[00:00:01] Speaker 00:
Yes, good morning, yes.

[00:00:02] Speaker 00:
I'm going to begin with the procedural history of this case, which may be a little bit lengthy, but I'll keep it simple.

[00:00:08] Speaker 04:
Well, we're familiar with the procedural history, so why don't you just tell us why your client should prevail?

[00:00:13] Speaker 00:
Okay, yeah, sure, thank you.

[00:00:15] Speaker 00:
Petitioner is a native and citizen of China who is 39 years old.

[00:00:19] Speaker 00:
In her prior assignment application, she claims she was persecuted because her classmate left a bag of Christian materials in her home.

[00:00:28] Speaker 00:
And about one week later, that was back in 2007, and one week later, you know, Chinese police came to her home, arrested her and kept her in police detention.

[00:00:40] Speaker 00:
She was not released.

[00:00:41] Speaker 03:
Is that issue in this case?

[00:00:43] Speaker 03:
I thought the question of her sort of imputed religion was out of the case at this point.

[00:00:49] Speaker 00:
I think the issue of these cases, whether she has established a burden of proof to establish a well-founded fear, a future fear based on her Christianity claim, based on her recent conversion to Christianity.

[00:01:09] Speaker 00:
I think that she had met the burden of proof.

[00:01:13] Speaker 00:
I think what happened back in the individual hearing in San Francisco,

[00:01:19] Speaker 00:
The interpreter was not able to translate the word, the church's name, from Chinese to the English word.

[00:01:28] Speaker 00:
Let me bring the court's attention to certified administrative record page 145.

[00:01:35] Speaker 00:
17 through 920, and she stated the name of the church she attended, X-I-L-O-U-Y-A, and she was able to say the name of the church.

[00:01:50] Speaker 00:
However, it was an interpreter who did not understand the word of

[00:01:54] Speaker 00:
that particular phrase and which ultimately lead to the court to conclude that she provided nonsensical word to the church's name.

[00:02:06] Speaker 02:
Are you asking, are you mentioning this because of the adverse credibility finding?

[00:02:10] Speaker 02:
But the BIA didn't rely on the adverse credibility finding, correct?

[00:02:14] Speaker 00:
I think that one more thing, you know, not only that, you know, I think that has weakened her case, you know, because the lack of the translation had weakened her case, leading the judge to conclude that she has not met her burden of proof, you know, assuming the interpreter did everything correctly.

[00:02:31] Speaker 02:
Well, I think the reason didn't think that she had met the burden of proof, at least as far as before us, is that

[00:02:39] Speaker 02:
She's basically saying, I think I will be persecuted if I go back and join one of these house churches.

[00:02:43] Speaker 02:
But what evidence did she provide as to whether there's house churches in this particular province where she's from and how those house churches are treated?

[00:02:58] Speaker 00:
But she did not have any documents to prove that, of course.

[00:03:02] Speaker 00:
And I think what the courts failed to recognize that coupled with her prior arrest and detention and also her payment of fine.

[00:03:12] Speaker 03:
Her prior arrest and detention had nothing to do with this because she wasn't a Christian at the time and she wasn't claiming to be, right?

[00:03:20] Speaker 00:
For that, I have to respectfully disagree with that.

[00:03:26] Speaker 00:
I think it has something to do with her future persecution and her current Christianity environment coupled with her prior arrest, coupled with the police officers wanting to arrest her.

[00:03:38] Speaker 00:
I think all together she will be able to establish that she will be arrested.

[00:03:46] Speaker 03:
Are you going to discuss at all her third claim or her second claim, which is her concern about returning with her two children and whether she wants to have another child and so on?

[00:04:00] Speaker 00:
With regard to one child policy in China, I'm going to rest everything on the record.

[00:04:07] Speaker 00:
I probably is not going to make any argument to her future forcible sterilization case.

[00:04:13] Speaker 02:
One of the things she had said was that there's some

[00:04:17] Speaker 02:
There's varying testimony as to whether or not she thought she might want to have another child.

[00:04:25] Speaker 02:
It's been almost 10 years.

[00:04:27] Speaker 02:
Do you know if she's had a third child?

[00:04:31] Speaker 00:
No, I don't know anything about that.

[00:04:33] Speaker 00:
For that one, I did not inquire whether she had a third child or not, Judge.

[00:04:40] Speaker 04:
What is her view on whether she wanted to have another child?

