Filed:   May 30, 2014

                     FOR THE FOURTH CIRCUIT

                              No. 12-2279




ERIC H. HOLDER, JR., Attorney General,


                               O R D E R

          The Court amends its opinion filed February 5, 2014,

as follows:

          On page 12, footnote 2, all language following the

sentence, “The BIA did not address this holding, and neither

party briefed the issue on appeal” is deleted.

                                       For the Court – By Direction

                                            /s/ Patricia S. Connor

                      FOR THE FOURTH CIRCUIT

                               No. 12-2279




ERIC H. HOLDER, JR., Attorney General,


On Petition for Review of an Order of the Board of Immigration

Argued:   September 19, 2013                Decided:     February 5, 2014

Before TRAXLER,    Chief   Judge,   and     MOTZ   and    KEENAN,   Circuit

Petition for review granted in part and denied in part by
published opinion.   Chief Judge Traxler wrote the opinion, in
which Judge Motz and Judge Keenan concurred.

Mead, New Jersey, for Petitioners.     Walter Bocchini, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Mead, New Jersey, for Petitioners. Stuart F. Delery, Principal
Deputy Assistant Attorney General, Civil Division, Carl H.
McIntyre, Jr., Assistant Director, Christina J. Martin, Office
Washington, D.C., for Respondent.
TRAXLER, Chief Judge:

       Petitioners Ai Hua Chen and Jin Xiu Li, both natives of

China’s Fujian Province, met and married in the United States

and are the parents of two children born to them here.                         Chen and

Li    admit   they    are   subject       to       removal,    but   seek   asylum    and

withholding of removal on the basis that one or both of them

will be persecuted for having violated China’s one-child policy.

The couple also seeks asylum and withholding of removal on the

grounds      that    they   will   face     persecution        for     their   Christian

faith upon returning to China.                 Despite finding both Chen and Li

to be credible witnesses, the immigration judge (“IJ”) and the

Board of Immigration Appeals (“BIA”), relying on an often-cited

2007 State Department report, China: Profile of Asylum Claims

and   Country       Conditions     (“2007      China       Report”),    concluded     that

neither       petitioner      established             a     well-founded       fear    of


       For    the   reasons   that    follow,         we    grant    the   petition   for

review to the extent Chen and Li seek relief based on China’s

one-child policy and remand that claim for further consideration

by the agency.        We deny the petition for review to the extent it

is grounded on the religious faith of the petitioners.



       Li arrived in the United States in June 2001 without valid

entry documents and was placed in removal proceedings by the

Department of Homeland Security (“DHS”).                               Li sought political

and    religious          asylum,       but    an       immigration     judge      denied    his

application in 2003 and the Board affirmed in 2005.                                  In 2010,

however, the Board granted Li’s motion to reopen.

       Chen       entered       the     United      States       in    January     2003     on   a

nonimmigrant          K-1       visa.         A     K–1       nonimmigrant       visa,      known

colloquially         as     a   “fiancé       visa,”         permits   the   foreign-citizen

fiancé of an American citizen to travel to the United States to

marry his or her citizen sponsor within ninety days of arrival.

See 8 U.S.C. § 1101(a)(15)(K)(i).                            Chen’s fiancé sponsor, as it

turned out, decided not to marry her.                            Chen, however, remained

in    the    United       States      after    the       expiration     of   the    ninety-day

period.          Chen and Li eventually met in 2005 and married in 2007.

       Also in 2007, Chen gave birth to petitioners’ two children—

the first in January and the second in December.                                 Chen did not

have legal status in the United States, however, and she worried

that if she were ever forced to return to China, she and Li

would       be    considered       violators            of   China’s    infamous     one-child

policy.          Thus, in August 2007, while pregnant with petitioners’

second child, Chen applied for political asylum, which led to

the   DHS     initiating        removal       proceedings    against    her   for

overstaying her visa.            In 2011, the proceedings against Chen

were consolidated with Li’s reopened proceedings.

      Chen and Li seek asylum on two identical grounds.                   First,

Chen and Li claim that even though their children were born

abroad, Chinese family planning officials would still consider

the pregnancies to have been “out-of-plan” pregnancies and in

violation of China’s family-planning regulations.                  Chen and Li

believe that they would face fines, imprisonment and involuntary

sterilization upon their return to China.                   On this basis, they

seek political asylum, which is potentially available for any

person who establishes “a well founded fear that he or she will

be forced to undergo [involuntary sterilization]” or will be

“subject to persecution” for “other resistance to a coercive

population control program.”           8 U.S.C. § 1101(a)(42).

