On March 26, 2010, the Board of Immigration Appeals issued a published decision in Matter of H-L-H- & Z-Y-Z, 25 I&N Dec. 209, Interim Decision # 3676 (BIA 2010).  In that case, the IJ granted asylum to a couple from China who feared persecution / forced sterilization.  DHS appealed.  The Board sustained the appeal and ordered the couple removed to China.  Some key points from that decision:

While the Immigration Judge’s findings of fact are reviewed under the “clearly erroneous” standard, the question whether the facts are sufficient to establish that the respondent has a well-founded fear of persecution upon return to China is a legal determination that we review de novo.

Determining whether a fear of what may happen in the future is well founded essentially involves predicting future events, and “it is impossible to declare as ‘fact’ things that have not yet occurred.” … We therefore review de novo the question whether the respondent has carried her burden of establishing a well-founded fear [of future persecution].

In order to determine, under de novo review, whether specific facts are sufficient to meet a legal standard such as a “well-founded fear,” the Board has authority to give different weight to the evidence from that given by the Immigration Judge…. This authority is critical to permit the Board to determine whether the facts as found by the Immigration Judge meet the relevant legal standard….

State Department reports on country conditions, including the Profiles of Asylum Claims & Country Conditions, are highly probative evidence and are usually the best source of information on conditions in foreign nations.

The Board seems to have discounted letters and news articles that did not accord with the State Department reports on China.  While it is understandable that the BIA would give significant weight to reports from the U.S. government, it seems a bad precedent to minimize evidence that may be more specific to the asylum seekers’ circumstances.