Lian Ying Zhang v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4563
LIAN YING ZHANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A099-605-209)
Immigration Judge: Honorable Margaret R. Reichenberg
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 18, 2009
Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges
(Opinion filed: January 6, 2010)
OPINION
PER CURIAM
Lian Ying Zhang petitions for review of the October 27, 2008 decision of the
Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final

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Zhang gave birth to her daughter, Zoe Chen, in 2006.1
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order of removal. For the reasons that follow, we will deny her petition for review.
Zhang, a native and citizen of China, entered the United States without inspection
in April 2000. In 2005, when she was pregnant with her second child, Zhang applied for
asylum, withholding of removal and relief under the Convention Against Torture
(“CAT”), claiming that she feared returning to China because she had a Chinese son (now
in his twenties who remained in China) and would soon have a second child in violation
of China’s one-child family planning policies. Zhang filed a tome of documents in1
support of her claim, including birth certificates for her children, Fujian Province Birth
Control Regulations and Fujian Province administrative opinions and decisions from
2003 regarding the treatment of foreign-born children for family planning purposes in the
cities of Changle and Fuzhou in Fujian Province, numerous articles, affidavits (including
the affidavit of demographer Dr. John Aird), transcripts of Congressional testimony, the
State Department’s 2002 “Travel Tips,” and the State Department Country Report on
Human Rights Practices in China for 2005 (“2005 Country Report”).
Following a hearing, the IJ denied all relief, finding that Zhang failed to
demonstrate that she held a well-founded fear of persecution. Specifically, the IJ found
that although Zhang had established through testimony, affidavits, and other evidence that
she had a genuine subjective fear of persecution upon her return to China, she failed to
show that she had an objectively reasonable fear that she would be forcibly sterilized.

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The IJ noted Zhang’s evidence purporting to show that she would have to register her
American-born child in China, including the affidavit of one individual, unknown to
Zhang personally, who returned to Fujian Province with two foreign-born children and
was forced to undergo sterilization. Relying on the State Department’s Profile of Asylum
Claims for China for 2005 (“2005 Profile”), and an opinion letter dated January 7, 2007,
from Julieta Valls Noyes, Director of the State Department’s Office of Multilateral and
Global Affairs (“2007 Opinion Letter”), the IJ decided that “the matter of whether
[Zhang’s] U.S. child will even be counted against her total for family planning purposes
is, at best, disputed.” The IJ was unpersuaded that Zhang would be singled out for
persecution if she returned to China. The IJ found the affidavits of Zhang’s cousins,
attesting that they had been forcibly sterilized after having two children, to be largely
irrelevant because these individuals did not have foreign-born children.
The IJ also found that Zhang failed to show that Fujian Province engaged in a
pattern or practice of forced sterilization in cases like her own. The IJ found the bulk of
Zhang’s documentary evidence to be unpersuasive because it was outdated, addressed
circumstances in a different province, had been discredited (as in the case of the Aird
Affidavit), or because it did not tend to show that Fujian Province engaged in mandatory
forced sterilization or abortion as opposed to assessing “social compensation fees” against
violators of family planning policy. While the IJ acknowledged that the State
Department’s 2002 “Travel Tips” document stated that American-born children would be

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In the opinion, the IJ mistakenly referred to the 2006 Profile of Asylum Claims2
as “Exhibit 10.”
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treated as Chinese citizens if their Chinese parents had no immigration status in the
United States, she noted that the document did not address specifically whether the
children would be “counted” against the parents for family planning purposes. Relying
again on the 2005 Profile and the 2007 Opinion Letter, the IJ found that, in any event, the
record evidence “pointed to a marked decrease in enforcement of the family planning
policy through forced abortion and/or sterilization and does not indicate that there is
pattern or practice of sterilizing individuals who return to China after having children in
the United States.” (IJ Opinion, JA-15.) The BIA adopted and affirmed the IJ’s2
decision. Zhang filed this timely petition for review.
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.
§ 1252(a). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the BIA both
adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we
have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376
F.3d 215, 222 (3d Cir. 2004). We review both decisions under a substantial evidence
standard. See Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this
deferential standard of review, we will uphold the findings of the BIA “unless the
evidence not only supports a contrary conclusion, but compels it.” Id. at 484.
To qualify for asylum, an applicant must demonstrate, among other things, a well-

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In Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), the BIA discussed at3
length the State Department’s 2005 and 2006 Profile of Asylum Claims and its 2005 and
2006 Country Reports on China. The 2006 State Department Asylum Claims Profile and
Country Report are not in evidence in Zhang’s case.
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founded fear of persecution based on both a subjectively genuine fear of persecution and
an objectively reasonable possibility of persecution. See INS v. Cardoza-Fonseca, 480
U.S. 421, 430-31 (1987). To establish eligibility for withholding of removal, an applicant
must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12 F.3d 1233,
1238 (3d Cir. 1993) (quoting INS v. Stevic, 467 U.S. 407, 430 (1984)).
In her petition for review, Zhang claims that the IJ mischaracterized the evidence,
which, Zhang asserts, established that she would be subject to forced sterilization if she
returned to China with her American-born child. We disagree. According to the 2005
Profile and the 2007 Opinion Letter upon which the IJ and the BIA relied, birth planning
policy in China is established nationally; the enforcement of the policy is left to the
provinces and local villages and can vary widely from province to province and from
village to village. (See JA-1366; 1410.) The State Department acknowledges that forced
sterilization and abortions, which violate national law, continue to be documented. (JA3
at 1367-68; 1410.) As for enforcement of birth planning policy in Fujian Province,
however, although “public and other pressure” may be used to encourage compliance
with birth planning laws, United States officials “did not find any cases of physical force
employed in connection with abortion or sterilization” in the last ten years. (2005 Profile,