      Li    and   Chen   also   seek   religious     asylum.     As    practicing

Christians, Li and Chen claim that, if removed, they would be

compelled by their beliefs to attend a “house church,” which is

illegal in China.        They fear that participation in such a church

would result in their arrest and detention and that they would

be coerced by the government to renounce association with the




       Although     the    IJ    found   both   Li    and     Chen   to   be    credible

witnesses, he concluded that they failed to prove that their

genuine   fear      of    future   persecution        under    the   family-planning

policy was objectively reasonable.                 The IJ’s reasoning was two-

fold.     First, he determined that Li and Chen failed to prove

they    are    in     violation     of   China’s      family-planning          policies.

According to the 2007 China Report, upon which the IJ heavily

relied, each married couple in the Fujian Province “is allowed

to have one child without a birth permit.”                     J.A. 419.       A second

child, therefore, is not allowed unless the government grants

permission ahead of time by issuing a birth permit.                        But the IJ

found   that    children        born   abroad   are    not    counted     against    the

number of children allowed unless the returning parents choose

to register them as part of the household registration.                              The

2007 China Report states that

       U.S. officials in China are not aware of the alleged
       official policy, at the national or provincial levels,
       mandating the sterilization of one partner of couples
       that have given birth to two children, at least one of
       whom was born abroad.

              . . .

            . . . [T]he 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 law. .
       . .

J.A. 421-22.

       Second, the IJ found that even if petitioners’ children

“counted” for purposes of China’s family-planning law, Li and

Chen would merely face fines or other economic penalties that do

not rise to the level of persecution.                  Again, the IJ rested his

factual determination on the 2007 China Report, which states

that    “[a]ccording     to      the    Fujian     Provincial        Birth    Planning

Committee (FPBPC), there have been no cases of forced . . .

sterilization in Fujian in the last 10 years.”                          The Report,

however, also acknowledges that “[i]t is impossible to confirm

this claim” and cited reports of forced sterilizations in 2006.

J.A. 418.      The 2007 China Report notes that the FPBPC claims

provincial     officials       impose     only     economic        penalties—“social

compensation     fees”—upon          violators,     not      physically       coercive

sanctions.      J.A.   419.          According    to   the    2007    China     Report,

however, for returning Chinese nationals who are the parents of

U.S.-born    children,        even     such    economic      penalties       would   be

triggered    only   if     the       parents     decided     “to     register    their

children as Chinese permanent residents in order to gain free .

. . educational and other social benefits.”                  J.A. 422.

        The IJ noted some of the contradictory evidence submitted

by Li and Chen, but indicated without explanation that the 2007

China Report was simply “more persuasive.”                                  The contradictory

evidence       from     Chen       and     Li     included          (1)    an     affidavit       (and

supporting documents) from Renzun Yuan stating that immediately

after    removal        to   the     Fujian       Province,         he     was    sterilized       for

having violated China’s family-planning law even though his sons

were    born     in     the       United     States;          (2)    a     200-page       scholarly

critique        of     the     2007       China        Report       from    Dr.       Flora       Sapio

concluding           that    it     was     outdated,             inaccurate       or     based     on

anecdotal or unverifiable evidence; (3) written certifications

issued    by     the        applicants’         respective          local        family     planning

officials in Mei Hua Town, Chang Le City, and Ma Wei District of

Fuzhou City indicating that Li and Chen would be sterilized upon

returning       to     China      under     the    circumstances;               and   (4)     written

affirmations from Chen’s father and Li’s mother stating that the

certified       statements          from    the        family-planning            officials        were

issued     at        their    request.            The        IJ    also     dismissed         written

affirmations          from     two    of     the       petitioners’          cousins        and    two

friends,    all        of    whom     attested          to    having       undergone        forcible

sterilization after having unauthorized children in China.                                          The

IJ found such evidence lacking in probative value because the

children were not born abroad.

      Finally, as described in greater detail below, Li and Chen

submitted     evidence         that    the    IJ     either     failed        to    mention     or

ignored     altogether.          This     evidence         included      the       2009     Annual

Report      from    the    Congressional-Executive                   Commission       on    China

(“2009 CECC Report”).              The CECC Report states that, as of 2009,

forced abortions and sterilizations were still occurring.                                   While

acknowledging           that    Chinese        law     prohibits         official          abuses

relating to population control, the 2009 CECC Report notes that

the   law    also       requires      local    officials        to     carry       out    regular

pregnancy     tests       on    married       women    and      administer          unspecified

“follow-up     services”         to    the     extent      needed       to    meet        planning

goals.       More specifically, local family-planning officials in

the Fujian Province are authorized to take “remedial measures”

for   out-of-plan          pregnancies,            which       the     2009        CECC    Report

interprets         as      a     euphemism           for       compulsory            abortions.

