Legal Case Summary

Chen v. Atty Gen

Date Argued: Mon Apr 23 2007
Case Number: A-13-717
Docket Number: 2604793
Judges:Not available
Duration: 25 minutes
Court Name: Court of Appeals for the Third Circuit

Case Summary

**Case Summary: Chen v. Atty Gen. (Docket No. 2604793)** **Court:** United States Court of Appeals for the Third Circuit **Date:** [Insert Date of Judgment] **Background:** The case of Chen v. Attorney General involves a petition for review regarding a final order of removal issued by the Board of Immigration Appeals (BIA). The petitioner, Mr. Chen, a native and citizen of China, sought protection under the Convention Against Torture (CAT) after being ordered to be removed by the Immigration Judge (IJ). **Facts:** Mr. Chen claimed that he would face persecution upon returning to China due to his political beliefs and activities. He provided evidence of prior arrests and mistreatment from Chinese authorities. Mr. Chen applied for asylum, withholding of removal, and protection under CAT, arguing that he had a well-founded fear of persecution and torture. **Procedural History:** After a hearing, the IJ denied Mr. Chen's application, concluding that he did not meet the necessary burden of proof for asylum or CAT relief. The BIA affirmed the IJ's decision, leading to Mr. Chen's appeal to the Third Circuit. **Issues:** The primary issues on appeal included: 1. Whether the BIA erred in affirming the IJ's denial of asylum and withholding of removal. 2. Whether Mr. Chen established eligibility for protection under CAT. **Ruling:** The Third Circuit reviewed the BIA's decision for substantial evidence. The court held that the BIA properly applied the legal standards required for asylum and CAT claims. It found that Mr. Chen's evidence, while compelling, did not sufficiently demonstrate that it was more likely than not he would be tortured upon returning to China. **Conclusion:** The Third Circuit upheld the decision of the BIA, affirming the removal order. The court concluded that Mr. Chen had not met the burden of proof required for asylum or CAT protection and that substantial evidence supported the BIA's findings. **Implications:** This case underscores the high standard of proof required for asylum and CAT claims in immigration proceedings and demonstrates the challenges faced by individuals seeking relief based on fear of persecution or torture in their home countries. **Key Takeaway:** Chen v. Atty Gen. reinforces the requirement that asylum seekers must provide credible evidence of a well-founded fear of persecution or torture to succeed in their claims, highlighting the rigorous scrutiny applied by the courts in such cases.

Chen v. Atty Gen


Oral Audio Transcript(Beta version)

no audio transcript available


. Let me ask your clients. They both came on really good piece of business. Neither one has an advanced degree or a college education. You're under the second part is correct. Neither one has a advanced degree or college education. They both entered illegally. One, using their own passport without a visa. The other one entered without inspection. Okay. Now you ask that because there seems to be some issue about the scope of the policy, the profile, and how would apply to their province? Who's one? The province? Is that how it's called? That's for Xiao. Pretty far from one. I'll ask Ms. Moore who maybe I should address this to more appropriately. But it seems to me that to the extent that there's some issue or ambiguity about the scope of the enforcement of the application of, and enforcement of, the family planning policy of the one child policy in China has applied to Ms. Gao's province. That's Fujuan

. That it seems as though there's some kind of policy in effect to try to encourage persons with college degrees to come back to China and there's been some relaxing of the one child policy based around those kinds of considerations. Exactly. You're under that issue. And China does provide exceptions to people who hear lawfully as either college students or master degree students, or those people who hear as lawful, permanent residents. What China does not do is recognize dual citizenship. So if somebody such as the petitioner and his wife are here illegally and have children, it is supported by the profile that these children are considered Chinese nationals, Chinese citizens upon their return to China. And therefore, they're counted towards the one child policy, which I believe is not in dispute as to the existence. And we believe that the BIA aired in their decision over turning the immigration judge in his grant of their case for a political asylum in that the BIA failed to point down or even discuss the portions of the profile, which discussed this issue of people here who have US students, US citizens and children, but are here illegally or with specific status. We're in both our live-time discussions. It's on page 31 as it's cited by the immigration judge on page 72 of the record. And the immigration judge specifically discussed a profile and I may quote him on page 71 of the record. I believe that the language of the profile of asylum claims and country conditions exhibit six. It gives us some significant guidance as to what could happen to this couple on return to China. It's a very important document in this case. And the court, under board precedent decisions, must give due deference to the profile, to the court by the United States and former state. The profile of asylum claims and country conditions actually deals with persons who have children in the United States exhibit six, page 31, paragraph four, paragraph

