassador William A. Brown, Ms. Bonnie L. Glick, and Dr.
Theodore G. Tong to the Honorable Colin L. Powell, Secretary of State (May 29, 2002);
(12) Juliet Eilperin, U.S. Withholds $34 Million in Family Planning Funding to UN, Wash.
Post, July 23, 2002; (13) Beijing Mayor Speaks on Family Planning Policy, Beijing Ribeo,
Aug. 23, 1989 (obtained from FBIS); (14) Owen Brown, China Blasts Court Ruling on One
Child Policy, AAP Newsfeed, June 22, 1998; (15) Lin v. INS, No. 01-4113, 2003 WL
22454477 (2d Cir. Oct. 29, 2003) (summary order); (16) PRC Law of Population and Family
Planning (adopted by the 25th meeting of the Standing Comm., Ninth Nat’l People’s Cong.,
Dec. 29, 2001) (translated by FBIS); (17) China’s State Council document on Family
Planning, Xinhua New China News Agency, May 7, 2000; and (18) Report by Qin Jie,
Beijing Xinhua Domestic Service, Hu Jintao Addresses Major National Forum on
Population, Resources, and Environment, Mar. 9, 2003 (translated by FBIS).

187
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

Huang v. U.S. INS, 421 F.3d 125 (2d Cir. 2005).3 Both parties have submitted
briefs and additional documents on remand.4 After further reviewing the
documents of record, we find that the applicant has not demonstrated that he
has a well-founded fear of persecution if removed to China.

II. ANALYSIS

As an initial matter, we note that the applicant does not claim to have
suffered past persecution in China. Rather, his claim is based solely on a fear
of future persecution because of the birth of his United States citizen children,
his desire to have more children, and his illegal departure from China.
Assuming that the applicant has a subjective fear of returning to China, the
question is whether he has met his burden of demonstrating an objectively
reasonable fear of persecution on account of one of the grounds enumerated
in the Immigration and Nationality Act. INS v. Cardoza-Fonseca, 480 U.S.
421 (1987).

3
In Huang v. U.S. INS, supra, the Second Circuit held that an asylum applicant failed to
establish that he had a well-founded fear of forced sterilization or other harm amounting to
persecution under China’s coercive population control program based on the fact that he
fathered two children in the United States.
4
Pursuant to the court’s order, the DHS submitted for consideration on remand a
compilation of documents entitled “Government’s Submission of Evidence for Speculative
PRC Family Planning Claims Arising out of the Birth of Children in the United States.”
These documents include: (1) INS Resource Information Center, Chinese State Birth
Planning in the 1990s and Beyond, Perspective Series, PS/CHN/01.001(Wash. D.C., Sept.
2001); (2) INS Resource Information Center, Treatment of returning peasants and workers
who violated the one-child family planning policy while abroad, Query Series (Wash. D.C.,
June 13, 2002); (3) Country Information and Policy Unit, UK Immigration and Nationality
Directorate, China Country Assessment (Apr. 2002); (4) Letter from Constance A. Johnson,
Senior Legal Research Analyst, The Library of Congress, to Randa Zagzoug, INS Office
of the Deputy District Counsel (May 14, 2001), and accompanying documents; (5) Philip
P. Pan, China’s One-Child Policy Now a Double Standard–Limits and Penalties Applied
Unevenly, Wash. Post, Aug. 20, 2002; (6) H.R. Rep. No. 104-469(I) (1996); (7) Chen v. INS,
195 F.3d 198 (4th Cir. 1999); and (8) Research Directorate, Immigration and Refugee Board
of Canada, REFINFO Series, CHN37335.E (Ottawa, Apr. 19, 2002) (regarding PRC exit
visas). The applicant has submitted the 2005 Department of State country report with his
brief on remand. 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].

