第七联邦上诉法院2013年12月11日公布了一个陈姓女士的案子。因这个案子谈到单独两孩等问题，与我破例发表的帖子有关，而且谈到许多其它问题，所以转发在此处，希望它能对类似一胎化庇护的案子有帮助。可能大部分网友不能读或对不懂这一英文案例。先让我总结如下吧：
案例的内容是福建一女士在美生了两个孩子，担心回国遭强迫结扎，申请了庇护。法官拒绝了庇护，该女向移民上诉委员会上诉，又遭拒绝。最后是向联邦上诉法院上诉。联邦上诉法院拒绝了上诉。决绝的原因主要是她的律师在49页的上诉信中都是剪剪贴贴，自己只写了五句话。联邦法院说，法院不能代替写上诉信，进而据以做一有利于上诉人的决定。马马虎虎的上诉信常常表明案子是弱的。但这个案子不弱，移民上诉委员会的决定有许多错误，法官还说了很多有利于上诉人的话。可惜律师没有在上诉信中利用。
现将主要观点总结如下。
一丶单独两孩只是刚刚提出，操作层面还不明朗，也没有迹象表明该政策是否有追溯力，移民局也没有提出根据这一调整会怎样影响该案，所以不考虑这一问题。
二丶移民上诉委员会提出上诉人可以带着两个孩子回到中国后不报户口，不报户口政府就不知道，就不会给她强行结扎。法院反驳道：不报户口就不能得到法律的保护。大部分中国家庭不能负担私立学校和私人医生。移民局的律师也承认不报户口的严重后果。
三丶移民上诉委员会认为，即便报了户口，政府发现她违反了一胎化政策，她也不一定会被结扎。这是因为国情报告说福建强迫结扎的情况变得很少。法院反驳道：移民上诉委员会只是在“摘樱桃”，即只挑些有利于自己的观点的证据，而忽视了其它证据，如福建政府网站上强迫结扎的证据。
四丶移民上诉委员会认为可以付罚款，即付社会抚养费，来代替结扎。认为即便罚款人均年可支配收入的十倍，上诉人也没有表明这个数字到达迫害的程度，这是因为她在威斯康星买了一个饭店，拥有那个饭店，她赚了钱，以至于能够每月汇款几百元到中国。法院认为：没有理由认为她在中国能赚很多钱。如果赚不了那么多钱，她就不能支付社会抚养费。
五丶上诉人的律师没有利用法官的有利看法。如法官说，上诉人的证言是坦诚的，和她的书面申请材料是一致的，和她提供的证据也是一致的；她提供了可信的证据文件。移民局的律师也没有对她的可信性提出质疑。法官认为申请人是可信的。法官说，她是投了8万元买了一个餐厅，但没有其它资产，饭店的收入也不多。8万元大部分还是借的。法官还说中国是严格执行一胎化的。但可惜法官还说虽然文件以及她的亲友的证词证明她有可能被强迫结扎，但文件“并没有证明她会被迫结扎，他们只是说她一定被结扎。”上诉法院说，那么“一定”不就意味着“会”吗？法院说我们真是被搞糊涂了。法官对申请人的邻居和朋友提供的被迫结扎的证据怎么会那么处于偏见而不肖一顾呢？
六丶法院认为即便是上诉人给孩子报了户口，交了罚款，她还有被结扎的风险。这是因为福建和其它地方不一样，一胎化执行特别严。
七丶上诉人和他先生没有提供他们的财务状况是这一案子的致命弱点。
下面是案子的英文原稿。请网友们自己阅读吧。有一点是肯定的，要仅仅以在美生子怕回国被结扎来获得庇护是很难的--虽然上诉法院批评了移民上诉委员会和法官的很多错误见解。当然了如果这个案子中律师是负责任的，好好写一下上诉信（Brief）上诉法院是会批准该案的。
United States Court of Appeals,
Seventh Circuit.
XXX【我改的，不希望其名字在这儿出现】 CHEN, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
No. 13－1758.
Argued Oct. 8, 2013.
Decided Dec. 11, 2013.
Background: Alien, citizen of China, applied for asylum and withholding of removal. Immigration Judge (IJ) denied those applications. Alien appealed. Board of Immigration Appeals (BIA) affirmed. Alien petitioned for judicial review.
Holding: The Court of Appeals, Posner, Circuit Judge, held that alien was not entitled to asylum.
Petition denied.