[00:04:43] Speaker 04:
Because the government can address this when it speaks.

[00:04:47] Speaker 04:
But the way the BIA framed it is that she does not want to have more children, but it seemed that she did testify at one point that she did.

[00:04:54] Speaker 00:
You know, even if she doesn't have the third child, I think she will be subject to a sterilization case.

[00:05:02] Speaker 00:
You know, I mean, Chinese policy only allowed one child per family.

[00:05:07] Speaker 03:
Well, first of all, I thought just from general information and also from the record that, in fact, that's been changed.

[00:05:15] Speaker 03:
There's a two-child policy, not a one-child policy.

[00:05:19] Speaker 00:
I think the two-child policy has been relaxed based on the records submitted.

[00:05:23] Speaker 00:
I think the latest one was 2016, and 2016 country report probably permits a family have two children, but it did not say after a family having two children, what will happen to the family.

[00:05:37] Speaker 00:
Whether China will still enforce forcible sterilization against the husband and wife, that's not clear in the record.

[00:05:47] Speaker 04:
So she has two children now, as far as you know?

[00:05:50] Speaker 04:
She has two children, as far as I know, yes.

[00:05:52] Speaker 04:
What evidence in the record suggests that when she goes back, if she goes back to China, that she'll be persecuted because she has two children?

[00:06:02] Speaker 00:
I think the Chinese law say that after two children, there'll be no more children after that, based on the 2016 country report.

[00:06:10] Speaker 00:
The prior law was one child per family, and in 2016, the law had relaxed.

[00:06:18] Speaker 00:
I think that was somewhere in the record, but the law did not really say after two children, what will happen.

[00:06:23] Speaker 00:
She's afraid of being sterilized after having two.

[00:06:27] Speaker 00:
I think that's a legitimate concern,

[00:06:33] Speaker 00:
And also, I think that, you know, she also submitted other documents, her Christianity practice and church letter.

[00:06:43] Speaker 00:
And also, again, you know, I'm going to emphasize her prior... I thought that the main basis for...

[00:06:50] Speaker 03:
I mean, there was some skepticism about her actual Christianity, but that wasn't really the basis.

[00:06:58] Speaker 03:
The basis was that she hadn't proven that there was sufficient likelihood that even if she went back and went to a home church, although she didn't say there was a home church in her town, that she might

[00:07:15] Speaker 03:
be harassed or something, but there was not enough evidence that she herself would be targeted, or even that generally people who go to home churches or not the leaders are bothered in China.

[00:07:29] Speaker 03:
Wasn't that the ultimate basis for the BIA's conclusion?

[00:07:33] Speaker 00:
Yeah, Joanna is correct.

[00:07:35] Speaker 00:
However, she has been warned by police officers, she has been arrested.

[00:07:40] Speaker 00:
So this case is different than any other ordinary cases where a churchgoer simply went to church and probably nothing happened to her.

[00:07:49] Speaker 00:
But this case is different.

[00:07:50] Speaker 00:
because she has imputed political opinion, imputed Christian claim, and also she's practicing Christian now.

[00:07:59] Speaker 00:
So I guess her case, you know, I think the case should be treated differently, you know, based on what happened to her and also what she's doing now.

[00:08:08] Speaker 04:
You want to save your last two minutes for rebuttal?

[00:08:10] Speaker 04:
Yes, please.

[00:08:11] Speaker 04:
Thank you.

[00:08:12] Speaker 04:
Okay.

[00:08:12] Speaker 04:
Thank you, sir.

[00:08:13] Speaker 04:
Mr. Haves.

[00:08:15] Speaker 01:
Good morning, Your Honors.

[00:08:17] Speaker 01:
May it please the court, Timothy Hays, on behalf of the Attorney General.

[00:08:21] Speaker 01:
The court should deny this petition.

[00:08:23] Speaker 01:
Petitioner has not established at the record compulsive conclusion that she faces a reasonable possibility of persecution based on an imputed religion, her Christianity, or China's family planning policy.

[00:08:36] Speaker 01:
As for the imputed religion claim, it was waived in their brief, but the basis of it is sound in any event.

[00:08:43] Speaker 01:
She has not indicated that the police have shown any interest in her or her family since roughly 2008.

[00:08:50] Speaker 01:
And that's 153 and 154 of the record.

[00:08:54] Speaker 01:
As for a Christianity claim, she did not establish an individualized risk of persecution based on her attempt to continue practicing Christianity in China.

