Xue Juan Chen v. ERIC H. HOLDER , J R ., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1758
XUE J UAN C HEN,
Petitioner,
v.
ERIC H. HOLDER , J R ., Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A099‐934‐505.
____________________
A RGUED OCTOBER 8, 2013 — D ECIDED D ECEMBER 11, 2013
____________________
Before BAUER , P OSNER , and EASTERBROOK , Circuit Judges.
P OSNER , 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 viola‐
tion of China’s one‐child policy (the official designation is

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2 No. 13‐1758
“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 re‐
laxing 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 testi‐
fied without contradiction that her mother‐in‐law was pun‐
ished for violating the one‐child policy. There is no indica‐
tion whether the wife is an only child. There is also no indi‐
cation that the new policy will be applied retroactively.
Moreover, Fujian Province, as we have pointed out in previ‐
ous cases (most recently in Qiu Yun Chen v. Holder, supra, 715
F.3d at 209–10, 212), appears to march to its own beat, en‐
forcing the one‐child policy more strictly than existing Chi‐
nese 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 submis‐
sion suggesting that the new policy should affect our con‐
sideration of the petitioner’s appeal.

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No. 13‐1758 3
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 va‐
cating the denial of asylum. The brief consists almost en‐
tirely of verbatim quotations either from the administrative
record or from previous decisions of this court. The state‐
ment 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 con‐
sists 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 re‐
lief—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 origi‐
nal—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 help‐
ful 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 adversar‐
ial system of adjudication works. Unlike the inquisitorial
systems of Continental Europe, Japan, and elsewhere, our
system is heavily dependent on the parties’ lawyers for evi‐
dence, research, and analysis. See Stephen McG. Bundy &
Einer R. Elhauge, “Do Lawyers Improve the Adversary Sys‐
tem? A General Theory of Litigation Advice and Its Regula‐
tion,” 79 Cal. L. Rev. 313, 315–19 (1991); cf. John Thibaut, Lau‐

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4 No. 13‐1758
rens 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 sug‐
gested by the fact that the ratio of lawyers to judges is 6.29
times higher in the United States than in the principal Conti‐
nental 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 un‐
fortunate because the Board’s opinion and that of the immi‐
gration 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 peti‐
tioner may be able to avoid being forcibly sterilized upon
returning to Fujian with her two children simply by not reg‐
istering the children with the government as permanent res‐
idents of China. The Board pointed out that parents of chil‐
dren 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 unreg‐

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No. 13‐1758 5
istered 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 chil‐
dren (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 Needed to Protect China’s Rural Migrants 7–10 (2005); U.S.
Department of State, Bureau of Democracy, Human Rights
and Labor, Country Reports on Human Rights Practices for
2012: China 61. The government’s brief candidly acknowl‐
edges the “severe consequences” of nonregistration.
The Board went on to say that even if the petitioner were
found to have violated the one‐child policy (that is, if she re‐
jected the option of not registering her children), State De‐
partment and other country reports indicate that forced ster‐
ilizations have become so rare in Fujian Province that she
had not “demonstrated a reasonable possibility that she
would be forcibly sterilized 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 evidence from
other sources, including a Fujian government website that
states that sterilization is mandatory 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%3a%2f%2ffjj
sw.gov.cn%3a8080%2fhtml%2f5%2f383%2f9626_200856322.h
tml) (“.gov.cn” is the Chinese Government’s official web

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6 No. 13‐1758
portal). The Board also applied the standard for authentica‐
tion of documentary evidence that we rejected 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 peti‐
tioner were fined 10 times her annual disposable 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 am‐
munition 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] testi‐
fied and about which she had personal knowledge are cor‐
roborated 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 [pe‐
titioner’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 Re‐

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No. 13‐1758 7
serve System, “Historical Rates for the Chinese Yuan Ren‐
minbi,” www.federalreserve.gov/releases/h10/hist/
dat00_ch.htm. The immigration judge also accepted the peti‐
tioner’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 ap‐
pears, the bulk of the $80,000 was borrowed. She acknowl‐
edged 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
earnings are. That is one yawning gap in the record; another
is the absence of any evidence concerning the husband’s
earning potential in China. These are serious gaps, attribut‐
able to the petitioner.
Refreshingly, after listing the “voluminous country con‐
ditions evidence regarding family planning policies in Chi‐
na” and noting their lack of consistency, the immigration
judge said of these materials that “taken together … they
depict China as a country with serious human rights prob‐
lems and a strict family planning policy that severely re‐
stricts 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
limitation policy”; “local officials are under intense pressure
to achieve family planning goals; physical coercion is some‐

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8 No. 13‐1758
times reported. These findings are echoed throughout the
record in submissions by both the Government and the [peti‐
tioner]. … Enforcement and application of the family plan‐
ning policy are uneven and vary widely from region to re‐
gion. … [M]edia sources, and hundreds of asylum claimants
have described 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 petitioner’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 ap‐
proach 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 credible, ig‐
nore as he did her testimony that a sister‐in‐law, cousin‐in‐
law, 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 petitioner could
avoid persecution simply by not registering her children. Yet

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No. 13‐1758 9
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 regis‐
tration 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, registration may be no
less costly than the $4,502 fine that she may not be able to
pay. It seems questionable to require 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 register‐
ing her children or pays the fine, some risk of forcible sterili‐
zation would remain, since Fujian Province appears to have
an independent family planning policy stricter than the na‐
tional 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 Democracy, 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 conclusion 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. Mukasey, 534 F.3d 618, 620–21 (7th Cir. 2008). The

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10 No. 13‐1758
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 “provided very little evidence re‐
garding her personal financial 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 de‐
scribed in the record [$6,800] … is less than 10% of the [peti‐
tioner’s] investment in her restaurant”—a meaningless ob‐
servation, if indeed the money to buy the restaurant was
borrowed and she will return to a factory job if she is de‐
ported 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 other‐
wise.
Also missing from the record is evidence of the hus‐
band’s earning potential in China. But the record does con‐
tain an affidavit signed by him (though ignored by the par‐
ties 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 Planning 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 Con‐
gressional‐Executive Commission on China, a responsible
federal agency, where we read for example that “at least 18

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No. 13‐1758 11
of China’s 31 provincial‐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 De‐
partment’s 2008 Human Rights Report on China. And evi‐
dently the situation has worsened (though the new policy
announcement, discussed at the beginning of this opinion,
may herald amelioration): “provincial‐level population
planning regulations in at least 22 of China’s 31 provincial‐
level jurisdictions explicitly endorse the practice [forced
abortion], often referred to as a ‘remedial measure’ (bujiu cu‐
oshi), as an official policy instrument.” Congressional‐
Executive Commission on China, 2013 Annual Report 100,
226 n. 36. And in the Commissioner’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 Commission
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 “rend‐
ingren” zhanshu), “fight the family planning battle” (dahao
jisheng gongjianzhan), and “assault and storm the fortifica‐
tions” (tuji gongjian) to urge officials to implement family

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12 No. 13‐1758
planning measures. The implementation measures pro‐
moted in these reports were harsh and invasive, including
“remedial measures,” the “two inspections” (intrauterine
device (IUD) inspections and pregnancy inspections), the
“four procedures” (IUD implants, first‐trimester abortions,
mid‐ to late‐term abortions, and sterilization), and the col‐
lection 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 govern‐
ment’s brief is refreshingly candid in acknowledging defi‐
ciencies 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 asylum is
D ENIED.

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