West Headnotes
Aliens, Immigration, and Citizenship 24 541
24 Aliens, Immigration, and Citizenship
24VII Asylum, Refugees, and Withholding of Removal
24VII(D) Persecution
24k534 Grounds for Persecution; Protected Groups
24k541 k. Forced Abortion or Coerced Sterilization. Most Cited Cases
Alien, citizen of China, who had given birth in the United States to two children in violation of China's one-child policy, was not entitled to asylum, much less withholding of removal, despite “severe conse-quences” of nonregistration and evidence that viola-tors of one-child policy apparently would be subject to mandatory sterilization and massive fine called a “social compensation fee” without the ability to pay, since record did not contain evidence concerning financial situation of alien and her husband; attorney submitted woefully inadequate brief that contained only five original sentences in 49 pages and failed to quantify costs that failure to register her children would entail.
Petition for Review of an Order of the Board of Im-migration Appeals. No. A099－934－505.Troy Nader Moslemi, New York, NY, for Petitioner.
David V. Bernal, Lance L. Jolley, Oil, Anthony C. Payne, Jessica E. Sherman, Department of Justice, Washington, DC, for Respondent.
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge.
Once again we confront a challenge to the denial by the Board of Immigration Appeals of asylum to a Chinese woman whom the government wants to de-port to China's Fujian Province. She claims to face a significant risk of persecution there because, since coming to the United States in 2002, she has given birth to two children in violation of China's one-child policy (the official designation is “family planning policy”). For similar cases see, e.g., Li Ying Zheng v. Holder, 722 F.3d 986 (7th Cir.2013); Qiu Yun Chen v. Holder, 715 F.3d 207 (7th Cir.2013); Xiu Zhen Lin v. Mukasey, 532 F.3d 596 (7th Cir.2008).
Recently the Chinese government announced that it's relaxing the one-child policy—it will permit an urban husband and wife at least one of whom was an only child to have two children. See, e.g., Chris Buckley, “After Decades, China Will Ease One－Child Policy,” New York Times, Nov. 16, 2013, p. A1, www.nytimes.com/2013/11/16/world/asia/china-toloosen-its-one-child-policy.html (visited—as were all the websites cited in this opinion—on December 10, 2013). The petitioner's husband is not an only child; the petitioner testified without contradiction that her mother-in-law was punished for violating the one-child policy. There is no indication whether the wife is an only child. There is also no indication that the new policy will be applied retroactively. Moreover, Fujian Province, as we have pointed out in previous cases (most recently in Qiu Yun Chen v. Holder, supra, 715 F.3d at 209－10, 212), appears to march to its own beat, enforcing the one-child policy more strictly than existing Chinese law appears to permit. This makes it uncertain whether the petitioner will benefit from the new policy of the central government-a policy more-over merely announced and not yet implemented. (Chris Buckley's article, supra, quotes a Chinese de-mographer as saying that “Now [the government is] just talking about launching this, but the specific policies have to be developed at the operational level.”) Prudently, the Justice Department has filed no post-argument submission suggesting that the new policy should affect our consideration of the peti-tioner's appeal.
The Board's opinion, and to a lesser extent that of the immigration judge, are flawed. But the inadequacy of the brief that her lawyer has filed in this court pre-cludes our vacating the denial of asylum. The brief consists almost entirely of verbatim quotations either from the administrative record or from previous deci-sions of this court. The statement of facts consists almost entirely of quotations from the record, and the summary of argument consists entirely (not “almost entirely”) of an extended quotation from one of our previous decisions. The argument section of the brief consists of nothing but quotations from the record and from previous decisions, until the last few pages, which deal with the plaintiff's alternative (and clearly meritless) claim for relief—withholding of removal. Most of the material in that section as well is quoted rather than original material, but there is a bit of in-terstitial material that appears to be original—though none elsewhere in the brief, excluding the table of contents and other purely formal matter. All in all, in a 49－page brief, if one excludes purely formal matter, there are only five original sentences. A brief so composed is not helpful to either the reviewing court or the client.
