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Chen v. Holder

United States Court of Appeals, Seventh Circuit

December 11, 2013

XUE JUAN CHEN, Petitioner,
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Argued Oct. 8, 2013.

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 deport 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);

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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- to- loosen- 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 moreover merely announced and not yet implemented. (Chris Buckley's article, supra, quotes a Chinese demographer 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 petitioner'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 precludes our vacating the denial of asylum. The brief consists almost entirely of verbatim quotations either from the administrative record or from previous decisions 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 interstitial 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. Elhauge, " Do Lawyers Improve the Adversary System? A General Theory of Litigation Advice and Its Regulation," 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

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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 especially 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 petitioner's evidence.

The Board placed great weight on the fact that the petitioner may be able to avoid being forcibly sterilized upon returning to Fujian with her two children simply by not registering the children with the government 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 register 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 Chinese families can afford neither private school nor private doctors. Congressional-Executive Commission on China, China's Household Registration System: Sustained Re form ...

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