. So the immigration judge reviewed the entire profile before deciding making his decision. However, the BIA did not. What the BIA did is only look at portions of the profile and parsed what they thought was relevant together in overturning the immigration judge. And we believe the BIA's decision is not supported by substantial evidence. And this court should feel compelled to remand it and overturn their decision because of that. And this court in the court goes to where you are. And you know, this is Daniel. I'm sorry. I'm going to go ahead. Two guys. I want to get into this question of substantial evidence. It seems to me there is no moral about findings of facts. Both sides agree as to the facts. Yes, Your Honor. All right. That being the case, the substantial evidence should not be rendered a review

. The board tells that the petitioners did not meet their birth. Therefore, it's a law. And therefore, the standard of review, in this case, is as best as it is to know of. Yes, that is correct, Your Honor. And we believe in the noble review of the board's decision by reviewing the entire profile will show that there is a reasonable possibility that these people upon the return will be subject to the one child policy plan because they are here, unlawfully, not in status. And their children, therefore, will be counted as Chinese citizens upon the return to China. So, again, I'm sorry I'm interrupting you. This court does not, in a published opinion, mess issue at one spouse by on the other spouse is as it is as it is here. The wife, the petitioner, but blame a spy on them because of accurate limitations. However, the spouse and our youth in her behalf, now, the other courts have appealed. I have held that that's proper for the spouse to do that. I correct that we have not had a decision in this court on that issue. You are correct in that, Your Honor, that this court is not specifically addressed at that issue, but you also correct in that the spouse, the female spouse, is entitled as a derivative under the board decision of CYZ to be entitled to a grant if China, the male spouse, is granted asylum. So, that will be that problem for the female spouse. And I would, if I may continue to.

.. I'll have that work in this context because the fear of persecution, I guess it would be my greatest. The fear of persecution here, the way I'm looking at the rear amendments, would really go to her while I'm in the fear. He, they both can argue the impact of the policy in the support of him as the member of Chauvin, they can not have. But that, I'm not certain, is as clear as the persecution goes, as the insertion of the IUD, which would pretty much, I think, get into the language of the Congress used in passing the amendment. That's really her argument in terms of the well-funded fear of persecution. He's saying that even though that is her well-founded fear, she can take advantage of that, that he is the one making the claim if he argues that her well-funded fear is sufficient to allow him with holding from her removal. Is that what you're arguing? Yes, you're on it for political asylum, not just for the whole of the government. It's probably the asylum because of the time limit. Right, but under withholding, yes, that would be his argument because any abortion or future sterilization is a persecution upon her, as well as him, as the spouse of a person who is being persecuted through the sterilization or abortion. And the board we've heard that, in the matter of S.L.L., recently, in saying that spouse isn't titled to the same protection if the marriage is recognized by the Chinese government. Now, this court in reviewing the program, excuse me. I got to look and see

. Sure, I didn't really follow you in the saying. I understand that the forced abortion, forced sterilization, affects both spouses. I didn't understand your argument with regard to IUD. Well, if the female spouse, if the female, in this case, is required to wear an IUD, let's say, act of forced coercive family planning. And the male spouse could be granted asylum or excuse me withholding based upon the fact that the fiend case wife would be subject to a coercive family planning policy. Let's see. Okay, thank you. Now, this court in reviewing the profile has said in quote 386-3556 that the board's analysis failed to account for differences in enforcement based on immigrants on an immigrant's legal status in the United States. The 1998 profile references anecdotal evidence to that effect. That quote, possession or lack of possession of US permanent residence status is the key criterion for determining whether couples are subject to family planning restrictions. So, when this court reviewed the whole profile and determined the legitimacy of a claim that somebody who's returning with overseas children will be counted towards a family planning, the board simply ignored that aspect of the profile. And by doing so, we believe this court in their denoubable review should overturn the BI's decision, and then it back to the immigration judge to reinstate through previous decision of asylum. I remind the court that the burden for the petitioner is a reasonable possibility. And that is not a very high burden or reasonable possibility, is the objective standard. And the profile, along with other evidence, and I know this court will not look at evidence outside the record. But the evidence clearly states that there's a family planning policy, that China does not have dual citizenship, that those people here in legally who return are do not fallen under any of the exceptions

