Zhao V. Holder, Asylum Applicant due to China’s 1 Child Policy

Here at JCS IMMIGRATION Law Office in Los Angeles California, our immigration lawyer follows closely developments in the area of asylum law, as asylum case law changes rapidly and the USCIS Los Angeles asylum office reviews most of the asylum cases out of the entire country.  Our Los Angeles office has helped many applicants for asylum receive asylum status.  This is a new development in the area of asylum law as pertaining to a Chinese applicant’s claim that her violation of one-child policy will lead to prosecution should she be returned to China

Background on Ms. Yan Rong Zhao, Respondent

Ms. Yan Rong Zhao appeals to the U.S. Court of Appeals for the Ninth Circuit following the denial of her motion to the Immigration Board of Appeals to reopen her case. Ms. Zhao is a Chinese national who is unmarried and has two children, in direct contravention of China’s strict family planning policy. Zhao fears that if forced to return to China, she will face persecution, including undergoing a forced sterilization surgery.

In denying Zhao’s motion to reopen, the Board of Immigration Appeals erred in finding that Zhao had not presented a well-founded fear of persecution.  The Board of Immigration Appeals (BIA) indicated that Zhao was numerically barred from filing a motion to reopen her removal proceedings because generally a petitioner can only do so once. However, there are exceptions to this rule, when the petitioner can show, “changed country conditions arising…the country to which removal has been ordered, if such evidence is material and was not available…”. However, since, Zhao’s first motion to remand was filed before a final administrative decision in her case was made, Zhao is not subject to the one-time limit on filing and therefore need not present evidence of “changed country conditions.”

China’s Strict Child Policy May Allow for Grounds of Asylum

In addition, in cases involving China’s family planning policy, the BIA reviews “the details of local family planning policies, proof that the alien violated such policies, and evidence that local enforcement efforts against the violation will rise to the level of persecution, and looks to the “alien’s local province, municipality, or other locally-defined area.” Zhao comes from Duhu Town in Taishan City, which is in the province of Guangdong. Zhao’s brother provided an affidavit in which he stated that he went to the Family Planning Office in their hometown and “asked if my younger sister would suffer from forced sterilization upon her return to China. The family planning staff told [him] the following: Your younger sister, Yan Rong Zhao, has already severely violated the family planning policy which requires wearing an IUD after one child and sterilization after two children.” Here, the BIA departed from its own precedent by arbitrarily restricting the evidence that Zhao could present only to her municipality. Without showing cause for the restriction, this subjects petitioners to an administrative shell game.

Lastly the BIA implies that Zhao must point to one piece of evidence that conclusively proves that she would be subject to persecution if returned to China. No authority shows a requirement one conclusive piece of evidence. Instead, the BIA should have looked at the totality of the evidence to determine whether Zhao had satisfied her burden of proof.

Conclusion

Accordingly, the BIA erred in determining that Zhao was numerically barred from reopening her case, erred in imposing restrictions on the evidence that could be presented, and failed in considering the totality of the evidence as tendered.

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