Additionally,           this    report        states       that        local        authorities

continued to require sterilization as a means of enforcing birth


      The IJ also ignored or failed to mention evidence of a

webpage maintained by the Fuzhou City (Fujian) Family Planning

Committee     which       apparently      provides         a    forum    for       citizens    to

submit questions about the family-planning policy and receive

responses from the government.                  Li and Chen submitted a copy of

a screenshot from this website, dated June 16, 2010, showing an

April      2008   inquiry      from    “Robert     Lin”    about   the    consequences

faced by Chinese nationals who have out-of-plan children abroad

and the Committee’s response that “sterilization is mandatory”

for violators of the one-child policy in this situation.                            J.A.



       The BIA adopted and affirmed the IJ’s decision that the

petitioners did not meet their burden of proving that there is

an “objectively reasonable possibility” that Li or Chen would be

“forcibly sterilized, excessively fined, or otherwise persecuted

for having two children without permission while in the United

States.”          J.A.   4.      The    BIA    offered     additional     reasons    for

discounting the evidence offered by Li and Chen.                          For example,

the    BIA   observed         that    the   certifications      issued     by     family-

planning officials in Mei Hua Town, Chang Le City, and the Ma

Wei    District     of     Fuzhou     City,   were   entitled      to    little   weight

because they were unauthenticated, unsigned, did not identify

the     author,      and      were     procured      for    litigation      purposes. 1

       The BIA also dismissed these certifications on the basis
that the 2007 China Report indicates that village committees are
“not authorized to make any decisions pertaining to family
planning issues.”   According to the BIA, such documents should
therefore “be deemed ineffective.” JA 5. This conclusion badly
misses the mark.   The relevant question for asylum purposes is
not what local authorities are authorized to do; the question,
particularly given the pressure local authorities face to meet
birth targets, is what they actually do.        As discussed in
Likewise, the BIA found the statements from the petitioners’

family     and     friends       claiming        to     have     suffered        forcible

sterilization to be unworthy of extended consideration because

the     statements       contained     unsworn        assertions       from     typically

biased    witnesses       and   lacked    sufficient       detail       to    demonstrate

that the witnesses were subject to persecution.                          And, like the

IJ, the BIA was unpersuaded by the documents related to the case

of    Renzun     Yuan    because     they    were       submitted      to     support    an

unrelated       asylum     applicant      and     the     applicants         offered    no

explanation as to how their attorney obtained the documents.

      Relying     exclusively        on   the    2007     China       Report,    the    BIA

concluded that there was no basis for believing that government

officials in the Fujian Province use coercive measures rising to

the level of persecution in circumstances such as these.                                The

BIA acknowledged that “there undoubtedly have been instances of

forced    abortion       and    sterilization         imposed    on    the    parents    of

children conceived and born [out-of-plan] in China,” J.A. 6, but

the BIA distinguished the petitioners’ claim on the basis that

their children were born abroad in the United States.                            The BIA

found    that    “[t]he     evidence      submitted      in     this    case    does    not

greater detail below, petitioners’ evidence highlights the
importance   of  this   distinction,  demonstrating   that local
practice does not always correspond with national policy.

document any instance where enforcement measures rising to the

level    of   persecution    have   been    imposed       on   the    parents   of

children who are United States citizens.”                  Id.       Finally, the

BIA, relying on the 2007 China Report, restated the IJ’s finding

that the only scenario in which sanctions might be imposed for

unauthorized      overseas   births   would       arise    from   the    parents’

registration of their children as members of their households

upon returning to China in order to secure free public benefits.

Even then, the BIA found, the parents would face only economic


     The BIA did not mention the 2009 CECC Report or the Fuzhou

City (Fujian) Family Planning Committee’s response to Robert Lin

on its webpage that sterilization is mandatory for violators of

the one-child policy even when the out-of-plan children were

born abroad.


     Because the BIA “adopted and affirmed” the decision of the

IJ but supplemented that decision with its own opinion, “the

factual findings and reasoning contained in both decisions are

subject to judicial review.”          Niang v. Gonzales, 
492 F.3d 505

511 n.8 (4th Cir. 2007).        And, because the denial of asylum was

based on the conclusion that Li and Chen failed to satisfy their

burden of proving a well-founded fear of future persecution, we

review    these     decisions    under      the     “substantial        evidence”

standard.      Dankam      v.    Gonzales,          
495 F.3d 113
,    119    (4th    Cir.

