HUANG v. ATT'Y GEN. U.S

ion, and that apprehension must be objectively reasonable in light of the circumstances of the alien's case. Sioe Tjen Wong v. Att'y Gen., 539 F.3d 225, 232 (3d Cir. 2008). The objective component of the analysis requires the alien to show that a reasonable person in his position would fear persecution, either because he "would be individually singled out for persecution" or because "there is a pattern or practice in his home country of persecution" against a group of which he is a member. Id. (internal quotations omitted); see also Cantara v. Att'y Gen., 580 F.3d 196, 202 (3d Cir. 2009) (observing that the objective component of the well-founded fear analysis requires the alien to demonstrate that "a reasonable person in her circumstances would fear persecution if returned to her native country").

1. BIA's Standards of Review in Asylum Cases

Under 8 C.F.R. § 1003.1(d)(3), the BIA may not reverse an IJ's factual findings unless they are clearly erroneous. Id. § 1003.1 (d)(3)(i). The IJ's legal conclusions, however, are subject to plenary review. Id. § 1003.1(d)(3)(ii). The BIA also has plenary review over the IJ's exercise of discretionary authority. Id. Thus, questions of judgment, such as an IJ's decision to grant asylum, to reopen the record, or to reconsider a disposition, receive no deference from the BIA. Whether a particular determination by the IJ constitutes a finding of fact or a conclusion of law is significant because that characterization affects the level of deference that the BIA must give to the determination.

The BIA's standards of review differ markedly from the standard that governs our review of BIA decisions. We lack jurisdiction to review the grant or denial of many forms of discretionary relief, 8 U.S.C. § 1252(a)(2)(B), and when reviewing asylum petitions, over which we do possess jurisdiction, id., we may not reverse the BIA's discretionary actions unless they are "contrary to law and an abuse of discretion." Id. § 1252(b)(4)(D).

In this appeal, Huang argues that the BIA did not apply the correct standard of review when it rejected the IJ's conclusion that she has a well-founded fear of persecution. Huang asserts that the question of whether an alien has a well-founded fear of persecution is a purely factual one and that the BIA may reverse an IJ's finding that an alien has such a fear only if the finding is clearly erroneous. According to Huang, the BIA's reversal departed from the "clearly erroneous" standard because the record contains sufficient evidence to support the IJ's finding that she possesses a well-founded, fear of sterilization. The government responds by relying on In re A-S-B-, 24 I. N. Dec. 493, 498 (B.I.A. 2008), in which the BIA held that it exercises de novo review over the question of whether an alien possesses a well-founded fear of persecution because that determination requires speculation about future events and therefore does not qualify as factfinding. Huang does not expressly challenge A-S-B-, but, in arguing that a well-founded fear of persecution presents a purely factual issue, she nonetheless calls that decision into question. Thus, we begin by considering whether A-S-B- is consistent with the standards of review described in § 1003.1(d)(3).

a. Validity of A-S-B- in the Asylum Context

In A-S-B-, the BIA held that the forecasting of future events in an asylum case does not constitute fact-finding because predictions are inherently speculative and it is "impossible to declare as `fact' things that have not yet occurred." 24 I. N. Dec. at 498. The BIA has therefore taken the position that no deference is owed to an IJ's conclusion regarding the risk that an event will take place once an alien is repatriated. Id.; see also In re H-L-H Z-Y-Z-, 25 I. N. Dec. 209, 212 (B.I.A. 2010) ("We . . . review de novo the question whether the respondent has carried her burden of establishing a well-founded fear that the family planning policy will be enforced against her through means constituting persecution upon her return to China.").

In Kaplun v. Attorney General, 602 F.3d 260 (3d Cir. 2010), we considered in the context of a CAT claim whether A-S-B- set forth a valid interpretation of the standards of review required by § 1003.1(d)(3). The BIA had, as in asylum cases, concluded that the forecasting of future events in the CAT context did not constitute fact-finding because it involved speculation. See In re V-K-, 24 I. N. Dec. 500, 501 (B.I.A. 2008) ("Although predictions of future events may in part be derived from "facts," they are not the sort of "[f]acts determined by the Immigration Judge" that can only be reviewed for clear error." (quoting § 1003.1(d)(3))). We rejected that holding as a plainly erroneous interpretation of § 1003.1(d)(3) because the probability of an event occurring in the future exists independently of the event itself, and is therefore a separate and distinct "fact" in the relevant legal sense. Kaplun, 602 F.3d at 269. "This likelihood, while an assessment of a future event, is what a decision-maker in an adjudicatory system decides now as part of a factual framework for determining legal effect." Id. We explained that while the event may occur in the future, the possibility of its occurring exists in the present. Thus, a determination by an IJ that an event may take place when an alien is repatriated constitutes a finding of fact because the probability itself currently exists and gives rise to a present apprehension of the event it represents. Id. Accordingly, we concluded that, "insofar as the BIA interpret[s] 8 C.F.R. § 1003.1(d)(3) to hold that an IJ's assessment of [future events] is not a finding of fact because the events have not yet occurred, . . . its interpretation plainly errs." Id. (citing Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)).