. And just because the Chinese government does not tell the US government of all the backs of abortion sterilizations that occur does not mean it doesn't happen. This is a close common in society. They're not going to disclose this to us or any other government. Given the nature of the kind of questions that are before us, with regard to this issue of the missing transcript, is there really anything in that transcript that we need or the CIA would need on remand? I don't believe so, you want to? OK. I believe what's important is the background evidence that was submitted, which is mainly here is the 1998 profile. I'm sure this court is aware of all the recent country reports have come out since the 1998 profile. I would cite it thousands in last year, 2005, country, what thousands of abortions and sterilizations last year that occurred and millions over the last couple of years. So the two thousand five, you said you sure were? Or whoever. If you write this not in the record, it's not something we can consider. I understand and I will draw that part of my argument. You want to, I would ask that I'd be given five minute of above time to answer your question. I'll see you in the next one. OK. Thank you. Can I have a? Yes. Can I have a glimpse, man? Can I print in? Please support

. My name is Brooke Maura for the Attorney General. And it appears that the issue before the court today is whether the country reports on the record compel the conclusion that petitioners had a well-founded fear of future persecution and a clear probability of forced sterilization or forced abortion. And it's, the evidence and records reports that boards finding that there was no well-founded fear or their probability of future persecution through forced sterilization of abortion or forced IUD insertion. Well, it also says, or resistance to those family policies could also constitute persecution. If you're being treated in a particular way, not only having sterilization or the IUD, but if you're resisting those policies, but if this is not a case of resistance, that would be, this would be more of the IUD in the course of policy itself as opposed to resistance to the policy. Does correct us. What should we do with the profile discussion about the existence of the policy, particularly in the province that most applies to them? And am I incorrect that I'm reading the exclusions to that policy or the exceptions to that policy as China's attempt to try to re-encourage citizen Chinese citizens who have high education to return to China, and that would not apply to either of these two? Well, no, they would not apply because neither one of them had advanced degrees and they was one there. But I did want to clarify as far as the same reports in a Ministry of Record on page 300, what he was referring to earlier as the one child ban and there was actually in report itself said that there was actually no report of an actual policy in respect to children born outside of China in the United States where that would be applicable in the same way. But why wouldn't it be applicable? These are going to be Chinese citizens whether they're back, the kids are going to be Chinese citizens. The couple clearly will be viewed as having a child already when they come back. What difference would it be to the policy that this child was born in the United States as opposed to being born in China, why wouldn't they be treated the same way? Well, at the time as the report came before, the policy wasn't actually in place. That policy came later in like 2002 when the policy was actually announced and when public. So in this report there is actually no policy that China adopted about the one child that came later. Well, I'm looking at the pages are not consistent. I'm looking at something on the top of which is the number 31, it's page 31 of some document. And the heading is China, Poland, profile of asylum, claims and country conditions

. And it appears to be the United States Department of State, the date of the April 14, 1998. And the caption on the table of contents is China profile with asylum, claims and country conditions. And that's not necessarily reading it. They clearly have a discussion in here which leads me to think that there's a national policy which is one thing and then pressure, sometimes intense pressure, put out local administrators which is sometimes a very different thing. And that local administrators have quotas in terms of the number of children being born in their provinces and that the local politicians or officials will oftentimes will be young with the policy of authorizes and enforcement of policy in their province. So if I'm right about that, why wouldn't that in another self-cute rise to a well-funded fear? Well, as it also states in reports, it states that the Chinese government prohibits the use of force to compel a person to submit to a force in her sterilization. And there are those road officials that do go through with that, but they do not condole the practice of force to force in. People would think that argument is much more difficult for the petitioner to make. And that's why I tried to focus on the IUD. And now look at this in terms of force to sterilization or forced abortion, but the forced insertion of IUD, which under the act is the same thing. Why wouldn't there be a realistic or well-funded fear if they go back, given their families to that, that she will have to have an IUD inserted? Well, I think also in there, it also states that such IUD insertion also comes when there are two maybe three children, depending on the sex of the children in the order that they came, when they don't conform to the threat of sanctions or monetary fines, which is also listed on page 294 with the administrative record in that same report. But how does that help you? Well, it's about, I mean, the petitioner has one child and she's not necessarily in violation of the one child. No, but they want to show them. And there are exceptions within the policy that allows them to have another child in four years. And she's not going back there with the ability to be, you know, they're not forcing her to undergo the IUD insertion. I'm in her fearing here

