JUN LIN and YU LIN v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3090
JUN LIN and YU LIN,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A073-569-293 and No. A098-569-559
ARGUED MAY 27, 2010—DECIDED SEPTEMBER 1, 2010
Before BAUER, WOOD and TINDER, Circuit Judges.
BAUER, Circuit Judge. 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

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2 No. 09-3090
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.
I. BACKGROUND
In 1992, while living in Fujian province, China, peti-
tioner 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 documenta-
tion. 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 ap-
propriate 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 applica-
tions 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

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No. 09-3090 3
“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 abor-
tions 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 insuf-
ficient 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.

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4 No. 09-3090
The Board adopted and supplemented the IJ’s deci-
sion. 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 steriliza-
tion, that enforcement is described as “lax and un-
even,” 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.
II. DISCUSSION
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 pur-
poses, 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 deci-
sion 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

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No. 09-3090 5
the record considered as a whole.” Toptchev v I.N.S., 295
F.3d 714, 720 (7th Cir. 2002) (quoting I.N.S. v. Elias-Zacarias,
502 U.S. 478, 481 (1992)).
The Board held that the Lins had not established that
they are “refugees” within the meaning of 18 U.S.C.
§ 1101(a)(42), which would make them eligible for
asylum. See Boci v. Gonzales, 473 F.3d 762, 767 (7th Cir.
2007); Zhu v. Gonzales, 465 F.3d 316, 318 (7th Cir. 2006).
To prevail, they had to show either that they had been
persecuted in China in the past, or that they have a well-
founded fear that if they return to China they will be
persecuted on account of their political opinion—their
opposition to, and failure to comply with family planning
policies. Zhu, 465 F.3d at 318.
The IJ determined that the fact that Mr. Lin’s girl-
friend had an unwanted abortion was inadequate to
establish past persecution. The Lins do not challenge
this finding; rightfully so as we “have declined to
expand the definition of “refugee” to include the boy-
friends of women who are forced to abort a pregnancy.” Id.
at 321 (citing Chen v. Gonzales, 457 F.3d 670 (7th Cir. 2006)).
The Lins do take issue with the finding that they do not
have a well-founded fear of future persecution if
they return to China. Proving this requires the Lins to
establish that they genuinely fear persecution and
that the fear is objectively reasonable. See Toptchev, 295
F.3d at 720. While the Board found the Lins credible
about their own fears, it was not convinced that their
fears were objectively reasonable.

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6 No. 09-3090
We find that the IJ’s conclusion, as supplemented by
the Board, to be supported by substantial evidence.
Absent a showing of past persecution, which raises a
presumption that the applicant will be persecuted in
the future, the Lins had to present “specific, detailed
facts showing a good reason to fear that [they] will be
singled out for persecution” once returned to China. Zhu,
465 F.3d at 321 (quoting Borca v. I.N.S., 77 F.3d 210, 214
(7th Cir. 1996)). Mr. Lin’s testimony that he fears steriliza-
tion was based entirely on his girlfriend’s unwanted
1992 abortion which, as we said, is insufficient to trigger
a presumption of future persecution. The only other
fact the Lins presented was that Mr. Lin’s cousin under-
went an unwanted sterilization procedure in 1996 after
the birth of her second child. But, unlike the Lins, the
cousin’s children were born in China. Her letter was
of little value in establishing what would happen to
parents with children born outside China. Mrs. Lin testi-
fied that her fear of persecution was entirely premised
upon the letter and conversations with her mother-in-
law. While the Lins also presented several documents
and an affidavit that suggested the possibility of
coercive sterilization, we cannot disagree with the
Board’s determination that the items were unreliable
because they were not based on personal knowl-
edge. See Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007);
Matter of C-C-, 23 I. & N. Dec. 899 (BIA 2006). See also
Wang, 505 F.3d at 622-23. Without specific facts to
support their claim of a well-founded fear of persecu-
tion, the Lins failed to meet their burden and the IJ’s
denial of their asylum application was reasonable.

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No. 09-3090 7
The Lins focus much of their argument in attacking
the Board’s decision to take administrative notice of the
2007 State Department report, see 8 C.F.R. § 1003.1(d)(3)(iv),
which concludes that overall enforcement of family
planning policies in Fujian province is uneven, and that
the Lins’ two U.S.-born children will not be counted
against them. Galina v. Mukasey, 213 F.3d 955 (7th Cir.
2000), they argue, prohibits the Board from taking ad-
ministrative notice of statements in a country profile
unless the statements “cannot seriously be contested.” Id.
at 958. Indeed, we have warned that because the
State Department’s “natural inclination is to look on the
bright side” with regard to friendly nations, immigration
authorities should treat its reports with a “healthy skepti-
cism, rather than as a holy writ.” Galina, 213 F.3d at 958-
59. But the Board did not simply rely on the report for
general country conditions. Instead, it maintained the
“individualized nature of the inquiry,” Sankoh v. Mukasey,
539 F.3d 456, 466 (7th Cir. 2008), by focusing only on the
portions of the report relevant to the Lins’ situation
such as Chinese birth-planning policy for children born
abroad and enforcement practices in Fujian province.
The Lins further argue that State Department reports
are insufficient to rebut a claim of a well-founded fear of
persecution. See id.; see also Ayele v. Holder, 564 F.3d 862,
871 (7th Cir. 2009); Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th
Cir. 2003). Indeed, we have found that the shortcomings
of State Department reports are “especially germane” in
situations in which the burden of persuasion has shifted
to the government. See Galina, 213 F.3d at 959. But the
burden of persuasion in this case was not on the gov-

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8 No. 09-3090
ernment. An alien must first establish that he or
she has been the victim of past persecution before a pre-
sumption arises that the alien has a well-founded fear of
future persecution. Zhu, 465 F.3d at 321. The govern-
ment may rebut this presumption by showing that the
fear is not objectively reasonable. But the burden never
shifted in this case because the Lins established neither
past persecution, nor that their subjective fears of steriliza-
tion were objectively reasonable. As discussed above,
though the IJ and the Board found the Lins credible
with respect to their reasons for leaving China, they
presented no “specific, detailed facts,” see id., that they
are likely to be sterilized upon their return. The Lins
have not met their burden of showing that their fear
of future persecution in China is objectively reasonable.
III. CONCLUSION
For the foregoing reasons, the petition to review is
denied.
9-1-10

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