[00:09:05] Speaker 01:
Her only particularized evidence presented was her husband's experiences in China when he was in China, because he was a Christian at the time.

[00:09:15] Speaker 01:
But her husband did not testify or write a declaration

[00:09:18] Speaker 01:
and his own claim in immigration court was found to lack credibility.

[00:09:25] Speaker 01:
As far as her own testimony, she provided no detailed evidence of where she would practice, how she would practice, or who she would practice with.

[00:09:34] Speaker 04:
What about the comment made that maybe there were some misunderstandings during the translation?

[00:09:41] Speaker 01:
I think that goes to the credibility, Your Honor.

[00:09:43] Speaker 03:
There was some concern, and in fact, the immigration- But the BIA, I mean, this was an oddity, because the BIA said that they were not relying, they were assuming her truthful, but then with regard to the Christianity issue, they, without saying so, seemed to be questioning her credibility.

[00:10:02] Speaker 01:
I think they were questioning their persuasiveness of our testimony.

[00:10:06] Speaker 01:
I recognize the paragraph of the BIA decision you're discussing because they assume credibility and then there's a paragraph below that where they sort of highlight all the issues immigration judge found with credibility.

[00:10:16] Speaker 01:
But the board went on to discuss

[00:10:18] Speaker 01:
what I consider the crux of their holding, and that is that she didn't meet her burner proof, even if you assume it's credible.

[00:10:26] Speaker 01:
Even if we assume that there was no problem with her attending church in the United States, she still has to establish a reasonable possibility that she would be persecuted in China attending a house church, and she just has not done that with her testimony or any other evidence.

[00:10:40] Speaker 01:
The background conditions in the record

[00:10:43] Speaker 01:
is kind of equivocal.

[00:10:45] Speaker 01:
The latest State Department report, now the immigration judge did take administrative notice of the 2014 report, which is similar, but at page 815 of the record we do have the 2007 State Department report on religious practices, and that suggests that in some areas the Chinese authorities tolerate house churches.

[00:11:06] Speaker 01:
and they don't subjugate the attendees to persecution.

[00:11:10] Speaker 01:
And again, it's her burden to prove with evidence that she faces a reasonable possibility of persecution.

[00:11:16] Speaker 01:
And she just has not done that with this record.

[00:11:20] Speaker 01:
As far as her family, all her family, at least as far as her testimony suggests, they're Buddhist and they have not had any issues in China with their religion.

[00:11:30] Speaker 01:
And then turning to the family planning policy,

[00:11:33] Speaker 01:
She has not established, there are three general things you have to establish to create a family planning policy.

[00:11:39] Speaker 01:
First, the burden is on the petitioner to identify the relevant local family policy applicable to them.

[00:11:45] Speaker 01:
Two, they have to show that they would be seen in violation of that policy.

[00:11:50] Speaker 01:
And three, they have to show that the violation would rise to the level of persecution.

[00:11:55] Speaker 01:
Whatever China would do to her would rise to the level of persecution.

[00:11:59] Speaker 01:
And we don't have any of those steps met.

[00:12:01] Speaker 01:
We have evidence from the 2015 trial transcript that everyone's aware that the national policy in China has changed.

[00:12:09] Speaker 01:
It's been relaxed.

[00:12:10] Speaker 01:
But we have no details as to the extent of that relaxation or how local authorities, wherever she might end up, and I'm presuming her local province would apply that.

[00:12:22] Speaker 01:
The other issue is she has two United States citizen children.

[00:12:27] Speaker 01:
And even before China changes family planning policy, there's case law after case law that shows that China doesn't necessarily view United States-born children the same way they viewed Chinese-born children, at least as it applied.

[00:12:40] Speaker 03:
What about the question of her having another child when she went back?

[00:12:45] Speaker 03:
On that, the BIA says that she

[00:12:50] Speaker 03:
didn't say she wanted another child, but actually she did say that.

[00:12:54] Speaker 01:
Yes, Your Honor.

[00:12:55] Speaker 01:
She was equivocal in one spot, but the transcript does indicate when she was asked again, she did say yes.

[00:13:01] Speaker 03:
But I don't think that— She was equivocal in the testimony, or she was equivocal in her— Her declaration.

[00:13:09] Speaker 03:
Declaration.

[00:13:10] Speaker 01:
Yes, yes, ma'am.