. I understood that exception to be if it's a girl child. Am I not? Now, the girl child you may request another permission for another child four years later. This was a boy child. That is correct, I hope that. Yes. All right, now that I've been around with you, let me give you my first question. The decision here was that the petitioners did not meet the firm and the VA set forth. Found the variance of enforcement and China. The possibility of non-pricotory methods of enforcement and the uncertainty about how a child born broad is treating under the one child's pulse of a policy. I add to that the statement in the policy saying as far as this problem, major frame of policy is generally a one child policy. However, in some southern urban areas, if the parents first child is female, may apply after a six years. Let's get to see the second. So, you start out with the problem. In the province of the petitioners, the major premise is the policy is generally a one child policy. That is in the department. I'd like you to comment on the issue, on the things that I've just presented. Thanks. We have a few things, Ms. Barr. A little bit. I was a little bit. If I can clarify. Let me just say it again. As first I was being forward in its decision, that the petitioners did not meet the burden gave three reasons. And I repeated it. So it's all in one paragraph. All in one paragraph. I think it's all in one sentence. In the board's opinion. Well, the board using, I mean, I think you'd like me to comment on the board using the report. No, the board's reason. First, I'll talk about the various of imports that I gave three reasons

. Thanks. We have a few things, Ms. Barr. A little bit. I was a little bit. If I can clarify. Let me just say it again. As first I was being forward in its decision, that the petitioners did not meet the burden gave three reasons. And I repeated it. So it's all in one paragraph. All in one paragraph. I think it's all in one sentence. In the board's opinion. Well, the board using, I mean, I think you'd like me to comment on the board using the report. No, the board's reason. First, I'll talk about the various of imports that I gave three reasons. Variance of enforcement. So those are not worried methods to enforce. And the uncertainty about child porn, a variety of reasons under the one. I didn't understand that. And you, can you, I've been sitting and get hold of. Chair me. Are we not? I'm. What's your. Judge, I'm sir. Can you refer us to the paragraph. I'm. Can you never know. Then we can focus on that. All right. It's like on page three of their opinion. Pause the page

. Variance of enforcement. So those are not worried methods to enforce. And the uncertainty about child porn, a variety of reasons under the one. I didn't understand that. And you, can you, I've been sitting and get hold of. Chair me. Are we not? I'm. What's your. Judge, I'm sir. Can you refer us to the paragraph. I'm. Can you never know. Then we can focus on that. All right. It's like on page three of their opinion. Pause the page. It's the one paragraph. Starting out in life of the various of enforcement child. A possibility of not such a story methods of enforcement. And I'm certain about how a child born and brought is for us, treated under the policies. We find us. If we put the sponge did not. Burning up proving eligibility. The whole decision, the rationale for the decision is based on that one set. Did you hear me? Did you understand? Yes, I did. All right. And yes, the board found is a factual matter that the country reports was just referring to here. They felt that the future persecution was not likely and that there was no policy available for children born inside of the US. I am aware of a, as cited in a footnote in a brief, I am brief, I am aware of reports subsequent decision in the matter of CC that thoroughly examined the question of the. The policy that China has and analyzed it and looking at more recent country reports. However, I do submit that such reports are not before the court as we have the 1998 report. But as they said that in the subsequent, you know, in CC, in matter of CC, that the reports found that China finds it is against the law to forcefully sterilize the boards and one and no longer continue those practices and instead enforce fines and educational restrictions

