Petition for Review of an Order of the Board of Immigration Appeals. Nos. A073-569-293 & A098-569-559.
The opinion of the court was delivered by: Bauer, Circuit Judge
Before BAUER, WOOD and TINDER, Circuit Judges.
Petitioners Jun Lin and Yu Lin appeal the decision of the Board of Immigration Appeals ("Board"), which affirmed the decision of the immigration judge ("IJ"), that petitioners were not entitled to asylum or withholding of removal and are eligible to be deported. The Lins argue that the IJ and the Board erred by rejecting their claim that, because they have two children born in the United States, they have a reasonable fear of persecution if they are returned to Fujian province in the People's Republic of China.
In 1992, while living in Fujian province, China, petitioner Jun Lin conceived a child with his girlfriend (not his current wife), though they were both too young to obtain birth or marriage permits under Chinese law. Because it violated family planning laws, officials forced the girlfriend to abort the pregnancy. Lin then came to the United States in 1994, without proper documentation. He filed for asylum soon after arriving, but after failing to appear at an immigration hearing in 1996, he was ordered deported. In 2006, the immigration court granted Mr. Lin's motion to reopen his asylum proceeding.
Yu Lin entered the United States in 1998 without appropriate documents. Though she and Jun Lin were born in the same town in China, they did not meet until she arrived in the United States. They married in 1999 and moved to Sturgeon Bay, Wisconsin. The couple have two children born in the United States, one in 2002 and the other in 2005. Mrs. Lin filed her application for asylum in August 2006. Both the Lins' asylum applications asserted a fear of being sterilized for having two children born outside China, in violation of the nation's family planning policies. The immigration court consoli-dated their cases.
At the couple's removal proceeding, both Mr. and Mrs. Lin stated that officials in Fujian province will "definitely"sterilize them if they are deported. The Lins also submitted a letter from Shu Yun Xu, Mr. Lin's cousin, stating that she had been forcibly sterilized after having a second child in 1996.
The United States submitted a copy of a 2007 State Department profile of conditions in China, which said that enforcement of family planning laws was at most "uneven." While the profile acknowledged reports by asylum seekers from Fujian province of coercive family planning practices, officials "found no evidence of forced abortion," and physicians in contact with the U.S. Consulate General "have not seen signs of forced abortions or sterilizations."
The IJ denied the Lins' asylum applications, finding that they were unable to meet their burden of proving that having two U.S.-born children created a well-founded fear of persecution by family planning officials upon their return to China. That his former girlfriend had been compelled to have an abortion was insufficient to establish that Mr. Lin had experienced past persecution in China. And while the IJ believed that the Lins do fear persecution, he found that they failed to present evidence tending to show that this fear was objectively reasonable. The IJ found the letter from Mr. Lin's cousin inadequate in this regard because she was not similarly situated to the Lins; the cousin did not indicate where the procedure took place and, unlike the Lins, neither of her two children were born outside China. Moreover, the 2007 State Department profile indicated that enforcement of family planning laws has diminished since 1996.
The Board adopted and supplemented the IJ's decision. In addition to agreeing that the Lins had not carried their burden of establishing a well-founded fear of persecution, the Board cited the State Department profile as indicating that "children born abroad were not counted" for birth planning purposes, that officials were unaware of an official policy of sterilization, that enforcement is described as "lax and uneven," and that "evidence suggests that physical coercion is . . . uncommon." The Board held that the Lins also failed to satisfy the higher burden of proof required to establish their eligibility for withholding of removal.
The Lins timely appeal the decision of the Board and the IJ. They argue that their testimony, the letter from Mr. Lin's cousin, and affidavits from human rights organizations were sufficient to establish that their fear of sterilization was objectively reasonable. They also claim that, in considering whether their U.S.-born children would be counted for family planning purposes, the Board erred by taking administrative notice of the 2007 State Department report.
Since the Board affirmed and supplemented the IJ's decision, we review "both the immigration judge's decision and any additional reasoning" of the Board. Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2009). We review deferentially the decision to deny the Lins' asylum application and ask only whether it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." Toptchev ...