188
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

Both parties have submitted numerous documents generally describing
China’s family planning program, including the national “one-child” policy
and the delegation of enforcement to the provincial and local authorities. We
also consider and take administrative notice of recent reports issued by the
United States Department of State. See Yang v. McElroy, 277 F.3d 158, 163
n.4 (2d Cir. 2002). These documents indicate wide variation in the manner
and strictness with which the “one-child” policy is enforced in the various
provinces.5 Although the applicant’s asylum application indicates that he
resided in Fujian Province, Changle City, the applicant has not argued in his
brief that the “one-child” policy is more strictly enforced in this province or
locality than in other areas of China, or that he would necessarily have to
return to Fujian Province. Rather, he presents a generalized argument that he
would be considered to have violated the “one-child” policy and would be
subjected to sterilization or other harm amounting to persecution were he to
be returned to China.
The applicant relies on affidavits by demographer John Shields Aird from
2002 and 2004, which take issue with the assessments in the State
Department’s documents regarding the application of China’s family planning
policies to returning parents of foreign-born children. As we observed in
Matter of C-C-, 23 I&N Dec. 899 (BIA 2006), the Aird affidavits are not
based on personal knowledge of conditions in China, but rather on a review
of documents concerning events and practices in that country. In that regard,
the affidavits provide only generalized statements that Chinese citizens who
entered the United States illegally would be subject to the same punishments
that apply to Chinese couples who violate the family planning laws in China.
The affidavits refer to an incident in 1988 when a Chinese couple living
abroad asked for permission to give birth to a second child and was told by
family planning officials that their unauthorized child could jeopardize their
factory’s plans for expansion and result in punishment to the workforce. See

5
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
2005 Country Reports, supra. 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 (May 2007); 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). 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.

189
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

The Long Arm of ‘One-Child’ China, supra note 1 (included as an attachment
to both of the Aird affidavits). The affidavits and accompanying documents,
however, refer to no incidents of forced sterilization of parents who return to
China with children born abroad.
In regard to the punishments imposed for violation of population control
policy, the country report from 2006 states the following:
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. While we recognize that there have been
isolated reports of forced sterilization in the documents of record, such
occasional incidents do not indicate that the applicant would be singled out for
this treatment upon his return to China. Nor do they demonstrate a pattern or
practice of persecution that would provide the applicant a basis for a well-
founded fear of persecution in China on account of the birth of two children
in the United States while he was outside of China for nearly 15 years.
8 C.F.R. § 1208.13(b)(2)(iii)(A) (2007).
The most recent State Department document examining Chinese country
conditions as to coercive population planning policies indicates that by
national regulation, children born overseas are “not . . . counted” for birth
planning purposes when the parents return to China. Bureau of Democracy,
Human Rights, and Labor, U.S. Dep’t of State, China: Profile of Asylum
Claims and Country Conditions 30 (May 2007) [hereinafter 2007 Profile].
In fact, the 2007 Profile states that “a person born in the United States to
Chinese parents who enters China on a U.S. passport . . . will be regarded as

190
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

a U.S. citizen.” Id. Contrary to the applicant’s contention, the Profile from
2005 confirms that American diplomats in China are unaware of “any cases
in which returnees from the United States were forced to undergo sterilization
procedures on their return.” Bureau of Democracy, Human Rights, and Labor,
U.S. Dep’t of State, China: Profile of Asylum Claims and Country Conditions
28 (Oct. 2005) [hereinafter 2005 Profile]. This conclusion is consistent with
reports on China’s population control policy from other governments.6
The evidence of record suggests that if a returnee who has had a second
child while outside of China is penalized at all upon return, the sanctions
would be fines or other economic penalties. 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). For example, the 2007
Profile states that “sanctions and economic penalties” levied on parents of
children born abroad could include increased costs for education and other
social benefits, which would not be provided free to children who are not
Chinese nationals. 2007 Profile, supra, at 30. Also, the September 2001 INS
Resource Information Center (“RIC”) report, Chinese State Birth Planning in
the 1990s and Beyond, provides that overseas Chinese are largely exempt
from the coercive population control policies and can return to China with a
pregnancy or a child born abroad without being penalized. See supra note 4.
Additionally, the June 2002 RIC article, Treatment of returning peasants and
workers who violated the one-child family planning policy while abroad,
provides that “in general, the use of fines rather than more extreme punitive
measure seems to be the norm in China [for returning workers and peasants].”
See supra note 4. In that regard, the June 22, 1998, article entitled China
Blasts Court Ruling on One Child Policy indicates that the Chinese
Government denies charges that Chinese citizens and nationals who return
home with foreign born children are persecuted. See supra note 2. Moreover,
the article further notes that two-thirds of Chinese women have two or more
children.