. It's the one paragraph. Starting out in life of the various of enforcement child. A possibility of not such a story methods of enforcement. And I'm certain about how a child born and brought is for us, treated under the policies. We find us. If we put the sponge did not. Burning up proving eligibility. The whole decision, the rationale for the decision is based on that one set. Did you hear me? Did you understand? Yes, I did. All right. And yes, the board found is a factual matter that the country reports was just referring to here. They felt that the future persecution was not likely and that there was no policy available for children born inside of the US. I am aware of a, as cited in a footnote in a brief, I am brief, I am aware of reports subsequent decision in the matter of CC that thoroughly examined the question of the. The policy that China has and analyzed it and looking at more recent country reports. However, I do submit that such reports are not before the court as we have the 1998 report. But as they said that in the subsequent, you know, in CC, in matter of CC, that the reports found that China finds it is against the law to forcefully sterilize the boards and one and no longer continue those practices and instead enforce fines and educational restrictions. Yes, I, you are taking a view that forced or coerced, you see, not forced, but coerced compliance with the one child policy does not even have itself by so level of persecution. That's what you're arguing. There has to be some kind of coercion that would be having a epidemic within it, the kind of treatment that we more traditionally view as persecution, such as forced insertion of an IUD, forced sterilization of abortion. You're saying absent that and that's, I assume, how you're interpreting the term non-persicutory methods. Let's adopt that term. You're saying if non-persicutory methods are used to force compliance, but the coerced compliance for the one child policy, that is not the kind of persecution the Congress had in mind when it enacted the amendment to the silence that she's not sure about. That's correct. Well, I'm sorry, I'm up to it. I hadn't really, I'd always viewed these cases as compliance with coerced compliance to China's one child policy, but otherwise somebody want more than one child as giving someone an asylum claim if they can prove it. You may be right, Ms. Marl, it's more narrow view than I'd ever taken before. I don't know, you may be right. The end result would certainly be the same. To the extent that Congress was trying to say that as someone is going to be sent back to China and because of their return to China, they're going to have to restrict their family size in a way that they otherwise would not but for the one child policy. We recognize that in the United States as crumbs for a cell. That's the way I've always viewed that language, but it's not what it says, and you're arguing that that's to the blow up interpretation of the statute

. Yes, I, you are taking a view that forced or coerced, you see, not forced, but coerced compliance with the one child policy does not even have itself by so level of persecution. That's what you're arguing. There has to be some kind of coercion that would be having a epidemic within it, the kind of treatment that we more traditionally view as persecution, such as forced insertion of an IUD, forced sterilization of abortion. You're saying absent that and that's, I assume, how you're interpreting the term non-persicutory methods. Let's adopt that term. You're saying if non-persicutory methods are used to force compliance, but the coerced compliance for the one child policy, that is not the kind of persecution the Congress had in mind when it enacted the amendment to the silence that she's not sure about. That's correct. Well, I'm sorry, I'm up to it. I hadn't really, I'd always viewed these cases as compliance with coerced compliance to China's one child policy, but otherwise somebody want more than one child as giving someone an asylum claim if they can prove it. You may be right, Ms. Marl, it's more narrow view than I'd ever taken before. I don't know, you may be right. The end result would certainly be the same. To the extent that Congress was trying to say that as someone is going to be sent back to China and because of their return to China, they're going to have to restrict their family size in a way that they otherwise would not but for the one child policy. We recognize that in the United States as crumbs for a cell. That's the way I've always viewed that language, but it's not what it says, and you're arguing that that's to the blow up interpretation of the statute. That's correct. And you know which one I, let's go a little bit because we took some of your time because the technical difficulties. Well, as I stated, the recent decision in the matter of CC basically brought forth the more recent reports. And it's also, it's consistent with this course approach to look at the evidence before it and look at the current country conditions. And if this court is not comfortable looking at CC itself for showing how the policies have changed and how they have been altered, they could always remount it back and the record could be updated in order to include these new policies where there are no more cruelest sterilizations or abortion. I never say no more. This is a huge country. Well, better than not supported or sanctioned by the government. Does matter of CC do with fruits, one profits? Does that adjust that province? I believe it does, but. An issue, well, I look at it, the issue obviously is a well-founded theory. It's not certainty or anything like that. It's just whether or not he has a she has through him a well-founded fear. Given the uncertainty that we seem to have, at least I know, why wouldn't that give rise to a well-founded fear that is a policy, the national level that may or may not be consistently enforced at the local level? Clearly, there are these history of local people on the provincial level who are under pressure to maintain the size of the local communities through this one child policy. There are instances in the profile of those local provincial officials going off in a wrong manner and doing things which are inconsistent with the national policy. They may or may not be sanctioned for that, but whether or not they are sanctioned for that, why wouldn't that in and of itself give rise to a well-founded fear that I'm saying the IUD would be inserted, and forget the economic version, the IUD would be inserted at some reasonably foreseeable point. Maybe that would be the second show, but perhaps the third is the fourth show