[00:13:12] Speaker 01:
But I recognize the part of the transcript where she did say yes, but I don't think it changes the calculus because, again, you still have to show those three things and they just have not been met in this case.

[00:13:24] Speaker 03:
I don't understand.

[00:13:24] Speaker 03:
You're saying that she didn't show that there was an applicable two-child policy, but there doesn't seem to be any doubt that if she went back and had another child, the policy would apply to her.

[00:13:37] Speaker 01:
I don't believe it would, Your Honor, because in most cases, you have to show that it would apply to you.

[00:13:43] Speaker 01:
And United States citizen born children have not been shown.

[00:13:45] Speaker 03:
Oh, you mean the other two children just don't count, is that it?

[00:13:48] Speaker 01:
Right, right.

[00:13:49] Speaker 01:
Where is that in the record?

[00:13:51] Speaker 01:
It's not in the record.

[00:13:56] Speaker 01:
It's actually, let me see.

[00:13:57] Speaker 01:
Let me see.

[00:13:58] Speaker 01:
Hold on.

[00:14:00] Speaker 01:
I would have to submit it, Your Honor, in a 28-J, which I'd be happy to do.

[00:14:04] Speaker 01:
It's in one of the State Department reports.

[00:14:07] Speaker 01:
But in the matter of one of the board opinions, too, also discusses it.

[00:14:14] Speaker 04:
I mean, it doesn't seem, I don't recall the BIA relying on this particular point.

[00:14:21] Speaker 04:
You may be correct that the idea that if she were to have a third child, the Chinese government would essentially regard her as only having one because of the two US citizen children not counting.

[00:14:33] Speaker 04:
I don't recall the BIA getting into that.

[00:14:36] Speaker 01:
No, they did not, Your Honor.

[00:14:38] Speaker 01:
They just essentially called the claim speculative at this point with not enough evidence.

[00:14:43] Speaker 04:
So what do we do with the part of the BIA opinion that says she has not stated that she wants more children when in fact she did state that she would have more children?

[00:14:51] Speaker 04:
It just seems inaccurate.

[00:14:54] Speaker 01:
It is, Your Honor, but it's harmless air on this record because there still wasn't enough evidence to establish that she would face persecution returning to China even with two United States born children in an attempt to have a third.

[00:15:06] Speaker 04:
But the reason for that is that China won't count the first two children or is there some other reason for this?

[00:15:12] Speaker 01:
Well, not only do you have to show that China would count the first two children, which is one reason, but we don't know the actual policy.

[00:15:19] Speaker 01:
The burden is on the petitioner to put in the record evidence of the policy, and that is not in the record.

[00:15:25] Speaker 01:
The local policy.

[00:15:27] Speaker 01:
Yes, Your Honor, yes.

[00:15:29] Speaker 01:
We know that the national policy tolerates too, and it doesn't have any indication of what the penalty is for a third, but we definitely don't know anything about it.

[00:15:39] Speaker 03:
Given the fact that the BIA made this mistake,

[00:15:42] Speaker 03:
It didn't rely on whether or not or make any finding or make any conclusion about whether or not the policy would reply to her if she had a third child because it said she wasn't going to have a third child.

[00:15:55] Speaker 03:
So don't we have to just remand to do it over again?

[00:15:59] Speaker 01:
A remand is an option, Your Honor, but if it's a futile exercise, it wouldn't be worthwhile for a judicial or administrative efficiency.

[00:16:08] Speaker 03:
Harmless Sarah in immigration cases is exceedingly rare, right?

[00:16:12] Speaker 03:
I mean, it has to be just obvious.

[00:16:14] Speaker 03:
I mean, you're trying to patch together from pieces that the policy wouldn't apply to her, but the BIA never confronted that question because it had the wrong facts.

[00:16:28] Speaker 01:
Well, the policy would have to apply to her with the evidence in the record, and we don't have that evidence in the record.

[00:16:34] Speaker 01:
So even if the board had not stated inaccurately that fact, I think the result would still be the same.

[00:16:44] Speaker 01:
Unless your honors have any other questions, I will rest.

[00:16:50] Speaker 04:
Okay, it appears not.

[00:16:50] Speaker 04:
Thank you, Mr. Hayes.

[00:16:52] Speaker 04:
We'll hear rebuttal.

[00:17:06] Speaker 04:
Sir, can you unmute yourself so that we can hear you?

[00:17:08] Speaker 00:
Yes, I do.