6
A recent report from Canada does not refer to any instances of forced
sterilizations of Chinese citizens who were returning to China with a child who had
been born abroad. See Research Directorate, Immigration and Refugee Board of Canada,
China: Penalties faced by couples returning from overseas who are in
violation of family planning regulations (2001-2005) (Ottawa, Aug. 25, 2005),
http://www.irb-cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=4
49481. We have authority to take administrative notice of this report. See 8 C.F.R.
§ 1003.1(d)(3)(iv) (2007); see also Yang v. McElroy, 277 F.3d 158, 163 n.4 (2d Cir. 2002).

191
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

Having considered all of the relevant evidence, we find that the State
Department reports are more persuasive than the Aird affidavit in
determining the chances that the applicant will be sterilized if he returns to
China. See Wang v. BIA, 437 F.3d 270, 276 (2d Cir. 2006) (noting that “a
balancing of the 2004 Country Report against the Aird affidavit’s criticism of
that report . . . would lead to the conclusion . . . that [the alien] has not shown
he would face anything more than economic sanctions if returned to China”).
We therefore find that the evidence of record does not demonstrate that the
Chinese Government has a national policy of requiring forced sterilization of
parents who return with a second child born outside of China.
Although the applicant has not argued that he would be subjected to a
stricter family planning regime in Fujian Province than that which is generally
applied in China, we will separately consider the documents in the record that
discuss enforcement in Fujian Province and Changle City. See Shou Yung
Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006) (remanding for consideration
of documents regarding family planning enforcement efforts in Fujian
Province). Two of the documents referred to in Shou Yung Guo were
included as attachments to the 2004 Aird affidavit submitted by the applicant:
(1) a 2003 Administrative Decision from the Fujian Province Department of
Family-Planning Administration and (2) a May 22, 2003, Administrative
Opinion On Sanctions Against Family-Planning Violations from the Changle
City Family-Planning Board. See supra note 2. These documents respond to
an inquiry by a government employer in regard to the appropriate sanctions
to be applied to an employee whose spouse had given birth to a second child
while visiting in the United States. Both documents conclude that the
employee in question and his spouse violated the family planning law and
recommend that proper sanctions be considered in compliance with provincial
regulations, as well as regulations specific to Communist Party members and
state employees. Neither document refers to sterilization, much less forced
sterilization.
A third document attached to the 2004 Aird Affidavit, which is dated
June 27, 1995, and provides opinions on out-of-plan pregnancy of the
Changle City Family Planning Policy Leading Team, states that “subjects”
who give “out-of-plan birth . . . must be imposed with sterilization
operation.”7 See supra note 2. However, assuming this policy remains in
place, the applicant has not provided evidence that it is implemented through
physical force or other means that would amount to persecution. Policies in

7
Although not included in this record, a July 1999 Q&A for Changle City Family-Planning
Information Handbook, which is referenced in Shou Yung Guo v. Gonzales, supra, at 113,
also states that sterilization is mandatory following the birth of a second child.

192
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

many countries, even those enacted into law, remain unenforced for lack of
resources or political will. Moreover, central government policy prohibits
physical coercion to compel persons to submit to family planning
enforcement.8
The most recent State Department Profile also undermines the applicant’s
argument that Fujian Province is particularly likely to harshly punish returning
Chinese citizens accompanied by “unauthorized” children born overseas. The
2007 Profile states the following:
As to Fujian Province, in response to an inquiry by the U.S. Consulate General in
Guangzhou, the Population and Family Planning Commission of Fujian Province
stated in an October 2006 letter that children born abroad, if not registered as
permanent residents of China (i.e., not entered into the parents’ household
registration), are not considered as permanent residents of China, and therefore are
not counted against the number of children allowed under China’s family planning
laws.

2007 Profile, supra, at 30 (referencing a letter attached as Appendix C).
Enforcement efforts in Fujian Province, in particular, have in the past been
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). Similarly, the 2005 Profile describes a “wide variation” in Fujian

8
The 2002 Country Reports, supra, state the following in regard to that policy:

Central government policy formally prohibits the use of physical coercion to compel
persons to submit to abortion or sterilization. However, intense pressure to meet birth
limitation targets set by government regulations has resulted in instances in which local
birth planning officials reportedly have used physical coercion to meet government
goals. Because it is illegal, the use of physical coercion was difficult to document,
even for government authorities. Still, it was believed that some isolated incidences
may persist, even as the frequency of such cases was believed to be declining. One
documented case in 2000 resulted in the arrest and punishment of the involved
officials.

