Chen v. Holder, No. 13-1758 (7th Cir. 2013)

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Chen faced deportation to Fujian Province and claimed to face a significant risk of persecution there because, since coming to the U.S. in 2002, she has given birth to two children in violation of China’s one‐child policy. The Board of Immigration Appeals denied her petition for asylum. The Seventh Circuit upheld the denial, noting that the Chinese government recently announced that it will permit an urban husband and wife, at least one of whom was an only child, to have two children. Chen’s husband is not an only child; Chen testified that her mother‐in‐law was punished for violating the policy. There is no information on whether Chen is an only child or whether the new policy will be applied retroactively. Fujian Province seems to enforce the one‐child policy more strictly. Nonetheless, the BIA noted that forced sterilization has become very rare and noted that Chen could avoid penalty by not registering the children with the government as permanent residents of China. The children would not be entitled to free public education, subsidized health care, and other benefits, but Chen’s failure to present evidence concerning her financial situation “is a fatal weakness in her case.”

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13 1758 XUE JUAN CHEN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A099 934 505. ____________________ ARGUED OCTOBER 8, 2013 DECIDED DECEMBER 11, 2013 ____________________ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. Once again we confront a challenge to the denial by the Board of Immigration Appeals of asylum to a Chinese woman whom the government wants to deport to China s Fujian Province. She claims to face a significant risk of persecution there because, since coming to the United States in 2002, she has given birth to two children in viola tion of China s one child policy (the official designation is 2 No. 13 1758 family planning policy ). For similar cases see, e.g., Li Ying Zheng v. Holder, 722 F.3d 986 (7th Cir. 2013); Qiu Yun Chen v. Holder, 715 F.3d 207 (7th Cir. 2013); Xiu Zhen Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008). Recently the Chinese government announced that it s re laxing the one child policy it will permit an urban husband and wife at least one of whom was an only child to have two children. See, e.g., Chris Buckley, After Decades, China Will Ease One Child Policy, New York Times, Nov. 16, 2013, p. A1, www.nytimes.com/2013/11/16/world/asia/china to loosen its one child policy.html (visited as were all the websites cited in this opinion on December 10, 2013). The petitioner s husband is not an only child; the petitioner testi fied without contradiction that her mother in law was pun ished for violating the one child policy. There is no indica tion whether the wife is an only child. There is also no indi cation that the new policy will be applied retroactively. Moreover, Fujian Province, as we have pointed out in previ ous cases (most recently in Qiu Yun Chen v. Holder, supra, 715 F.3d at 209 10, 212), appears to march to its own beat, en forcing the one child policy more strictly than existing Chi nese law appears to permit. This makes it uncertain whether the petitioner will benefit from the new policy of the central government a policy moreover merely announced and not yet implemented. (Chris Buckley s article, supra, quotes a Chinese demographer as saying that Now [the government is] just talking about launching this, but the specific policies have to be developed at the operational level. ) Prudently, the Justice Department has filed no post argument submis sion suggesting that the new policy should affect our con sideration of the petitioner s appeal. No. 13 1758 3 The Board s opinion, and to a lesser extent that of the immigration judge, are flawed. But the inadequacy of the brief that her lawyer has filed in this court precludes our va cating the denial of asylum. The brief consists almost en tirely of verbatim quotations either from the administrative record or from previous decisions of this court. The state ment of facts consists almost entirely of quotations from the record, and the summary of argument consists entirely (not almost entirely ) of an extended quotation from one of our previous decisions. The argument section of the brief con sists of nothing but quotations from the record and from previous decisions, until the last few pages, which deal with the plaintiff s alternative (and clearly meritless) claim for re lief withholding of removal. Most of the material in that section as well is quoted rather than original material, but there is a bit of interstitial material that appears to be origi nal though none elsewhere in the brief, excluding the table of contents and other purely formal matter. All in all, in a 49 page brief, if one excludes purely formal matter, there are only five original sentences. A brief so composed is not help ful to either the reviewing court or the client. An inadequate brief often signals a desperately weak case. This is not a desperately weak case, but we cannot write a party s brief, pronounce ourselves convinced by it, and so rule in the