Wednesday, January 16, 2008

Yu: BIA Can Reject Dr. Aird Affidavit On China Family Planning

Xiu Jin Yu v. Mukasey, No. 06-3933 (3d Cir. Jan. 15, 2008).

In this precedential decision, the Third Circuit held that the BIA had substantial evidence to support its conclusion in an asylum case that a Chinese couple did not have an objectively reasonable fear of being forcibly sterilized if the US forced the couple to go back to China. The question lies with fears about China's family planning regime and whether there is an objectively reasonable fear that China may forcibly sterilize a couple that had a second child while living in the United States.

The asyum-seeker used an affidavit by demographer Dr. John Aird that offers an opinion that couples cannot expect to be exempt from China family planning policies. On the other hand, the BIA stuck to its decision in Matter of C-C-, 23 I&N Dec. 899 (BIA 2006) to say there was no objectively reasonable fear.

The BIA gave more weight to the contrary views of State Department reports and noted Dr. Aird's opinion was not based just on a pool of documentary evidence and did not speak specifically to whether someone with two children might be forcibly sterilized. The Third Circuit's level of review is extremely limited -- only whether there is substantial evidence to support the factual finding by the BIA. Yes, there was substantial evidence.

The best strategy, it seems, is to get affidavits that include opinions based on personal knowledge of the dangers in China, to get more reports on what is happening in China, and to convince an immigration judge or the BIA of what is really happening. When there is conflicting evidence, it's not clear how much you need to convince judges and the BIA that your view should be the prevailing view of the court.


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