On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1:A099-583-314) Immigration Judge: Hon. Henry Dogin.
The opinion of the court was delivered by: Jordan, Circuit Judge.
Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges.
En Hui Huang appeals an order of the Board of Immigration Appeals ("BIA") reversing the grant of asylum entered by an immigration judge ("IJ"). Huang contends that the BIA applied the incorrect standard of review when evaluating the merits of the IJ's disposition, and that it abused its discretion in failing to consider evidence that she submitted for the first time on appeal. For the reasons that follow, we will grant Huang's petition for review and remand this case to the BIA for further consideration of her claims for asylum and withholding of removal.
Huang is a citizen and native of China, whose home village is located in the town of Guan Tou, Fujian Province. On February 1, 2003, she entered the United States through Washington, D.C. without valid entry documentation. She initially moved to Altoona, Pennsylvania, where she began a romantic relationship with Duan Zheng Huang, who is also an illegal alien and citizen of China.*fn1 The couple later relocated to New York City, where they were married, and where Huang gave birth to their first child, a son, on October 22, 2004. Their second child, a daughter, followed on April 27, 2006.
On December 1, 2005, while pregnant with her daughter, Huang filed a petition for political asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The petition sought relief on the ground that, once Huang gave birth to her daughter, she would be in violation of Chinese family-planning policies, which generally permit Chinese citizens to have only one child. Huang stated in the petition that her mother, aunt, and three aunts-in-law had undergone compulsory sterilization at the hands of Chinese authorities, and that she would likewise be "forced to be sterilized" under those policies if she returned to China. (R. at 2283.) The filing of Huang's asylum petition apparently alerted the Department of Homeland Security ("DHS") to her illegal status in the United States because, on January 31, 2006, the government served Huang with a notice to appear, charging her with being a removable alien. Removal proceedings commenced in New York but, because Huang had moved to East Orange, New Jersey around the time that her daughter was born, her case was transferred to New Jersey.
A. Proceedings before the IJ
On April 25, 2007, an IJ conducted a hearing on Huang's petition. Huang testified that, because she has violated family-planning policies, she fears she will be sterilized if she returns to China. To corroborate her testimony, Huang produced a letter from her in-laws, Li Ping Ye and Chun Cai Wang, dated August 8, 2006 ("the in-laws' letter"), in which her in-laws stated that they spoke with Fujian family-planning authorities who informed them that Huang will be sterilized and fined if she returns to China. She also submitted an affidavit from a native of Fujian Province who resided in Japan as a student for several years and fathered two children while living there. According to the affidavit, Fujian family-planning authorities forced him to be sterilized when he returned to China. In addition, the IJ considered a letter dated January 9, 2007, that the government obtained from the State Department ("the 2007 State Department letter") regarding whether compulsory sterilization continues to occur in Fujian Province. According to the letter, "Chinese officials assert that national laws and policy and provincial regulations do not permit forced abortions or sterilizations, [but nonetheless] there is evidence that they have taken place ... ." (R. at 1353.) The letter referred to the State Department's 2007 Profile of Asylum Claims and Country Conditions for China ("the 2007 Asylum Profile"), according to which the Department had received reports of compulsory sterilizations in Fujian Province as recently as 2006. The IJ also considered the State Department's 2006 Country Report on Human Rights Practices ("the 2006 Country Report"), reflecting that "forced sterilizations and abortions, in violation of the national law, continued to be documented in rural areas. During , officials ... in Fujian province reportedly forcibly sterilized women." (Id. at 966.)
However, evidence from the State Department was equivocal regarding whether Fujian Province authorities would likely find that an alien like Huang, who had given birth to multiple children abroad, instead of in China, had actually violated family- planning policies. According to the 2007 State Department letter, foreign-born children are not considered permanent residents of China and therefore do not "count" for purposes of family-planning regulations unless they become Chinese citizens or register as members of their parents' household. (Id. at 1353.) Couples have no obligation to register foreign-born children, the letter indicates, but families with unregistered children must pay additional fees for unregistered children to have access to social services such as medical care and public education. Other evidence from the State Department, including a 2002 bulletin designed to give travelers an overview of Chinese society, states that "[c]hildren born in the United States to [Chinese] national parents ... are not recognized as U.S. citizens under Chinese nationality law" and are instead "treated solely as [Chinese] nationals by Chinese authorities when in China." (Id. at 339.) That position is confirmed by a 2003 administrative decision issued by the Fujian Department of Family-Planning Administration ("FDFPA"),*fn2 which states that "if either parent remains a Chinese national and citizen without permanent residence overseas[,] any child of such a couple shall be treated as a Chinese national and citizen for ... domestic administrative purposes regardless of the child's nationality conferred by his or her country of birth." (Id. at 1895.) Thus, that administrative decision asserts that foreign-born children of Chinese nationals are automatically counted as Chinese residents for purposes of Fujian family-planning policies. (See id. at 1896 (stating, as the official position of the FDFPA, that an employee of the Chinese government who "reproduced a second child while on a family visit in the United States is in violation of family-planning regulations").)