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JA at 1370; 2007 Opinion Letter, JA at 1410 (“Regarding the alleged existence of an
official government policy mandating the sterilization of one partner of couples that have
given birth to two children, U.S. officials in China are not aware of such a policy at either
the national or provincial level”)). In sum, we conclude that the IJ’s and BIA’s decisions
are supported by substantial evidence.
Zhang also protests that the assessment of harsh and exorbitant social
compensation fees alone constitutes persecution in her case. The BIA implicitly rejected
Zhang’s argument when it concluded that she failed to show a well-founded fear of
persecution and affirmed the IJ’s removal order. The BIA has addressed economic
sanctions in Fujian Province and has found that, at most, an alien would face “moderate
economic impact” not amounting to persecution. In re J-W-S-, 24 I. & N. Dec. 185, 191
(BIA 2007); Shao v. Mukasey, 546 F.3d 138, 164 (2d Cir. 2008) (finding that the BIA in
J-W-S- reasonably concluded that the economic rewards and penalties used to implement
the family planning policy in Fujian Province did not necessarily amount to “physical or
mental coercion”). Here, Zhang offered no evidence indicating that Fujian Province
would impose more stringent and punitive economic sanctions in her case than the
moderate sanctions Fujian Province normally imposes on its residents who violate the
family planning policy. The State Department documents on record indicate only that
Fujian Province imposes economic sanctions where foreign-born children are registered
as permanent residents. (See 2005 Profile, JA at 1374 ; 2007 Opinion Letter, JA at

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In Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), the BIA discussed at length4
the State Department’s 2005 and 2006 Profile of Asylum Claims and its 2005 and 2006
Country Reports on China. The 2006 State Department Asylum Claims Profile and
Country Report are not in evidence in Zhang’s case.
Among other evidence she claims the BIA failed to consider, Zhang emphasizes5
Dr. Aird’s affidavit and accompanying materials. (Petitioner’s Brief at 18-20.) In Yu v.
Attorney General, 513 F.3d 346, 348-49 (3d Cir. 2008), we agreed with the BIA that the
State Department’s Profile of Asylum Claims and its Country Report on China, both
issued in 2005, tended to cast doubt on the utility of Dr. Aird’s frequently-cited affidavit,
which provided only generalized statements regarding China’s family planning policies
and did not specifically address the issue of couples returning to China with foreign-born
children.
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1411.) Thus, there is simply nothing in the record that would compel us to conclude that4
economic sanctions, if any, that Fujian Province might impose on Zhang would be so
exorbitant as to amount to persecution. Cf. Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.
2005) (“[T]he deliberate imposition of severe economic disadvantage which threatens a
petitioner’s life or freedom may constitute persecution.”).
Next, Zhang contends that the BIA failed to properly consider the documents she
submitted at the immigration hearing in support of her claim. Contrary to her assertion,5
the BIA “is not required to ‘write an exegesis on every contention. What is required is
merely that it consider the issues raised, and announce its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and thought and not merely
reacted.’” Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir. 2006) (quoting Mansour v. INS,
230 F.3d 902, 908 (7th Cir. 2000) (internal quotations omitted)). Here, the BIA
acknowledged the voluminous record in Zhang’s case and properly concluded that it was

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We note that twenty-one of the thirty documents contained in the “new6
background material” appear to be in the record already. (Compare background-index,
JA at 90-97, with indices of documents submitted at the removal hearing, JA at 1662-
1665 & 1264-65.)
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insufficient to carry her burden of proof.
Zhang also argues that the BIA failed to remand her case to the IJ to consider
several documents that Zhang submitted for the first time on appeal. The BIA declined to
consider the additional documents, noting that its review was “limited to the record as
was constituted before the Immigration Judge.” See 8 C.F.R. §§ 1003.1(d)(3)(i) and (iv)
(“Except for taking administrative notice of commonly known facts such as current
events or the contents of official documents, the Board will not engage in factfinding in
the course of deciding appeals.”). We cannot fault the BIA for not considering a remand
to the IJ for consideration of the additional documents, as Zhang did not file a motion to
remand, and mentioned “remand” only once in her brief before the BIA. See Tipu v.6
INS, 20 F.3d 580, 582 (3d Cir. 1994) (“Discretionary decisions of the BIA will not be
disturbed unless they are found to be ‘arbitrary, irrational, or contrary to law.’”) (quoting
Chun Chung v. INS, 602 F.2d 608, 612 (3d Cir. 1998)). Moreover, Zhang has not
explained (either before us or to the BIA) why the additional documents she submitted on
appeal to the BIA were not previously available or how the evidence, if considered,
would change the result in her case. Cf. 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen
proceedings shall not be granted unless it appears to the Board that evidence sought to be

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offered is material and was not available and could not have been discovered or presented
at the former hearing.”).
In sum, we cannot say that the evidence compels a conclusion contrary to that of
the BIA. See Yu v. Att’y Gen., 513 F.3d 346, 348-49 (holding that State Department
Country Reports constituted substantial evidence supporting the BIA’s finding that
petitioner’s fear of forced sterilization upon returning to China was not objectively
reasonable); Chen, 376 F.3d at 223 (requiring asylum applicant to demonstrate by
“credible, direct, and specific evidence an objectively reasonable basis for the claimed
fear of persecution”). Accordingly, we will deny the petition for review.

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