Matter of H-L-H- & Z-Y-Z-: Asylum Based on USC Children Born Abroad Denied to Chinese Applicants

Matter of H-L-H- & Z-Y-Z-: Asylum Based on USC Children Born Abroad Denied to Chinese Applicants

A Chinese couple applied for asylum on the basis of their two United States citizen children.  The family alleged that the wife would be subjected to forced sterilization and the family to be subjected to fines because having two children is a violation of the China’s one-child-only policy.

As evidence of their claim, they submitted affidavits from family members and friends, newspaper articles about the country policy, and an affidavit from the wife’s mother stating that she has spoken with the local Family Planning office that would have jurisdiction over the family, whom informed her that the family would be subjected to the alleged penalties.

The Immigration Judge found the respondents’ testimony credible and the evidence submitted compelling enough to grant their application for asylum.  The Government appealed, alleging that they did not adequately meet their burden of proof.

The BIA reconsidered the respondents’ applications, and, agreeing with the Government, held that they did not meet their burden of proof.  The Appellate court found especially compelling State Department country reports that stated that US officials were not aware of any official policy in China that mandates sterilization because of the birth of two or more children abroad and instead reported that the government policy of prohibited the use of physical coercion to force sterilization.  The court deemphasized the articles submitted by the Respondents on the basis that they were not adequately authenticated, having to titled author and failing to provide any specific details that supported the Respondents’ contentions.  The court similarly disqualified the affidavits of the family members and friends, specifically stating that they should not be given heavy evidentiary weight since they are not subject to cross-examination and also failed to provide sufficient detail to meet the high burden of proof for fear of persecution.  Because they were not able to show that any specific evidence to show that the wife would likely to subjected to forced sterilization, and that no evidence was submitted to show that the fines would be severe enough to put them at an economic disadvantage, the court vacated the Immigration Judge’s grant of asylum.

Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010).