. That's correct. And you know which one I, let's go a little bit because we took some of your time because the technical difficulties. Well, as I stated, the recent decision in the matter of CC basically brought forth the more recent reports. And it's also, it's consistent with this course approach to look at the evidence before it and look at the current country conditions. And if this court is not comfortable looking at CC itself for showing how the policies have changed and how they have been altered, they could always remount it back and the record could be updated in order to include these new policies where there are no more cruelest sterilizations or abortion. I never say no more. This is a huge country. Well, better than not supported or sanctioned by the government. Does matter of CC do with fruits, one profits? Does that adjust that province? I believe it does, but. An issue, well, I look at it, the issue obviously is a well-founded theory. It's not certainty or anything like that. It's just whether or not he has a she has through him a well-founded fear. Given the uncertainty that we seem to have, at least I know, why wouldn't that give rise to a well-founded fear that is a policy, the national level that may or may not be consistently enforced at the local level? Clearly, there are these history of local people on the provincial level who are under pressure to maintain the size of the local communities through this one child policy. There are instances in the profile of those local provincial officials going off in a wrong manner and doing things which are inconsistent with the national policy. They may or may not be sanctioned for that, but whether or not they are sanctioned for that, why wouldn't that in and of itself give rise to a well-founded fear that I'm saying the IUD would be inserted, and forget the economic version, the IUD would be inserted at some reasonably foreseeable point. Maybe that would be the second show, but perhaps the third is the fourth show. We believe that as far as the application nowadays, it's not the forced. I mean, like, as you said, as disregarding the economic sanctions, and they're not forcing abortions any longer, and they're no longer forcing the sterilizations or the IUD insertions, they're falling under a uniform country policy, and they're not being isolated or persecuted necessarily. It's a uniform country law. Right. You guys, I'm going to just go back to what George Alders were asked, because that last paragraph that he's picking up on is simply can be interpreted in different ways. Again, focusing on a well-founded fear, which I think is about a very different forcement, which I was very just to ask you about. The possibility of non-pursucutory methods of infosuces this policy, and the uncertainty about how your child is going to be treated. Why wouldn't all that, I'm asked this a couple of different ways, but I'm not trying to say your answer, why wouldn't all that give rise to a well-founded fear, which is the text, not a belief to a mathematical certainty, perhaps, but at least to a well-funded fear? Well, I believe that the petitioner's speculative claims, I mean, as far as when she, when and if she does have more children, the fact that the methods that they are talking about, non-pursucutory as it goes to what I said to you before, are merely the educational and the monetary fines that they're going to be paying. It's no longer a physical harm or any type of physical restriction on there. If they went through, they will to have those children and they do proceed to violate the one child policy, they can do so without physical harm. However, they will have financial and monetary consequences. Any else but no. Thank you very much. The Vice-Majorette address a few issues beginning with Judge Alessert's question regarding the BIA decision and page three of their decision page four of the record. The BIA in their decision, the first one they said is that there's the possibility of non-pursucutorial methods of enforcement. Sure, there is a possibility of non-pursucutorial methods, but as Judge McKee aptly pointed out, the standard is, is there a reasonable possibility of a persecutorial methods? We believe the profile exactly answers that question and the answer is yes, and as the court knows in the Kredosa front sake, if we have to put a mathematical equation to it, a reasonable possibility has been termed to be one out of ten