party s favor. That s not how an adversar ial system of adjudication works. Unlike the inquisitorial systems of Continental Europe, Japan, and elsewhere, our system is heavily dependent on the parties lawyers for evi dence, research, and analysis. See Stephen McG. Bundy & Einer R. Elhauge, Do Lawyers Improve the Adversary Sys tem? A General Theory of Litigation Advice and Its Regula tion, 79 Cal. L. Rev. 313, 315 19 (1991); cf. John Thibaut, Lau 4 No. 13 1758 rens Walker & E. Allan Lind, Adversary Presentation and Bias in Legal Decisionmaking, 86 Harv. L. Rev. 386, 386 90 (1972). American judges dependence on lawyers is sug gested by the fact that the ratio of lawyers to judges is 6.29 times higher in the United States than in the principal Conti nental European judiciaries. Calculated from European Commission for the Efficiency of Justice, Evaluation Report on European Judicial Systems, p. 144 tab. 7.1, p. 308 tab. 12.1 (2012), www.coe.int/t/dghl/cooperation/cepej/evaluation/ 2012/Rapport_en.pdf; American Bar Association, Lawyer Demographics (2011), www.americanbar.org/content/dam/ aba/migrated/marketresearch/PublicDocuments/lawyer_ demographics_2011.authcheckdam.pdf; The American Bench: Judges of the Nation (Jenny Kimball et al. eds., 22d ed. 2012). We re neither authorized nor equipped to write a lawyer s brief for him. The inadequacy of the brief in this case is especially un fortunate because the Board s opinion and that of the immi gration judge contain errors that have led to reversals of the Board in previous cases, though there are also, as we ll see, critical gaps in the petitioner s evidence. The Board placed great weight on the fact that the peti tioner may be able to avoid being forcibly sterilized upon returning to Fujian with her two children simply by not reg istering the children with the government as permanent res idents of China. The Board pointed out that parents of chil dren born abroad can, when they return to China, choose to either register their children and thus obtain free public education and other benefits [for the children] or opt not to register their children, send them to private school, and pay more for similar benefits [including health care]. An unreg No. 13 1758 5 istered child is (probably little about Chinese law is certain, because China does not have the rule of law as understood in our legal system) not counted against the number of chil dren (one, with immaterial exceptions) allowed by Chinese law. But unregistered persons appear to be virtual outlaws, and most Chinese families can afford neither private school nor private doctors. Congressional Executive Commission on China, China s Household Registration System: Sustained Re form Needed to Protect China s Rural Migrants 7 10 (2005); U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2012: China 61. The government s brief candidly acknowl edges the severe consequences of nonregistration. The Board went on to say that even if the petitioner were found to have violated the one child policy (that is, if she re jected the option of not registering her children), State De partment and other country reports indicate that forced ster ilizations have become so rare in Fujian Province that she had not demonstrated a reasonable possibility that she would be forcibly sterilized if she returns to China. But the Board in saying such things was cherry picking among country reports (and within a 2007 State Department report) and other public documents, as in Qiu Yun Chen v. Holder, supra, 715 F.3d at 209 10. And it was ignoring evidence from other sources, including a Fujian government website that states that sterilization is mandatory for violators of the one child policy. Id. at 212; Replies to Robert Lin, http://fjjsw.gov.cn:8080/html/5/383/9626_200856322.html (English translation at www.microsofttranslator.com/ bv.aspx?ref=IE8Activity&from=&to=en&a=http%3a%2f%2ffjj sw.gov.cn%3a8080%2fhtml%2f5%2f383%2f9626_200856322.h tml) ( .gov.cn is the Chinese Government s official web 6 No. 13 1758 portal). The Board also applied the standard for authentica tion of documentary evidence that we rejected in Qiu Yun Chen v. Holder as too restrictive. 715 F.3d at 211. The alternative to forced sterilization, the Board thought, might be a fine. But the Board ruled that even if the peti tioner were fined 10 times her annual disposable income, she had not proved that imposition of such a fine would amount to persecution because before she bought the restaurant she now owns, she made enough to send a few hundred dollars to China monthly. That restaurant, which she owns jointly with her husband, is in Appleton, Wisconsin. There is no reason to think that she could earn a comparable income in China; and if not, she could not pay the fine. (But it remains to consider whether her husband might be able to pay it read on.) The petitioner s lawyer could have found some live am munition in the immigration judge s opinion, no part of which the Board questioned. It states that the petitioner s testimony at her hearings was candid, internally consistent, and consistent with her asylum application and supporting documents. Moreover, many of the facts to which [she] testi fied and about which she had personal