Zhou Hua Zhu v. U.S. Attorney General, 703 F.3d 1303

Background

Zhu Hua Zhu, a Chinese citizen, entered the U.S. without inspection and faced removal proceedings starting September 8, 1998.
Initially Zhu sought asylum based on religious persecution; IJ denied relief in 1998 and ordered removal.
Zhu later argued that returning to China with three U.S.-born children would subject him to forcible sterilization and heavy fines under family planning policy.
An IJ in 2009 granted asylum after finding Zhu credible and that he would likely be subject to the policy; the IJ noted evidence suggesting sterilization and counted his American-born children under the policy.
The BIA overturned the IJ in June 2011, reviewing the likelihood of sterilization de novo and relying on country-conditions reports to deny relief.
The Eleventh Circuit held that the BIA committed legal error by de novo reviewing predictive factual findings and remanded to apply the correct clear-error standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA could review predictive facts de novo	Zhu contends BIA violated § 1003.1(d)(3) by de novo review of a predictive fact.	Zhu (government) argued BIA can de novo review well-founded fear determinations including future-prediction.	Rejected; de novo review of predictive facts is impermissible; must review for clear error.
Whether the BIA engaged in improper factfinding or reweighing	Zhu asserts BIA impermissibly reweighed IJ facts without clear-error standard.	BIA claimed it simply weighed evidence differently under its discretionary review.	BIA engaged in improper de novo factfinding and reweighing; remand required.

Key Cases Cited

In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (B.I.A. 2010) (predictive findings re future persecution reviewed for de novo; not consistent with § 1003.1(d)(3))
In re A-S-B-, 24 I. & N. Dec. 493 (B.I.A. 2008) (predictive likelihood of future harm treated as not factual; deference arguments discussed)
In re V-K-, 24 I. & N. Dec. 500 (B.I.A. 2008) (likelihood of torture treated as de novo matter; not a factual finding)
Kaplun v. Att’y Gen. of the U.S., 602 F.3d 260 (3d Cir. 2010) (two-part mixed question approach for well-founded fear (fact + legal standard))
Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012) (rejects de novo review of IJ's predictive findings in CAT cases)
Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) (admonishes BIA for improper handling of predictive findings in CAT claims)
Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315 (11th Cir. 2007) (distinguishes legal vs. factual components in CAT well-founded fear analysis)
Arboleda v. U.S. Att’y Gen., 434 F.3d 1220 (11th Cir. 2006) (predict relocation within country treated as factual; reviewed for substantial evidence)
Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012) (Second Circuit adopts Kaplun-like framework for predictive well-founded fear)
Yusupov v. Att’y Gen. of the U.S., 650 F.3d 968 (3d Cir. 2011) (distinguishes CAT predicate de novo review from past facts; supports limits on de novo review)
En Hui Huang v. Att’y Gen. of the U.S., 620 F.3d 372 (3d Cir. 2010) (affirms framework distinguishing two parts of well-founded fear analysis)