An inadequate brief often signals a desperately weak case. This is not a desperately weak case, but we cannot write a party's brief, pronounce ourselves convinced by it, and so rule in the party's favor. That's not how an adversarial system of adjudication works. Unlike the inquisitorial systems of Continental Europe, Japan, and elsewhere, our system is heavily dependent on the parties' lawyers for evidence, research, and analysis. See Stephen McG. Bundy & Einer R. El-hauge, “Do Lawyers Improve the Adversary System? A General Theory of Litigation Advice and Its Regu-lation,” 79 Cal. L.Rev. 313, 315－19 (1991); cf. John Thibaut, Laurens Walker & E. Allan Lind, “Adversary Presentation and Bias in Legal Decisionmaking,” 86 Harv. L.Rev. 386, 386－90 (1972). American judges' dependence on lawyers is suggested by the fact that the ratio of lawyers to judges is 6.29 times higher in the United States than in the principal Continental European judiciaries. Calculated from European Commission for the Efficiency of Justice, Evaluation Report on European Judicial Systems, p. 144 tab. 7.1, p. 308 tab. 12.1 (2012), www.coe.int/t/dghl/cooperation/cepej/evaluation/ 2012/Rapport—en.pdf; American Bar Association, Lawyer Demographics (2011), www.americanbar.org/content/dam/ aba/migrated/marketresearch/PublicDocuments/lawyer—demographics—2011.authcheckdam.pdf; The American Bench: Judges of the Nation (Jenny Kimball et al. eds., 22d ed.2012). We're neither authorized nor equipped to write a lawyer's brief for him.
The inadequacy of the brief in this case is espe-cially unfortunate because the Board's opinion and that of the immigration judge contain errors that have led to reversals of the Board in previous cases, though there are also, as we'll see, critical gaps in the peti-tioner's evidence.
The Board placed great weight on the fact that the petitioner may be able to avoid being forcibly steril-ized upon returning to Fujian with her two children simply by not registering the children with the gov-ernment as permanent residents of China. The Board pointed out that parents of children born abroad can, when they return to China, choose to either register their children and thus “obtain free public education and other benefits [for the children] or opt not to reg-ister their children, send them to private school, and pay more for similar benefits [including health care].” An unregistered child is (probably-little about Chinese law is certain, because China does not have the “rule of law” as understood in our legal system) not counted against the number of children (one, with immaterial exceptions) allowed by Chinese law. But unregistered persons appear to be virtual outlaws, and most Chi-nese families can afford neither private school nor private doctors. Congressional－Executive Commis-sion on China, China's Household Registration Sys-tem: Sustained Re form Needed to Protect China's Rural Migrants 7－10 (2005); U.S. Department of State, Bureau of Democracy, Human Rights and La-bor, Country Reports on Human Rights Practices for 2012: China 61. The government's brief candidly acknowledges the “severe consequences” of nonreg-istration.
The Board went on to say that even if the peti-tioner were found to have violated the one-child policy (that is, if she rejected the option of not registering her children), State Department and other country reports indicate that forced sterilizations have become so rare in Fujian Province that she had not “demonstrated a reasonable possibility that she would be forcibly ster-ilized if she returns to China.” But the Board in saying such things was cherry-picking among country reports (and within a 2007 State Department report) and other public documents, as in Qiu Yun Chen v. Holder, supra, 715 F.3d at 209－10. And it was ignoring evi-dence from other sources, including a Fujian gov-ernment website that states that sterilization is man-datory for violators of the one-child policy. Id. at 212; “Replies to Robert Lin,” http://fjjsw.gov.cn:8080/html/5/383/9626—200856322.html (English translation at www.microsofttranslator.com/ bv.aspx?ref=IE8Activity & from= & to=en & a=http:®®fjj sw.gov.cn:8080®html®5®383®9626—200856322.html) (“.gov.cn” is the Chinese Government's official web portal). The Board also applied the standard for authentication of documentary evidence that we re-jected in Qiu Yun Chen v. Holder as too restrictive. 715 F.3d at 211.
The alternative to forced sterilization, the Board thought, might be a fine. But the Board ruled that even if the petitioner were fined 10 times her annual dis-posable income, she had not proved that imposition of such a fine would amount to persecution because “before she bought the restaurant she now owns, she made enough to send a few hundred dollars to China monthly.” That restaurant, which she owns jointly with her husband, is in Appleton, Wisconsin. There is no reason to think that she could earn a comparable income in China; and if not, she could not pay the fine. (But it remains to consider whether her husband might be able to pay it—read on.)
The petitioner's lawyer could have found some live ammunition in the immigration judge's opinion, no part of which the Board questioned. It states that the petitioner's “testimony at her hearings was candid, internally consistent, and consistent with her asylum application and supporting documents. Moreover, many of the facts to which [she] testified and about which she had personal knowledge are corroborated by reliable supporting documents in the record. At her individual hearings, the Government did not attempt to impeach her credibility. The Court therefore finds the [petitioner's] testimony credible.”
