Xiu Chen v. Eric Holder, Jr. , 500 F. App'x 533 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 8, 2013*
Decided February 5, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 12-2654
XIU LING CHEN, Petition for Review of an Or-
Petitioner, der of the Board of Immigra-
tion Appeals.
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
Order
We remanded this matter to the Board of Immigration Appeals so that it could re-
ceive further evidence and determine whether, as a practical matter, if returned to Chi-
na, petitioner Xiu Ling Chen would face financial penalties so severe as to amount to
“force” within the meaning of 8 U.S.C. §1101(a)(42)(B), which provides that a person
“who has been forced to abort a pregnancy or to undergo involuntary sterilization” is
entitled to refugee status in this nation. Xiu Ling Chen v. Gonzales, 489 F.3d 861 (7th Cir.
2007). The Board remanded to an immigration judge, who ruled against petitioner. The
Board then dismissed petitioner’s appeal.
* This successive petition has been submitted to the original panel under Operating Procedure 6(b).
After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed.
R. App. P. 34(a); Cir. R. 34(f).
No. 12-2654 Page 2
Before the IJ, petitioner presented evidence about the maximum fines (or “society
distraction fee”) assessed in Fujian (her province) but did not present any evidence
about the probability that she would be required to pay the maximum fines, even
though our opinion had identified this as a subject to be addressed. The IJ concluded
that petitioner would need to choose between registering her US-born children (regis-
tration would require her to pay fines) and the costs of not registering them (unregis-
tered children do not receive subsidies for education and health care). The IJ concluded
that neither the fines associated with registration nor the loss associated with non-
registration would suffice to classify petitioner as a refugee. The Board agreed, observ-
ing that petitioner had not presented evidence showing what was likely to happen to
her, but had simply presented a translated compilation of statements (of uncertain reli-
ability) circulating on the Internet. Like the IJ, the Board found petitioner’s submissions
unreliable and difficult to evaluate. Petitioner did not present any evidence from an ex-
pert on China’s treatment of returning citizens who had children while abroad. Nor did
she present any official statements of China’s public officials (national or provincial).
Petitioner’s brief in this court complains that the IJ and Board did not decide what
financial exactions China normally would impose on a returning alien in her position.
Such a finding is important under this court’s 2007 decision. See 489 F.3d at 862–63. But
the reason this finding was not made is that petitioner did not present evidence on that
question. As the applicant for asylum and withholding of removal, petitioner bears both
the burden of production and the risk of non-persuasion. 8 U.S.C. §1158(b)(1)(B); 8
C.F.R. §208.13(a).
Petitioner renews a contention that she made in 2007, and that we rejected: that she
will be forcibly sterilized should she return to China. The Board found that Fujian Prov-
ince has not used involuntary sterilization during the last decade. Substantial evidence
supports that conclusion.
The petition to set aside the Board’s decision is denied.