2007). 2      Under      this         deferential         standard,        “administrative

findings     of     fact        are     conclusive          unless         any     reasonable

adjudicator would be compelled to conclude to the contrary.”                                  8 U.S.C. § 1252(b)(4)(B).               In other words, we cannot disturb the

agency’s “decision that an applicant is ineligible for asylum

unless we determine that the applicant’s evidence ‘was such that

a   reasonable      factfinder          would       have       to   conclude       that     the

requisite fear of persecution existed.’”                        Djadjou v. Holder, 
662 F.3d 265
, 273 (4th Cir. 2011) (quoting INS v. Elias-Zacarias,

502 U.S. 478
, 481 (1992)).

     In    order    to    establish       eligibility           for    asylum      under    the

Immigration       and    Nationality          Act    (“INA”),         an   applicant       must

demonstrate that he or she is entitled to refugee status.                                 See 8 U.S.C. § 1158(b)(1)(A).                Under the INA, a refugee is someone

“who is unable or unwilling to return to . . . [his or her]

country     because      of     persecution          or    a    well-founded        fear     of

persecution        on    account         of     race,          religion,         nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A).               Petitioners “may satisfy this burden

       The IJ also held that petitioners’ asylum claim was time-
barred because they filed their applications after the usual
one-year deadline of arriving in the United States.       See 8 U.S.C. § 1158(a)(2)(B).   The BIA did not address this holding,
and neither party briefed the issue on appeal.

by showing either that they were subjected to past persecution

or that they have a well-founded fear of future persecution on

account of” one of the enumerated grounds.                    Djadjou, 662 F.3d at

272 (internal quotation marks and alterations omitted).                       The INA

specifically     permits         victims    of    China’s      population     control

policy to seek political asylum:

     [A] person who has been forced to abort a pregnancy or
     to undergo involuntary sterilization, or who has been
     persecuted for failure or refusal to undergo such a
     procedure or for other resistance to a coercive
     population control program, shall be deemed to have
     been persecuted on account of political opinion, and a
     person who has a well founded fear that he or she will
     be forced to undergo such a procedure or subject to
     persecution for such failure, refusal, or resistance
     shall be deemed to have a well founded fear of
     persecution on account of political opinion.

8 U.S.C. § 1101(a)(42).

     Li and Chen do not claim to have suffered past persecution,

but seek asylum based on their fear of future persecution.                          The

“well-founded    fear       of    persecution”         standard   set    forth    in   §

1101(a)(42)     has     subjective         and    objective       elements.        The

subjective component requires the alien to “present[] candid,

credible, and sincere testimony demonstrating a genuine fear of

persecution.”     Ngarurih v. Ashcroft, 
371 F.3d 182
, 187 (4th Cir.

2004)     (internal    quotation       marks      omitted).        “The     objective

element    requires    a    showing    of       specific,     concrete    facts    that

would lead a reasonable person in like circumstances to fear

persecution.”         Id.   at    187-88.         Li    and   Chen’s    asylum    claim

faltered on the objective component.                  Although the IJ found both

Chen and Li to be credible witnesses, he concluded that they did

not prove their fear of future persecution was an objectively

reasonable possibility.


       Chen and Li contend that the IJ’s decision, as supplemented

by the BIA’s order, lacked substantial evidence.                      In their view,

the denial of asylum was unsupported by substantial evidence

because     the    IJ   and   BIA   relied        almost   exclusively       on   cherry-

picked      statements    from      the   2007     China    Report    and    failed      to

consider      compelling       contradictory          evidence      suggesting         that

forced sterilizations are still a reality for Chinese nationals

such as Chen and Li.

       Typically, we have approved of the BIA’s proclivity for

finding State Department Country Reports to be the definitive

word   in    asylum     cases.       After    all,    such      reports     are    rightly

considered to be “highly probative evidence in a well-founded

fear case.        Reliance upon these reports makes sense because this

inquiry is directly within the expertise of the Department of

State.”      Gonahasa v. U.S. INS, 
181 F.3d 538
, 542 (4th Cir. 1999)

(citations        and   internal     quotation       marks      omitted).         In   the

context      of    substantial-evidence             review,     “[a]bsent         powerful

contradictory       evidence,       the   existence        of   a   State    Department

report supporting the BIA’s judgment will generally suffice to

uphold the Board’s decision.”              Id.

       On    the   other    hand,    the   BIA     should    avoid     treating    these

Country Reports “as Holy Writ” immune to contradiction.                           Galina

v.    INS,   
213 F.3d 955
,    959    (7th    Cir.     2000)     (Posner,    C.J.).

