Sheng Bing He v. Gonzales

MEMORANDUM *

Sheng Bing He and Hui Xin Chen (collectively “Petitioners”) appeal from the Board of Immigration Appeals’ (“BIA”) denial of their joint application for asylum.

The petitioners sought asylum based on their fear of future persecution arising out of China’s coerced family planning regime. Part of their claim was based on their fear that a return to China would have risked the forced abortion of the couple’s child, with which the wife was pregnant at the time of the applications and the IJ’s decision. The BIA denied relief, reasoning in part that the child would have been born by the time the BIA considered her case, undermining her fear of future persecution.

When the BIA proposes to take judicial notice of individualized facts in reaching a decision on appeal, it must provide the petitioners notice of its intent and an opportunity to rebut the extra-record facts. Getachew v. INS, 25 F.3d 841, 846 (9th Cir.1994). Here, the BIA denied relief in large part based on taking notice of extrajudicial facts that did not form part of the immigration judge’s decision without affording the petitioners an opportunity to address the newly considered facts.

That a child has been…

dissenting.

The majority disposition raises grave concerns about the limits of our subject matter jurisdiction, separation of powers, an immutable principle of human biology, and whether Roe v. Wade controls asylum claims. Because petitioners did not exhaust any of these arguments before the Board of Immigration Appeals (Board), this should be a very simple case. I respectfully dissent. Because I believe that Chen has failed to establish her eligibility for asylum, I do not address the merits of He’s argument that the Board erroneously determined that he was not eligible for derivative asylum because petitioners are *631 unmarried.

I.

When the petitioners filed their application for asylum, they based their claim solely on their fear that Chen’s then-current pregnancy would be forcibly aborted. Neither their asylum petition nor their testimony gave the slightest indication that they feared a future pregnancy would be terminated. Even after the Immigration Judge (IJ) construed the petition as relating only to Chen’s current pregnancy, petitioners never raised an objection to the Board. This argument is as unexhausted as any argument could ever possibly be.

It is clear that…