knowledge are cor roborated by reliable supporting documents in the record. At her individual hearings, the Government did not attempt to impeach her credibility. The Court therefore finds the [pe titioner s] testimony credible. The petitioner testified that before coming to the United States in 2002 she had worked in a factory in which she earned 300 to 400 yuan a month. In 2002 this was a little more than $48 ($580 a year) at the official exchange rate of 8.277 yuan to a dollar. See Board of Governors of Federal Re No. 13 1758 7 serve System, Historical Rates for the Chinese Yuan Ren minbi, www.federalreserve.gov/releases/h10/hist/ dat00_ch.htm. The immigration judge also accepted the peti tioner s estimate of 30,000 yuan as the fine she d have to pay for violating the one child policy. At the official exchange rate of 6.663 yuan per dollar in December 2012 (when the immigration judge rejected the asylum application), that is $4,502. The immigration judge noted that the petitioner and her husband had invested $80,000 to buy their restaurant in Wisconsin, but that otherwise, she has few assets, and her restaurant has not yet been very profitable. So far as ap pears, the bulk of the $80,000 was borrowed. She acknowl edged earning more than $1,000 a month in 2009 (the year before she testified before the immigration judge). That isn t a great deal, but there is no evidence of what her husband s earnings are. That is one yawning gap in the record; another is the absence of any evidence concerning the husband s earning potential in China. These are serious gaps, attribut able to the petitioner. Refreshingly, after listing the voluminous country con ditions evidence regarding family planning policies in Chi na and noting their lack of consistency, the immigration judge said of these materials that taken together ¦ they depict China as a country with serious human rights prob lems and a strict family planning policy that severely re stricts the number of children couples are allowed to have. He went on to say that China s human rights record is poor in a number of respects, including a coercive birth limitation policy ; local officials are under intense pressure to achieve family planning goals; physical coercion is some 8 No. 13 1758 times reported. These findings are echoed throughout the record in submissions by both the Government and the [peti tioner]. ¦ Enforcement and application of the family plan ning policy are uneven and vary widely from region to re gion. ¦ [M]edia sources, and hundreds of asylum claimants have described forcible and coercive sterilizations and abor tions. In fact, Chinese government officials concede that overzealous officials may have perpetrated such acts. Yet the immigration judge s opinion states that although documents from committees in [the petitioner s] and her husband s village and town also suggest that she could be sterilized if she returned to China, the documents do not indicate that [she] would be forcibly sterilized; they only state that she must be sterilized. But doesn t must imply would ? We re also perplexed by the immigration judge s having given little (actually it seems zero) weight, on the ground of bias, to documents in which neighbors and friends of the petitioner reported forced sterilizations, yet giving no greater weight to similar documents submitted by strangers in other cases, on the ground that those were other cases. We criticized this heads I win, tails you lose ap proach to evidence in our opinion in the earlier Chen case. See 715 F.3d at 212. And even if the immigration judge could ignore the documents, he could not, consistent with his de termination that the petitioner s testimony was credible, ig nore as he did her testimony that a sister in law, cousin in law, several aunts, and her mother in law all were sterilized because they d violated the one child policy. The immigration judge concluded (as did the Board when it reviewed his decision) that the petitioner could avoid persecution simply by not registering her children. Yet No. 13 1758 9 that could result in great hardship unless she is wealthy. The immigration judge said she d presented no evidence to demonstrate that the higher expenses incurred by forgoing the benefits obtained by registering in the household regis tration system would cause such severe economic damage that it would amount to persecution. But depending on how great the expense of educating and providing health care for two unregistered children is, registration may be no less costly than the $4,502 fine that she may not be able to pay. It seems questionable to require her to calculate these expense items rather than for the judge to derive them from credible studies. If she can t get better work than as a factory hand, it s hard to see how she can afford to provide private education and private health care for her children. If she neither forgoes registering her children nor pays a fine (what is called a social compensation fee ), she risks forcible sterilization. Yet even if she either forgoes register ing her children or pays the fine, some risk of forcible sterili zation would remain, since Fujian Province appears to have an independent family planning policy stricter than