Although “our job as a reviewing court is not to reweigh the

evidence,” we must “ensure that unrebutted, legally significant

evidence is not arbitrarily ignored by the factfinder” and that

the    agency      does    not    “base    [its]    decision     on    only   isolated

snippets of [the] record while disregarding the rest.”                           Baharon

v. Holder, 
588 F.3d 228
, 233 (4th Cir. 2009).                         The BIA may not

“selectively        consider      evidence,       ignoring     that    evidence    that

corroborates        an    alien’s    claims      and   calls    into    question     the

conclusion the judge is attempting to reach.”                           Tang v. U.S.

Att’y   Gen.,      
578 F.3d 1270
,    1280    (11th     Cir.     2009)   (internal

quotation marks omitted).

       In order for us to discharge “our responsibility to ensure

that unrebutted, legally significant evidence is not arbitrarily

ignored by the factfinder,” Baharon, 588 F.3d at 233, we require

the IJ and the BIA to “offer a specific, cogent reason for

rejecting evidence, whether testimonial or documentary, because

it lacks credibility,” Tassi v. Holder, 
660 F.3d 710
, 720 (4th

Cir. 2011).        We recognize that the BIA and IJ are not required

to discuss every piece of evidence in the record, but they must

“announce         their     decision[s]   in       terms   sufficient    to    enable   a

reviewing court to perceive that they have heard and thought and

not merely reacted.”               Ayala v. U.S. Att’y Gen., 
605 F.3d 941

948 (11th Cir. 2010) (internal quotation marks and alterations

omitted); see Seck v. U.S. Att’y Gen., 
663 F.3d 1356
, 1368 (11th

Cir. 2011).

       We     believe       Chen   and   Li    offered     “powerful     contradictory

evidence,” Gonahasa, 181 F.3d at 542, for which the BIA and the

IJ failed to adequately account.                     As previously noted, Li and

Chen submitted the 2009 CECC Report. 3                        The BIA’s failure to

account for the reports of the CECC is not unprecedented.                            See,

e.g., Qiu Yun Chen v. Holder, 
715 F.3d 207
, 209 (7th Cir. 2013)

(“We note with disapproval that the Board without explanation

systematically ignores the annual reports of the Congressional–

Executive Commission on China, several of which we have cited,

even       though    they    are   pertinent       official    publications     of   the

federal government.”); Ji Cheng Ni v. Holder, 
715 F.3d 620
, 627

(7th       Cir.     2013)    (“The   Board’s        ongoing    refusal    to    respond

meaningfully to [CECC reports] is difficult to understand.”);

         Congress     established    the   Congressional–Executive
Commission on China in 2000 “as a bipartite body, consisting of
federal   legislators   and   executive-branch  officials,   whose
purpose in part is to ‘monitor the development of the rule of
law in the People’s Republic of China.’” Jiali Tang v. Synutra
Int’l, Inc., 
656 F.3d 242
, 247 n.4 (4th Cir. 2011) (quoting 22 U.S.C. § 6912(c)).

see also Zhu Ying Dong v. U.S. Atty. Gen., No. 12-13673, 
2013 WL 6511992
, at *1 (11th Cir. December 13, 2013).                               The 2009 CECC

Report     states     that    “[t]he      use        of   [coerced          abortions     and

sterilizations]       in     the    enforcement           of        population      planning

policies       remains     commonplace             despite      provisions         for    the

punishment of official abuse outlined in the PRC Population and

Family Planning Law.”              J.A. 759.           According to this report,

population      planning     officials         in     the      Fujian       Province     “are

authorized to take ‘remedial measures’ to deal with ‘out-of-

plan’    pregnancies”;       “remedial        measures”        is    “synonymous[]       with

compulsory abortion.”         Id.       In 2008 and 2009, moreover, “[l]ocal

authorities     continue[d]        to   mandate       surgical        sterilization       and

the use of contraception as a means to enforce birth quotas.”

J.A. 215 (emphasis added).

       The 2009 CECC Report appears to contradict the 2007 China

Report upon which the IJ and BIA rely so heavily in concluding

that    compulsory    sterilization           for    violators        of    the    one-child

policy is rare.          Yet, neither the IJ nor the BIA explains why

the     2009   CECC      Report,    a    more        recent         official      government

publication, is less persuasive than the 2007 China Report, nor

was there any attempt to reconcile these reports.                            There may be

a perfectly reasonable explanation for favoring one report over

the other, or there may be a way to reconcile these seemingly

contradictory       documents.          But    the    BIA      has    not    revealed     its

reasoning, and we are not permitted to guess what the BIA or the

IJ were thinking.        See SEC v. Chenery Corp., 
332 U.S. 194
, 196

(1947) (“[A] reviewing court . . . must judge the propriety of

[agency] action solely by the grounds invoked by the agency.”).