The petitioner testified that before coming to the United States in 2002 she had worked in a factory in which she earned 300 to 400 yuan a month. In 2002 this was a little more than $48 ($580 a year) at the official exchange rate of 8.277 yuan to a dollar. See Board of Governors of Federal Reserve System, “Historical Rates for the Chinese Yuan Renminbi,” www.federalreserve.gov/releases/h10/hist/ dat00—ch.htm. The immigration judge also accepted the petitioner's estimate of 30,000 yuan as the fine she'd have to pay for violating the one-child policy. At the official exchange rate of 6.663 yuan per dollar in December 2012 (when the immigration judge rejected the asylum application), that is $4,502.
The immigration judge noted that the petitioner and her husband had invested $80,000 to buy their restaurant in Wisconsin, but that “otherwise, she has few assets, and her restaurant has not yet been very profitable.” So far as appears, the bulk of the $80,000 was borrowed. She acknowledged earning more than $1,000 a month in 2009 (the year before she testified before the immigration judge). That isn't a great deal, but there is no evidence of what her husband's earn-ings are. That is one yawning gap in the record; an-other is the absence of any evidence concerning the husband's earning potential in China. These are seri-ous gaps, attributable to the petitioner.
Refreshingly, after listing the “voluminous country conditions evidence regarding family plan-ning policies in China” and noting their lack of con-sistency, the immigration judge said of these materials that “taken together ... they depict China as a country with serious human rights problems and a strict family planning policy that severely restricts the number of children couples are allowed to have.” He went on to say that China's human rights record is “poor” in a number of respects, including a “coercive birth limi-tation policy”; “local officials are under intense pressure to achieve family planning goals; physical coercion is sometimes reported. These findings are echoed throughout the record in submissions by both the Government and the [petitioner].... Enforcement and application of the family planning policy are un-even and vary widely from region to region.... [M]edia sources, and hundreds of asylum claimants have de-scribed forcible and coercive sterilizations and abor-tions. In fact, Chinese government officials concede that overzealous officials may have perpetrated such acts.”
Yet the immigration judge's opinion states that although documents “from committees in [the peti-tioner's] and her husband's village and town also suggest that she could be sterilized if she returned to China,” the documents “do not indicate that [she] would be forcibly sterilized; they only state that she ‘must’ be sterilized.” But doesn't “must” imply “would”? We're also perplexed by the immigration judge's having given little (actually it seems zero) weight, on the ground of bias, to documents in which neighbors and friends of the petitioner reported forced sterilizations, yet giving no greater weight to similar documents submitted by strangers in other cases, on the ground that those were—other cases. We criticized this heads I win, tails you lose approach to evidence in our opinion in the earlier Chen case. See 715 F.3d at 212. And even if the immigration judge could ignore the documents, he could not, consistent with his de-termination that the petitioner's testimony was credi-ble, ignore as he did her testimony that a sister-in-law, cousin-inlaw, several aunts, and her mother-in-law all were sterilized because they'd violated the one-child policy.
The immigration judge concluded (as did the Board when it reviewed his decision) that the peti-tioner could avoid persecution simply by not regis-tering her children. Yet that could result in great hardship unless she is wealthy. The immigration judge said she'd “presented no evidence to demonstrate that the higher expenses incurred by forgoing the benefits obtained by registering in the household registration system would cause such ‘severe economic damage’ that it would amount to persecution.” But depending on how great the expense of educating and providing health care for two unregistered children is, registra-tion may be no less costly than the $4,502 fine that she may not be able to pay. It seems questionable to re-quire her to calculate these expense items rather than for the judge to derive them from credible studies. If she can't get better work than as a factory hand, it's hard to see how she can afford to provide private education and private health care for her children.
