2nd Circuit: Chinese nationals facing forced abortion or sterilization are not categorically eligible for asylum
The 2nd Circuit has issued a ruling in Shao v. Mukasey, No. 07-2689 (2nd Cir. Oct. 10, 2008). Excerpts:
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We address these petitions in a single opinion because similar well-founded fear claims are now pending in hundreds of petitions for review to this court, and these three cases present us with the precedential responses from the Board of Immigration Appeals (“BIA”) to the common question raised in the different contexts of these cases: under what circumstances can a Chinese national rely on the birth of more than one child to demonstrate the well-founded fear of persecution necessary to qualify for asylum as a “refugee”? . . .
Accordingly, we accept the BIA’s decision to apply case-by-case review to Chinese nationals’ claimed fears of future persecution based on the births of two or more children, and we review in turn its conclusion that none of the three petitioners in these cases convincingly demonstrated that their professed fears were well founded . . .
Presented with unattributed “reports” of forced sterilization that lacked any specificity as to number or circumstance, the BIA acted well within its factfinding discretion in considering whether any other evidence, including visa applications, shed light on the reasonable possibility of petitioner facing such persecution on removal to China. To the extent other evidence failed to support that possibility, the BIA reasonably determined that the unattributed “reports” did not, by themselves, persuasively demonstrate a reasonable possibility that Jian Hui Shao would face such future persecution . . .
III. Conclusion
To summarize, we conclude:
(1) Because the BIA found wide variances in how population control policies are understood and enforced throughout China, it reasonably concluded that the “wellfounded fear” requirement of 8 U.S.C. § 1101(a)(42) is not susceptible to a construction that categorically affords or denies refugee status to all Chinese nationals with more than one child.
(2) To the extent the BIA has employed a three-step evidentiary analysis to facilitate its case-by-case identification of those aliens with more than one child who possess a well-founded fear of persecution on removal to China, we discern no legal error in that framework. Specifically, we do not understand the analysis to impose a heavier burden of proof for the demonstration of a well-founded fear than the “reasonable possibility” standard identified by the Supreme Court in INS v. Cardoza-Fonseca, 480
U.S. at 440.
(3) Because the BIA did not overlook relevant evidence or commit any other legal error in determining that none of the petitioners now before the court convincingly demonstrated a well-founded fear of forced sterilization on removal to China, we review that factual finding only for substantial evidence. As the BIA’s finding is supported by substantial evidence in each case, particularly on the critical point that no petitioner has demonstrated a reasonable possibility that he or she will face forced sterilization on removal to China, we identify no error in its denials of asylum to petitioners Jian Hui Shao and Ji Wen Shi or in its denial of reopening or reconsideration to petitioner Show Yung Guo.
(4) With respect to petitioner Show Yung Guo, the BIA acted within its discretion in determining that she failed to adduce sufficient evidence to support reopening on the alternative ground that she qualified for relief from removal as an asylee refugee.
Accordingly, the petitions for review are DENIED.