. We believe that as far as the application nowadays, it's not the forced. I mean, like, as you said, as disregarding the economic sanctions, and they're not forcing abortions any longer, and they're no longer forcing the sterilizations or the IUD insertions, they're falling under a uniform country policy, and they're not being isolated or persecuted necessarily. It's a uniform country law. Right. You guys, I'm going to just go back to what George Alders were asked, because that last paragraph that he's picking up on is simply can be interpreted in different ways. Again, focusing on a well-founded fear, which I think is about a very different forcement, which I was very just to ask you about. The possibility of non-pursucutory methods of infosuces this policy, and the uncertainty about how your child is going to be treated. Why wouldn't all that, I'm asked this a couple of different ways, but I'm not trying to say your answer, why wouldn't all that give rise to a well-founded fear, which is the text, not a belief to a mathematical certainty, perhaps, but at least to a well-funded fear? Well, I believe that the petitioner's speculative claims, I mean, as far as when she, when and if she does have more children, the fact that the methods that they are talking about, non-pursucutory as it goes to what I said to you before, are merely the educational and the monetary fines that they're going to be paying. It's no longer a physical harm or any type of physical restriction on there. If they went through, they will to have those children and they do proceed to violate the one child policy, they can do so without physical harm. However, they will have financial and monetary consequences. Any else but no. Thank you very much. The Vice-Majorette address a few issues beginning with Judge Alessert's question regarding the BIA decision and page three of their decision page four of the record. The BIA in their decision, the first one they said is that there's the possibility of non-pursucutorial methods of enforcement. Sure, there is a possibility of non-pursucutorial methods, but as Judge McKee aptly pointed out, the standard is, is there a reasonable possibility of a persecutorial methods? We believe the profile exactly answers that question and the answer is yes, and as the court knows in the Kredosa front sake, if we have to put a mathematical equation to it, a reasonable possibility has been termed to be one out of ten. Is there a reasonable possibility of non-pursucutorial enforcement? Yes, just as there's a reasonable possibility of non-pursucutorial enforcement, but we do not have to eliminate the chances of non-pursucutorial enforcement. We just have to discuss the issue of whether there is a possibility of persecutorial enforcement. And the second standard, excuse me, recently for the BIA, the uncertainty about how a child born a boy is treated on their policy. What uncertainty is there? We discussed this, piece 31 of the profile, discussed as the exceptions to children born a boy. There really is no uncertainty. That's why the boy's decision is flawed. As far as matter of CC, those were completely different factual facts, excuse me. It was a, the child was a female child, the first child was a female child, the second child came six years later after the first child, so there was no actual violation of any family planning policy because they waited the standard waiting period, whether it's four or five years depending on the province. And lastly, in matter of CC, I think the boy was really trying to undermine John Ayer, the mom of her, who has since deceased, who has testified in front of Congress, the relevant or importance and weight that his affidavit, which was being submitted in these cases, should be given. So in conclusion, we believe that the statute 1101-42A is plain meaning in that resistance to forced, a coerced population planning is a category that qualified for asylum. We believe that to respondent has provided enough evidence to support his subjective leave, genuine fear, with the profile, and the profile clearly states that his children are not granted any exceptions, and therefore he has met his burden and the BIA's decision is wrong, in the case should be remanded to the immigration judge to mean state his decision. Do you agree? I assume you do, good. Ms. Morrow's reading of non-prisgatory versus placgatory, that's this of enforcement. Well, I agree with the theory, but again, we're dealing with a close communist government who is giving out information that they think important, that they think well. No, no, no, no, no, no, that's a different issue

. Is there a reasonable possibility of non-pursucutorial enforcement? Yes, just as there's a reasonable possibility of non-pursucutorial enforcement, but we do not have to eliminate the chances of non-pursucutorial enforcement. We just have to discuss the issue of whether there is a possibility of persecutorial enforcement. And the second standard, excuse me, recently for the BIA, the uncertainty about how a child born a boy is treated on their policy. What uncertainty is there? We discussed this, piece 31 of the profile, discussed as the exceptions to children born a boy. There really is no uncertainty. That's why the boy's decision is flawed. As far as matter of CC, those were completely different factual facts, excuse me. It was a, the child was a female child, the first child was a female child, the second child came six years later after the first child, so there was no actual violation of any family planning policy because they waited the standard waiting period, whether it's four or five years depending on the province. And lastly, in matter of CC, I think the boy was really trying to undermine John Ayer, the mom of her, who has since deceased, who has testified in front of Congress, the relevant or importance and weight that his affidavit, which was being submitted in these cases, should be given. So in conclusion, we believe that the statute 1101-42A is plain meaning in that resistance to forced, a coerced population planning is a category that qualified for asylum. We believe that to respondent has provided enough evidence to support his subjective leave, genuine fear, with the profile, and the profile clearly states that his children are not granted any exceptions, and therefore he has met his burden and the BIA's decision is wrong, in the case should be remanded to the immigration judge to mean state his decision. Do you agree? I assume you do, good. Ms. Morrow's reading of non-prisgatory versus placgatory, that's this of enforcement. Well, I agree with the theory, but again, we're dealing with a close communist government who is giving out information that they think important, that they think well. No, no, no, no, no, no, that's a different issue. I'm just trying to get a heard reading of the amendment to the statute. Then you are agreeing that it's not the fact of the policy which could rise to a claim, but it's the manner of enforcing that policy which could rise to a claim. Well, I think they have to be read conjunctively together in that it is the fact that there is a policy which in 2002 was codified and became a law, and how the law is affected in that how is it enforced? And we will let this on as only enforced through monetary encouragement than this judgment. If that was accurate, then I wouldn't be here before the court today, but fortunately, it's not accurate. And that's why Congress expanded the definition of political asylum to include a forced, excuse me, resistance to family planning because the facts are clear that China has a one child policy and they're enforcing it whatever by whatever means necessary. Okay, well that's a different, it's an answer to a different question. Can you try to focus then on the one issue of our government? If you could just clarify the question one more time, I'll try to respond to that. You can clearly enforce that policy in a couple of different ways. One is in a manner which I think we would all agree and I think Ms. Marl would also agree he is perceptual and that is forced sterilization, forced abortion, and then add to that insertion of an IUD which is further down to the threshold, but still pretty, pretty severe invasion. On the other hand, you could be enforced by saying, look if you don't honor this policy, you already had one child who would never work in this problem if you have a second child. By an addition to that, the tax, this is all theoretical. The tax that we assess on your household will be doubled if you have a second child. Those, what I would call non-pursu-cutorial, persecutorial methods, Ms. Marl is arguing, I think, and please excuse me if I'm not getting that it's not the fact of the policy which could rise to a cell and claim, is the method of enforcing that policy which could rise to it. Therefore, the latter scenario, where you're only being with loss of job being told there's not going to be promoted on your job, perhaps, with some kind of financial ramification by virtue of you not following the policy

