Eleventh Circuit Upholds Board of Immigration Appeals Determination that Chinese Couple Would Not Be Subject to Persecution by Forced Sterilization If Returned to China

Wu v. U.S. Attorney General, No. 12-16150 (Mar. 18, 2014) is an immigration case about two Chinese nationals, Ru Cheng Zhang and Mu Ying Wu, who illegally entered the United States in the 1990s and were deported and removed respectively. Despite these orders, both remained in the United States, met, and married. After the couple had three children in the early 2000s, they attempted to reopen their immigration proceedings and apply for asylum on the grounds that they feared they would be sterilized by the Chinese government if returned to China because they had three children. After attempting to reopen their immigration cases for the better part of a decade, an Immigration Judge held a merits hearing on the matter.

The Immigration Judge considered some documents produced by the couple aS well as the testimony of Wu, the wife, but determined that the evidence was insufficient and not credible in light of reports produced by the Department of Homeland Security discussing the small likelihood of sterilization and widespread fraudulent production of supposedly local Chinese government documents related to family planning. The Board of Immigration Appeals reached the same conclusion: the couple had not established a well-founded fear of persecution.

Reviewing both the Immigration Judge’s and Board’s decision under the substantial evidence standard, which requires the court to view the evidence in the light most favorable to the agency’s decision, the Eleventh Circuit denied Wu and Zhang’s petition.

The Court rejected the couple’s contention that a document they claimed was an official local government document had been “authenticated” merely because it was unaltered. Because the document was produced with an inkjet printer, in a category of commonly faked documents, and otherwise unauthenticated, the Judge and the Board could properly give it no weight.

Next, the Court determined that the couple’s persecution claim did not satisfy the three-prong test required by In re J-H-S-, 24 I. & N. Dec. 196 (BIA 2007), which required the alien to show (1) the relevancy of the family planning policy to the individual; (2) a violation of the policy by the alien; and (3) that the violation would be punished in the local area in a way that would give rise to an objective fear of future persecution. The second prong was not satisfied because the record indicated that U.S.-born children did not count towards China’s family planning limit if not registered as permanent residents in China. The third prong was also not satisfied because there was no evidence showing that a Chinese citizen with U.S.-born children had actually been sterilized, and that the record generally indicated a small likelihood of such a threat.

In addition, the Court considered the couple’s economic persecution claim, but determined that the fact that unregistered U.S.-born children do not receive public medical care and education does not rise to the level of persecution. The Court also determined that a steep one-time fine imposed by the government, under the circumstances, would not be persecution.

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