     Second, Li and Chen submitted a copy of a screenshot from a

Fujian     Province    government      webpage     dated      May   6,       2008,    as

evidence    that     Fujian   family    planning     officials      consider          all

couples who have multiple unauthorized births to be in violation

of the one-child policy, even if such births occurred overseas.

See                            This

evidence    suggests     that   the    Fujian     Province      “Population           and

Procreation Planning Committee” provided a forum for citizens to

submit questions and receive responses about the family planning

policy.       J.A.    824.      In     response    to     a    query     about        the

consequences a returning Fuzhou couple would face after having

two children in the United States, the committee indicated that

they were in violation of provincial family planning regulations

and that “sterilization is mandatory.”              J.A. 825.       This evidence

is significant in that it purports to come directly from the

same Fujian “Population and Procreation Planning Committee” that

is referenced in the 2007 China Report, but it upends the BIA’s

conclusion that there is no danger of sterilization where the

would-be    violator’s    children     were   born      abroad.        See    Qiu     Yun

Chen, 715 F.3d at 212 (explaining that the same Fujian webpage

“cuts the ground out from under what the Board called the ‘key

aspect of this case’—that because [petitioner’s] children were

born abroad, she is in no danger of being forced to undergo

sterilization”).            To be sure, this document may not expressly

contradict the BIA’s finding that “the evidence submitted in

this       case    does    not    document      any   instance        where   enforcement

measures rising to the level of persecution have [already] been

imposed       on    the    parents      of   children       who      are   United   States

citizens.”          But it certainly portends forced sterilization of

the inquiring couple and suggests that other parents of U.S.-

born children have faced similar persecution. 4

       In    our    opinion,      the   foregoing      contradictory          evidence   is

strong enough that it requires the agency to account for it in a

meaningful way.             The boilerplate language used by the BIA in

discounting         Li     and     Chen’s       evidence       was     insufficient      to

demonstrate         that    the    agency     gave     it   more      than    perfunctory

consideration.             Presented     with     a   record      containing    virtually

        Moreover, the affidavit of Renzun Yuan does flatly
contradict the BIA’s characterization of the record evidence, as
it documents an instance of forced sterilization of the father
of U.S.-born children. We also note that the BIA has used this
precise language before when relying on the 2007 China Report to
reject an asylum application from a similarly situated applicant
on the grounds that the record “does not document any instance
where enforcement measures rising to the level of persecution
have been imposed on the parents of children who are United
States citizens.”   Li Ying Zheng v. Holder, 
722 F.3d 986
, 989
(7th Cir. 2013) (internal quotation marks omitted).

identical      contradictory           documentary          evidence,        the    Seventh

Circuit     has   on       more     than   one     occasion     rejected       the    BIA’s

exclusive reliance on the 2007 China Report and remanded for the

BIA to offer an explanation that accounts for such evidence.

See Li Ying Zheng, 722 F.3d at 991; Qiu Yun Chen, 715 F.3d at

214; Ji Cheng Ni, 715 F.3d at 630-31; see also Zhu Ying Dong v.

U.S. Atty. Gen., 
2013 WL 6511992
, at *1.                         We agree with the

thrust of these decisions that petitioners are “entitled to have

the expert agency, the BIA, evaluate in a transparent way the

evidence that [they have] presented” and that “[s]imply stating

that a 2007 document defeats a claim . . . will not do.”                                   Ji

Cheng Ni, 715 F.3d at 631.


       Chen and Li also seek asylum and withholding of removal

based on their Christian faith.                    Again, both Li and Chen were

found to be credible witnesses.                    Their task, therefore, was to

establish      that       their    genuine     subjective      fear     of    persecution

based on their religious faith is objectively reasonable, i.e.,

that   “[t]here       is    a     reasonable      possibility    of     suffering         such

persecution,”         8 C.F.R.  § 1208.13(b)(2)(B),          and        that    “a

reasonable person in like circumstances” would fear religious

persecution.      Ngarurih, 371 F.3d at 187-88.