the na tional policy. See Qiu Yun Chen v. Holder, supra, 715 F.3d at 209; Ji Cheng Ni v. Holder, 715 F.3d 620, 626 (7th Cir. 2013); U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2012: China 58; Congressional Executive Commission on China, Annual Report 90 91 (2012) and 2013 Annual Report 92 (quoted below). But presumably the Board s conclusion that if the petitioner either doesn t register her children or pays the social compensation fee the risk of forcible sterilization by the Fujian authorities would not rise to a level that would entitle her to asylum would withstand judicial review. See Huang v. Mukasey, 534 F.3d 618, 620 21 (7th Cir. 2008). The 10 No. 13 1758 crucial question therefore is whether she can afford either the fine, or the costs that failure to register her children would entail. Those costs seem very high, as we ve said, but she made no attempt to quantify them. As to whether she can afford to pay the fine instead, the immigration judge pointed out that she had provided very little evidence re garding her personal financial situation. He also noted that she paid a large amount of money to smugglers to get to the United States and that the most exorbitant fine de scribed in the record [$6,800] ¦ is less than 10% of the [peti tioner s] investment in her restaurant a meaningless ob servation, if indeed the money to buy the restaurant was borrowed and she will return to a factory job if she is de ported to China. But she presented no evidence of how much she and her husband (or other members of her family) paid the smugglers. Maybe there is family wealth, although her having been a factory worker in China suggests other wise. Also missing from the record is evidence of the hus band s earning potential in China. But the record does con tain an affidavit signed by him (though ignored by the par ties and the Board) in which he states that we will ¦ be fined for a huge amount of money because we have violated the [Fujian] Family Planning Policy. ¦ Although we might be able to pay the fines, but we are not willing to because we think we have the right to give births (emphasis added). This could be regarded as a fatal concession. We continue to be distressed, however, by the Board s seeming failure to consider the annual reports of the Con gressional Executive Commission on China, a responsible federal agency, where we read for example that at least 18 No. 13 1758 11 of China s 31 provincial level jurisdictions permit officials to take steps to ensure that birth quotas are not exceeded; in practice, these steps can include forced abortion and forced sterilization. Congressional Executive Commission on China, 2009 Annual Report 153, 371 n. 24, citing the State De partment s 2008 Human Rights Report on China. And evi dently the situation has worsened (though the new policy announcement, discussed at the beginning of this opinion, may herald amelioration): provincial level population planning regulations in at least 22 of China s 31 provincial level jurisdictions explicitly endorse the practice [forced abortion], often referred to as a remedial measure (bujiu cu oshi), as an official policy instrument. Congressional Executive Commission on China, 2013 Annual Report 100, 226 n. 36. And in the Commissioner s 2009 report we read that a township in Fujian Province advised its officials to strictly act on the demand to carry out [sterilization] within one month for women who give birth to a second or third child. Congressional Executive Commission on China, 2009 Annual Report 155. Fujian is reported to have adopted an elaborate system of rewards and penalties for officials who do and do not fulfill forced abortion and forced sterilization targets. Id. at 156. Finally, between October 2012 and July 2013, the Commission noted reports from at least eight provinces (Hubei, Guangdong, Anhui, Shandong, Henan, Guizhou, Hunan, and Fujian) using phrases such as spare no efforts (quanli yifu or fenli), use all means necessary (qian fang bai ji), implement man on man military tactics (shixing rend ingren zhanshu), fight the family planning battle (dahao jisheng gongjianzhan), and assault and storm the fortifica tions (tuji gongjian) to urge officials to implement family 12 No. 13 1758 planning measures. The implementation measures pro moted in these reports were harsh and invasive, including remedial measures, the two inspections (intrauterine device (IUD) inspections and pregnancy inspections), the four procedures (IUD implants, first trimester abortions, mid to late term abortions, and sterilization), and the col lection of social maintenance fees. Congressional Executive Commission on China, 2013 Annual Report 100 (footnotes omitted). Still, both the immigration judge s opinion and the Board s opinion are improvements on what we faced in the Qiu Yun Chen case that we ve been citing. And the govern ment s brief is refreshingly candid in acknowledging defi ciencies in the agency s analysis of China s one child policy. But the petitioner s failure to present evidence concerning her and her husband s financial situation is a fatal weakness in her case. The petition to review the Board s denial of asylum is DENIED.

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