[00:17:08] Speaker 00:
Yes.

[00:17:09] Speaker 00:
Thank you.

[00:17:09] Speaker 00:
Thank you, Judge.

[00:17:11] Speaker 00:
There are two policies.

[00:17:11] Speaker 00:
One is national policy, and the other one is local policy with regard to whether the two US-born children should be treated as Chinese citizens or not.

[00:17:21] Speaker 00:
And we don't have any record of the local policy.

[00:17:24] Speaker 00:
And I think the case is worth reminding to the BIA and to IHA to determine whether when the local policy was.

[00:17:31] Speaker 04:
But whose burden was that to put on the local policy?

[00:17:34] Speaker 04:
Are you saying it wasn't yours?

[00:17:36] Speaker 00:
Well, see, no, it is ours, but I think Mr. Hayes was saying that there are two systems, there are two policies.

[00:17:42] Speaker 00:
And my understanding is that the Chinese policy, the national policy treats the two US born children as her children once upon her return to China.

[00:17:52] Speaker 00:
And, you know, she's having two children.

[00:17:54] Speaker 00:
I think she's subject to forcible sterilization based on then current Chinese law of 2016.

[00:18:01] Speaker 00:
And she said that she was fearful of being sterilized back in court.

[00:18:08] Speaker 03:
So where is it in the record that the US citizen children would, either just themselves or a third child, be counted and lead to sterilization?

[00:18:23] Speaker 00:
Yeah, we don't have any record how the children will be counted.

[00:18:26] Speaker 03:
Well, if you don't have a record, isn't that your problem?

[00:18:30] Speaker 00:
We don't have any record saying that the court cannot be speculative and cannot make specular findings that the two children will be counted as US citizens upon her return to China.

[00:18:44] Speaker 04:
But I mean, looking at the BIA decision, under the line in which we're having questions about that's inaccurate, there is another line that says,

[00:18:54] Speaker 04:
that the evidence does not establish a policy of forced sterilization of parents who return to China with children who were born outside of that country.

[00:19:03] Speaker 04:
So is that getting at the point we're talking about here?

[00:19:08] Speaker 00:
Well, I think the BIA is wrong here.

[00:19:10] Speaker 00:
And BIA just misapplied the fact.

[00:19:14] Speaker 00:
And there's no record that the two children will be counted as US citizens.

[00:19:18] Speaker 00:
I think the BIA is committed an error.

[00:19:21] Speaker 02:
The BIA is relying on the IJ's decision on page 12, where it says, the record contains no information on the treatment of children beyond the quota who are born outside of China.

[00:19:31] Speaker 02:
And so, and I think you agree that it's your responsibility, your client's responsibility to put something in the record about that.

[00:19:39] Speaker 02:
So point to where in the record that is at.

[00:19:45] Speaker 00:
I think that if there is no record showing that two children will be treated as the US citizen, and nobody can make a speculacy finding,

[00:19:57] Speaker 00:
And the finding should be, you know, the children should be counted as two Chinese citizens upon her return.

[00:20:06] Speaker 04:
Okay, we've taken you over here a lot of time.

[00:20:08] Speaker 04:
Let me see if there's additional questions from my colleagues.

[00:20:13] Speaker 04:
That does not appear so.

[00:20:14] Speaker 04:
Mr. Wang, I want to thank you for your argument.

[00:20:15] Speaker 04:
Mr. Hayes, thank you as well.

[00:20:17] Speaker 04:
We appreciate the arguments this morning, and this case is submitted.

[00:20:20] Speaker 03:
I just want to say one thing in general.

[00:20:23] Speaker 03:
The court now has a policy that people are supposed to appear for argument in person.

[00:20:29] Speaker 03:
Neither of you did.

[00:20:30] Speaker 03:
And you had reasons which were essentially, as I recall, a pain.

[00:20:38] Speaker 03:
We don't want to come.

[00:20:39] Speaker 03:
And I think we're going to be stricter about these things in the future.

[00:20:42] Speaker 03:
So please do plan to appear.

[00:20:46] Speaker 00:
Thank you.

[00:20:46] Speaker 00:
Thank you so much.

[00:20:47] Speaker 00:
Thank you, Judge.

[00:20:47] Speaker 04:
Thank you, Judge Berzan.

[00:20:49] Speaker 04:
Okay, this matter is submitted.

[00:20:50] Speaker 04:
We'll ask counsel for our second case to please come up.