       Chen testified that when she met Li in 2005, he indicated

he   was   a   practicing         Christian      and   he    invited    her    to    attend

church services with him.            Chen did not convert to Christianity,

however,     until       2009     after     talking         to     her     neighbors        in

Greensboro, North Carolina.              Chen was baptized in 2010 and began

regularly       attending    a    Chinese       Christian        Church    in   Greensboro

with Li and their children.                     Chen testified that if she is

removed    to    China,     she   would     be    compelled        by     her   beliefs     to

attend an unsanctioned “underground” or “house” church rather

than an “official registered church” that “preach[es] about the

. . . government’s policies.”                J.A. 139, 140.              Chen fears that

her participation in such a church would be discovered by the

government, subjecting her to arrest, torture, and fines.                                  She

also fears that the government would force her to renounce her

participation in any unsanctioned church.                        Chen’s fear is based

to a great extent on the experience of her mother, who Chen

testified       was    persecuted    based       on   her    church       affiliation       in

2009.     According to Chen, her mother was one of eight members of

an underground church to be arrested.                       Chen testified that her

mother was detained for six days, during which time she was

slapped in the face and forced to sign a written guarantee that

she would cease participating in her church.                        Chen indicated the

government      also    imposed     on    her    mother     a     significant       fine   of

2,500 renminbi (RMB).

       Li testified that he was a practicing Christian before he

left    China    and    attended    an    unsanctioned           house     church    in    the

Fujian Province.               Li testified that in March 2001, officials

from the Public Security Bureau came to his home to arrest him

for participating in the church but that he was able to elude

arrest.        Li left China shortly thereafter and arrived in the

United States in June 2001.                    He testified that he subsequently

learned from his sister that authorities looked for him after

the 2001 incident, but that he did not have any information

suggesting        that    they       have    looked       for   him   recently.        Li    was

baptized in September 2001 after arriving in the United States,

and   he    verified      that       he     attends       church    with     Chen   and   their


       Like Chen, Li indicated that his fear of being persecuted

on account of his religion was made real because of what he and

Chen were told happened to his mother-in-law in 2009 as a result

of her affiliation with an unsanctioned church.                              And, like Chen,

Li    stated    that      if    he    returns        to    China,     he     will   attend   an

unsanctioned house church, for which he believes he will suffer

official retribution including arrest and torture.

       Li   and    Chen       also    called    their       pastor,        Steven   Chang,   to

testify at the hearing.                   Chang confirmed that he is the pastor

of a non-denominational Chinese Christian church in Greensboro

and that, as of the date of the asylum hearing, Chen and Li had

been attending the church for approximately one year.                                     Chang

indicated      that      he    was    generally       familiar        with    the   plight   of

Christian house churches because Chang had visited in China with

missionaries financially supported by his church.                Based on his

experience,    Chang    indicated    that    government    interference      and

harassment     of    unsanctioned    congregations     tended      to   increase

proportionally with the visibility of the congregation.                  Thus, a

house church with fifty congregants or fewer might conduct its

services relatively unimpeded by the government, especially if

it operated in a large metropolitan area.                 In less populated

areas,   Chang      observed,   it   is    more   difficult   to      congregate

without attracting attention.         Chang noted additionally that the

zealousness with which government officials police unsanctioned

religious activities varies by location.             Chang indicated he had

never been to Chen and Li’s native Fujian Province, and he did

not offer observations specifically regarding the treatment of

Christians who attend unsanctioned churches there.

     The IJ found that the applicants failed to establish that

their fear of future persecution on account of their Christian

faith    was   objectively      reasonable.         Relying   on      background

materials published by the State Department, the IJ found that

“while participation in unsanctioned Christian churches, such as

house churches, is not approved by the Chinese government, those

that do participate are not generally persecuted.”                      J.A. 83.

The IJ noted that according to the 2007 China Report, house

churches,      though    not    officially        approved,     are     “quietly

tolerated” as long as they remain “small and unobtrusive.”                              J.A.

83.       Citing          estimates     from        the    State    Department’s       2010

International Religious Freedom Report, the IJ observed there

are as many as 50-70 million Christians in China who practice

their    faith     in      connection        with    unsanctioned       house    churches.

Additionally, the IJ was unconvinced that the treatment suffered

by    Chen’s     mother      reflected        widespread         persecution    of     house

church congregants in Chen’s home town because, according to the

IJ, Chen’s mother continued to attend a house church after her

arrest and experienced no further trouble.

      Relying        on    the   same    background          materials    reporting      on

religious freedoms in China, the BIA affirmed the IJ’s finding

that Li and Chen failed to establish a reasonable possibility

that they would be persecuted because of their Christian faith.

The BIA noted that the record did not support the IJ’s statement

that Chen’s mother had continued to attend a house church in

China, but it concluded that this error “[did] not undercut the

[IJ]’s reasoned conclusion that the respondents do not have an

objectively reasonable fear of persecution in China based on

their religion.”           J.A. 7.