If she neither forgoes registering her children nor pays a fine (what is called a “social compensation fee”), she risks forcible sterilization. Yet even if she either forgoes registering her children or pays the fine, some risk of forcible sterilization would remain, since Fujian Province appears to have an independent fam-ily planning policy stricter than the national policy. See Qiu Yun Chen v. Holder, supra, 715 F.3d at 209; Ji Cheng Ni v. Holder, 715 F.3d 620, 626 (7th Cir.2013); U.S. Department of State, Bureau of De-mocracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2012: China 58; Congressional－Executive Commission on China, Annual Report 90－91 (2012) and 2013 Annual Report 92 (quoted below). But presumably the Board's con-clusion that if the petitioner either doesn't register her children or pays the social compensation fee the risk of forcible sterilization by the Fujian authorities would not rise to a level that would entitle her to asylum would withstand judicial review. See Huang v. Mu-kasey, 534 F.3d 618, 620－21 (7th Cir.2008). The crucial question therefore is whether she can afford either the fine, or the costs that failure to register her children would entail. Those costs seem very high, as we've said, but she made no attempt to quantify them. As to whether she can afford to pay the fine instead, the immigration judge pointed out that she had “pro-vided very little evidence regarding her personal fi-nancial situation.” He also noted that “she paid a large amount of money to smugglers to get to the United States” and that “the most exorbitant fine described in the record [$6,800] ... is less than 10% of the [peti-tioner's] investment in her restaurant”—a meaningless observation, if indeed the money to buy the restaurant was borrowed and she will return to a factory job if she is deported to China. But she presented no evidence of how much she and her husband (or other members of her family) paid the smugglers. Maybe there is family wealth, although her having been a factory worker in China suggests otherwise.
Also missing from the record is evidence of the husband's earning potential in China. But the record does contain an affidavit signed by him (though ig-nored by the parties and the Board) in which he states that “we will ... be fined for a huge amount of money because we have violated the [Fujian] Family Plan-ning Policy.... Although we might be able to pay the fines, but we are not willing to because we think we have the right to give births” (emphasis added). This could be regarded as a fatal concession.
We continue to be distressed, however, by the Board's seeming failure to consider the annual reports of the Congressional－Executive Commission on China, a responsible federal agency, where we read for example that “at least 18 of China's 31 provin-cial-level jurisdictions permit officials to take steps to ensure that birth quotas are not exceeded; in practice, these steps can include forced abortion and forced sterilization.” Congressional－Executive Commission on China, 2009 Annual Report 153, 371 n. 24, citing the State Department's 2008 Human Rights Report on China. And evidently the situation has worsened (though the new policy announcement, discussed at the beginning of this opinion, may herald ameliora-tion): “provincial-level population planning regula-tions in at least 22 of China's 31 provincial-level ju-risdictions explicitly endorse the practice [forced abortion], often referred to as a ‘remedial measure’ (bujiu cuoshi ), as an official policy instrument.” Congressional－Executive Commission on China, 2013 Annual Report 100, 226 n.36. And in the Com-missioner's 2009 report we read that a township in Fujian Province advised its officials “to ‘strictly act on the demand to carry out [sterilization] within one month’ for women who give birth to a second or third child.” Congressional－Executive Commission on China, 2009 Annual Report 155. Fujian is reported to have adopted an elaborate system of rewards and penalties for officials who do and do not fulfill forced-abortion and forced-sterilization targets. Id. at 156. Finally,
between October 2012 and July 2013, the Com-mission noted reports from at least eight provinces (Hubei, Guangdong, Anhui, Shandong, Henan, Guizhou, Hunan, and Fujian) using phrases such as “spare no efforts” (quanli yifu or fenli ), “use all means necessary” (qian fang bai ji ), “implement ‘man-on-man’ military tactics” (shixing “rendin-gren” zhanshu ), “fight the family planning battle” (dahao jisheng gongjianzhan ), and “assault and storm the fortifications” (tuji gongjian ) to urge of-ficials to implement family planning measures. The implementation measures pro moted in these reports were harsh and invasive, including “remedial measures,” the “two inspections” (intrauterine de-vice (IUD) inspections and pregnancy inspections), the “four procedures” (IUD implants, first-trimester abortions, mid- to late-term abortions, and sterili-zation), and the collection of “social maintenance fees.”
Congressional－Executive Commission on China, 2013 Annual Report 100 (footnotes omitted).
Still, both the immigration judge's opinion and the Board's opinion are improvements on what we faced in the Qiu Yun Chen case that we've been citing. And the government's brief is refreshingly candid in ac-knowledging deficiencies in the agency's analysis of China's one-child policy. But the petitioner's failure to present evidence concerning her and her husband's financial situation is a fatal weakness in her case.
The petition to review the Board's denial of asy-lum is
DENIED.
C.A.7,2013.
Xue Juan Chen v. Holder
--- F.3d ----, 2013 WL 6482542 (C.A.7)
END OF DOCUMENT