. I'm just trying to get a heard reading of the amendment to the statute. Then you are agreeing that it's not the fact of the policy which could rise to a claim, but it's the manner of enforcing that policy which could rise to a claim. Well, I think they have to be read conjunctively together in that it is the fact that there is a policy which in 2002 was codified and became a law, and how the law is affected in that how is it enforced? And we will let this on as only enforced through monetary encouragement than this judgment. If that was accurate, then I wouldn't be here before the court today, but fortunately, it's not accurate. And that's why Congress expanded the definition of political asylum to include a forced, excuse me, resistance to family planning because the facts are clear that China has a one child policy and they're enforcing it whatever by whatever means necessary. Okay, well that's a different, it's an answer to a different question. Can you try to focus then on the one issue of our government? If you could just clarify the question one more time, I'll try to respond to that. You can clearly enforce that policy in a couple of different ways. One is in a manner which I think we would all agree and I think Ms. Marl would also agree he is perceptual and that is forced sterilization, forced abortion, and then add to that insertion of an IUD which is further down to the threshold, but still pretty, pretty severe invasion. On the other hand, you could be enforced by saying, look if you don't honor this policy, you already had one child who would never work in this problem if you have a second child. By an addition to that, the tax, this is all theoretical. The tax that we assess on your household will be doubled if you have a second child. Those, what I would call non-pursu-cutorial, persecutorial methods, Ms. Marl is arguing, I think, and please excuse me if I'm not getting that it's not the fact of the policy which could rise to a cell and claim, is the method of enforcing that policy which could rise to it. Therefore, the latter scenario, where you're only being with loss of job being told there's not going to be promoted on your job, perhaps, with some kind of financial ramification by virtue of you not following the policy. On the one hand she would say, doesn't give rise to a cell and I would think that she's saying, that the entire resultant was. I would agree and I think that the circuit courts have spoken on this that simply monetary fines are not enough to raise to a level of persecution at the Congress intended. However, there are exceptions to that where the monetary fines rise, excuse me, monetary penalties rise to such a certain level that they are considered coercive, but yes, I would agree. And lastly, regarding the speculative nature and the fact that they only have a male child, I would remind the court that the second circuit has stayed and that a denial based upon the speculative argument of speculative nature is not warranted unless the female is shown to be medically unable to have any additional children. Thank you. Thank you very much. It was an honor and I mainly practice before the sentence. Okay, I hope we see again, you both did a very fine job and unfortunately we don't always see petitioners in these cases represented by the kind of counsel that their issues really merit. So it's a delight seeing that your argument was a big up to us and this morning I'm not sure I've seen you before or not but hopefully we'll see you again. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you

. Take the man under your advisement. The next case is AARP versus EEC