      Chen     and    Li     argue    that     they       established    an    objectively

reasonable       fear       of   religious          persecution     through     both     the

general background materials published by the State Department

and     specific      evidence        that     they       will   risk   persecution      by

attending home churches in their respective home towns in the

Fujian Province.            Because the BIA denied asylum based on the

conclusion that Chen and Li failed to carry their evidentiary

burden, we must not only conclude that the evidence presented

sufficed to prove an objectively reasonable fear of religious

persecution,     but     also    that   the       “evidence    presented    was    so

compelling that no reasonable factfinder could fail to find”

that   a   reasonable        possibility     of    such   persecution      existed.

Dankam, 495 F.3d at 119 (emphasis added) (internal quotation

marks omitted).

       While Chen and Li presented some contrary evidence, that

evidence   is    not    so    compelling     that    we   cannot   defer    to    the

agency’s factual determinations.              First, we disagree with Chen

and Li that the State Department’s 2010 International Religious

Freedom Report and 2007 China Report support their claim for

religious asylum.           Although these materials certainly reported

isolated     cases     of    official   harassment,       the    general    picture

presented by both reports was simply that official treatment of

Christians      who     attend    unregistered         house    churches     varies

substantially based on locale and that such Christians in many

regions practice their religion without interference.                      As noted

by both the IJ and the BIA, Steve Chang, the applicants’ pastor

who testified on their behalf at the asylum hearing, agreed with

the general assessment that house churches are able to operate

undisturbed in many areas of China.                Moreover, Chen and Li have

not   directed    us   to   any    portion    of    these   reports   suggesting

widespread persecution of Christians attending house churches in

the Fujian Province.

      There was scant evidence presented specifically showing the

persecution of Christians attending house churches in the Fujian

Province.        Primarily,       this   included     the   testimony    of     the

petitioners themselves regarding the arrest and abuse of Chen’s

mother, as well as her mother’s written statement regarding the

incident.     Chen’s mother, however, attended a house church in

Chen’s hometown of Mei Dong Village in the Mei Hua Town area of

Chang Le City; Chen testified that if she and Li are removed,

they will live in and attend a house church in Li’s hometown of

Shangdao    Village    of   the    Mawei   District    of   Fuzhou    City.      Li

testified that officials unsuccessfully attempted to arrest him

in 2001 for attending a house church while he still lived in

China.     Li provided no testimony indicating that house church

congregants in the Mawei District were persecuted regularly or

even intermittently, and he conceded that he had no reason to

believe that government officials were still looking for him.

      In sum, viewing the record as a whole, we cannot say that

the evidence compels us to conclude that there is a reasonable

possibility that either Chen or Li will suffer persecution on

account of their religious faith if they return to China.                     Thus,

we cannot disturb the BIA’s conclusion that Li and Chen failed

to     establish      a    well-founded          fear    of   future     persecution.

Consequently, Chen and Li are not entitled to relief on the

BIA’s denial of religious asylum.

       On a final note, having found substantial evidence supports

the agency’s denial of religious asylum, we necessarily uphold

the    denial   of    Chen   and     Li’s    application       for   withholding     of

removal on account of their religious faith.                         See 8 U.S.C. § 1231(b)(3).        “Because the burden of proof for withholding of

removal is higher than for asylum—even though the facts that

must be proved are the same—an applicant who is ineligible for

asylum    is    necessarily        ineligible      for    withholding     of   removal

under § 1231(b)(3).”             Camara v. Ashcroft, 
378 F.3d 361
, 367 (4th

Cir. 2004).


       For the foregoing reasons, we grant the petition for review

as it relates to the BIA’s denial of asylum and withholding of

removal based on the petitioners’ fear of being subjected to

involuntary sterilization under China’s one-child policy, and we

remand that particular claim for the agency to reevaluate it in

accordance with this opinion.                    In conducting its analysis on

remand, the BIA should account for, at a minimum, (1) the 2009

CECC    Report,      (2)   the    evidence       relating     to   the   “Robert   Lin”

inquiry on the website of the Fujian Province Population and

Planning Committee, and (3) the affidavit of Renzun Yuan.      We

deny the petition for review, however, as it relates to the

BIA’s denial of relief based on petitioners’ claim that they

will be persecuted on account of their Christian faith if they

return to China.



Case Information

Case Name: Ai Chen v. Eric Holder, Jr.

Court: ca4

Year: 2014-05-30

This case can be cited as precedent.