The report further notes that “[s]enior officials stated repeatedly that the Government
‘made it a principle to ban coercion at any level,’ and the SFPC [State Family Planning
Commission] has issued circulars nationwide prohibiting birth planning officials from
coercing women to undergo abortions or sterilization against their will.” Id.; see also 2006
Country Reports, supra.

193
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

Province with regard to “social compensation fees” for “out-of-plan” births.9
2005 Profile, supra, at 25. 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, in 2006, State Department interviews with visa
applicants from Fujian Province yielded “no evidence” of forced abortions.
2007 Profile, supra, at 27. The 2002 United Kingdom Immigration and
Nationality Directorate report, China Country Assessment, also concludes that
Fujian Province is generally lax in implementing population control policies.
See supra note 4; see also Huang v. U.S. INS, supra, at 128 (concluding from
the evidence that Fujian Province had a relatively lax family-planning policy,
particularly when the first child was a daughter). Although the applicant in
this case had two sons within 2 years and the first child of the applicant in
Huang was a daughter born more than 4 years prior to the second child, these
differences do not provide an objective basis for finding that the applicant has
demonstrated a well-founded fear of persecution. The court in Huang
ultimately approved our finding that “‘couples returning to China with more
children than they would have been permitted at home are ‘at worst, given
modest fines,’” when that conclusion was not contradicted by other evidence
presented by the applicant. Huang v. U.S. INS, supra, at 129.
Upon review of all of the evidence contained in the record of proceeding,
we find that there is insufficient evidence to indicate that the applicant has
an objectively reasonable well-founded fear of sterilization on account of his
opposition to China’s one-child policy if he is removed to China. INS v.
Cardoza-Fonseca, supra; Huang v. U.S. INS, supra, at 129 (“In the absence
of solid support in the record for [an applicant’s] assertion that he will be
subjected to forced sterilization, his fear is speculative at best.”). At most, the
evidence contained in the record of proceedings suggests that the applicant
and his wife may face “sanctions and penalties” upon returning to China
because of the births of their United States citizen children. The evidence,
however, fails to establish that any sanctions imposed on parents of foreign-
born children would rise to the level of persecution. Id. Whether the
applicant and his wife will have other children in China is merely speculative
at this point.
With regard to the issue of the applicant’s illegal departure from China,
we note that he has not raised this issue in his brief on remand from the
Second Circuit. In any case, we agree with the Immigration Judge’s findings

9
In fact, the 2005 Profile details examples of fines imposed in Fujian Province on couples
with four or five children. By its nature, this evidence tends to undermine the applicant’s
claim that his fear of sterilization after having two children is well founded.

194
Cite as 24 I&N Dec. 185 (BIA 2007) Interim Decision #3566

that the applicant does not face persecution on account of one of the grounds
enumerated in the Act based on his illegal departure from China. See Matter
of Sibrun, 18 I&N Dec. 354, 359 (BIA 1983). The most recent evidence in
the record addressing this issue provides that “[p]ersons who were trafficked
from the country and then repatriated sometimes faced fines for illegal
immigration upon their return; after a second repatriation, such persons could
be sentenced to a term in a reeducation-through-labor camp.” Bureau of
Democracy, Human Rights, and Labor, U.S. Dep’t of State, China Country
Reports on Human Rights Practices–2002 (Mar. 31, 2003), available at
http://www.state.gov/g/drl/rls/hrrpt/2002/18239.htm. Since the applicant has
not illegally departed China more than once, the evidence suggests that he
may face a fine for departing without permission upon return. Accord 2007
Profile, supra, at 31. A fine for illegal departure would not amount to
persecution under the Act or torture as envisioned by the Convention Against
Torture. 8 C.F.R. § 1208.16 (2007).

III. CONCLUSION

In sum, we find that the applicant has failed to meet his burden of proving
eligibility for asylum, withholding of deportation, or protection under the
Convention Against Torture. Accordingly, the DHS’s appeal will be
sustained, the decision of the Immigration Judge will be vacated, and the
applicant will be ordered deported to China.
ORDER: The appeal of the Department of Homeland Security is
sustained.
FURTHER ORDER: The decision of the Immigration Judge is reversed.
FURTHER ORDER: The applicant is ordered deported to China.

195