Citing the conflicting evidence, the IJ granted Huang's asylum application. The IJ concluded that Huang possessed a well-founded fear of persecution because the birth of her second child likely placed her in violation of Fujian family-planning regulations. While recognizing that the 2007 State Department letter intimated that an alien in Huang's situation would not be sterilized, the IJ nevertheless found that "[t]he children will come to the attention of the authorities and there's a strong possibility [Huang] will be forbidden to have any other children and some sort of procedure will be carried out on her and/or her husband." (R. at 1322.)
B. Proceedings Before the BIA
The government appealed to the BIA, challenging the grant of asylum on the basis that reports of compulsory sterilization varied greatly from municipality to municipality and that Huang had failed to show she would return to an area in Fujian Province where such procedures actually occurred. The government also contended that Huang lacked a well-founded fear of persecution because she could avoid sterilization by choosing not to register her children as permanent residents of China.
1. Huang's Newly Submitted Evidence
In response, Huang submitted several pieces of evidence that she had not produced before the IJ but which she urged the BIA to consider in the first instance. Among those exhibits was a DHS report dated April 17, 2007, that contained a response from the Fujian Province Office of Foreign Affairs to a DHS inquiry seeking, among other things, clarification regarding whether foreign-born children of Chinese nationals are counted under Fujian family-planning policies.*fn3 Fujian officials responded that whether foreign-born children count toward family-planning quotas depends upon whether their parents register them as permanent Chinese residents when the family returns to China. Children who have been formally registered will be considered for purposes of family-planning enforcement. Children who have not been formally registered are not considered permanent residents of China and therefore do not count, but, as indicated in the 2007 State Department letter, parents must pay additional fees in order for such children to use many social services.
In addition to the DHS report, Huang submitted Chinese family-planning propaganda, Chinese travel documents for her children, and two administrative decisions from the FDFPA and the Changle City Planning Board indicating that foreign-born children are counted for family-planning purposes. She also submitted two documents dated November 15, 2007, obtained from her mother-in-law, Li Ping Ye. The first document is an affidavit in which Ye testifies that she inquired with family-planning officials in Huang's husband's hometown of Fuzhou, Fujian Province, whether Huang will face sanctions if she returns to China. According to the affidavit, those officials informed Ye that, despite the national government's policy against mandatory sterilization, "Chinese citizens ... must obey the family planning policy of China, one child IUD inserted, two children sterilization; unless they are not Chinese citizens[.
A]lthough, [Huang and her husband] gave birth to two children in U.S., one of the couple must be sterilized with fines as well" upon returning to China. (R. at 148.) The second document is a written certification purportedly issued by Fuzhou family-planning authorities in response to Ye's inquiry, indicating that an "IUD must be inserted after giving birth to a boy, and can not give birth again. The second child is allowed with birth permit after interval of four years if the first child is a girl, sterilization must be implemented after that." (Id. at 152.)
Huang argued that, if the BIA was inclined to reverse the IJ's grant of asylum on the existing record, it should nevertheless affirm based on the newly submitted evidence. Huang also asked, in a motion filed as part of her brief (hereinafter "the motion to remand"), that, if the BIA refused to consider the new evidence, it nevertheless remand the case to the IJ and reopen the record for consideration of that evidence by the IJ in the first instance. The BIA denied the motion in a footnote, stating that "[t]he Board does not consider evidence submitted on appeal" and that, in any event, many of the documents were cumulative of other evidence in the record. (Id. at 4 n.1.)
2. The Merits of Huang's Asylum Petition
On the merits, the BIA reviewed de novo the IJ's grant of asylum and reversed it, saying that an objectively reasonable person in Huang's situation would not have harbored a fear of persecution. The BIA gave four reasons for its holding. First, it observed that no uniform policy of sterilization exists in Fujian Province and that, while violators of family-planning policies sometimes face fines, officials often impose no sanctions. Second, it noted that Huang had produced no evidence that she would be individually targeted for sterilization. Third, the BIA concluded that the affidavit from the Chinese citizen who returned from Japan was unreliable because it "did not contain all of the underlying facts of that case." (Id. at 5.) Finally, the agency rejected the in-laws' letter as a basis for a well-founded fear of persecution because the letter contained multiple layers of hearsay. The BIA did not comment on the State Department reports intimating that compulsory sterilization continues in some parts of Fujian Province. On November 6, 2008, the BIA entered a final order of removal.*fn4 Huang then filed a timely petition for review.
II. Jurisdiction and Standard of Review
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of removal issued by the BIA. The BIA possesses appellate jurisdiction over IJs' decisions, which the BIA may either summarily affirm or analyze in an independent opinion. 8 C.F.R. § 1003.1(e)(4)-(6). If the BIA summarily affirms an IJ's order, we review the IJ's decision as the final administrative determination. Konan v. Att'y Gen., 432 F.3d 497, 500 (3d Cir. 2005). When the BIA issues a separate opinion -- as it did in Huang's case -- we review the ...