We reserved judgment in Kaplun regarding whether A-S-B-'s holding might nonetheless continue to govern in asylum cases. 602 F.3d at 269 n. 7 ("To the extent that A-S-B . . . address[es] the standard of review applied to an IJ's determination of a `well-founded fear of future persecution' in the asylum context . . ., we do not purport to resolve that issue at this time."). We now conclude, however, that, for essentially the reasons expressed in Kaplun, A-S-B-'s interpretation of § 1003.1(d)(3) is plainly erroneous. That section applies to both CAT and asylum cases, and, though there are important distinctions between the two, see infra note 7, the process of forecasting future events is a factual inquiry in an asylum case for the same reasons it is in a CAT case. In considering a CAT case, the IJ must identify what events are likely to occur after repatriation and, once that is done, must determine whether the alien has demonstrated that what he is likely to suffer amounts to torture. Similarly, an asylum case requires the IJ to determine what events have a reasonable possibility of occurring, so that there can be an assessment of whether an alien possesses a well-founded fear of persecution. We therefore conclude that the interpretation of § 1003.1(d)(3) in A-S-B- cannot stand, and we hold that an IJ's forecasting of future events constitutes fact-finding that the BIA must review under the clearly erroneous standard. However, that is far from the end of the matter.

b. Analysis of IJ Asylum Decisions

The assessment of future events is only one part of the analysis of an asylum case based on the assertion of a well-founded fear of persecution. In any asylum case predicated on the fear of future persecution, an IJ must answer three essential questions. First, as just noted, the IJ must ask what may happen if the alien returns to his home country. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (reflecting that asylum protects aliens who show that they may be persecuted if they return home). Second, the IJ must question whether those events meet the legal definition of persecution. See Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004) (rejecting an asylum claim because the alien failed to show that the treatment he might encounter upon returning home qualified as persecution). Third, the IJ must consider whether the possibility of those events occurring gives rise to a well-founded fear of persecution under the circumstances of the alien's case. See Espinosa-Cortez, 607 F.3d at 108 (stating that, to establish a well-founded fear, the alien must prove that he has a subjective apprehension of harm and that his fear is objectively reasonable).

As we stated above, the IJ's answer to the first question is factual in nature and is subject to clearly erroneous review by the BIA. The answer to the second question — whether those events meet the legal definition of persecution — is reviewed de novo because it is plainly an issue of law. Cf. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 54,878, 54,890 (Aug. 26, 2002) ("The immigration judge's determination[] of whether . . . facts demonstrate harm that rises to the level of `persecution[]' . . . [is] not . . . limited by the `clearly erroneous' standard."). The question we turn to here is what standard of review the BIA should apply when a party challenges the Us answer to the third question, whether the facts support a well-founded fear of persecution.

To address that issue, we turn to the text of § 1003.1(d)(3) and to the Attorney General's guidance regarding implementation of that regulation. See Lewis v. Atlas Van Lines, Inc., 542 F.3d 403, 409 (3d Cir. 2008) ("We begin our analysis . . . with the rule that `[t]he basic tenets of statutory construction apply to construction of regulations and our starting point on any question concerning the application of a regulation is its particular written text.'" (quoting Pa. Fed'n of Sportsmen's Clubs, Inc. v. Kempthorne, 497 F.3d 337, 351 (3d Cir. 2007))); Bragdon v. Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) ("[T]he well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." (internal quotation omitted)).

The text of 8 C.F.R. § 1003.1(d)(3)(i) (ii) is as follows:

(d) Powers of the Board [of Immigration Appeals] — . . .

(3) Scope of review.

(i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.

(ii) The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.

Section 1003.1(d)(3) provides that IJ decisions that are purely factual in nature receive clear error review. 8 C.F.R. § 1003.1(d)(3)(i). All other decisions are reviewed de novo. Id. § 1003.1(d)(3)(ii). The Attorney General has explained that, under this two-tiered system, the highly deferential clearly erroneous review applies only to the IJ's description of the events and circumstances that

form the factual basis for the decision under review. The `clearly erroneous' standard does not apply to determinations of matters of law, nor to the application of legal standards, in the exercise of judgment or discretion. This includes judgment as to whether the facts established by a particular alien amount to "past persecution" or a "well-founded fear of future persecution."

Procedural Reforms to Improve Case Management, 67 Fed.Reg. at 54,890. The Attorney General's guidance thus suggests that the answer to the third question — whether the facts give rise to a well-founded fear of persecution — is subject to de novo review because it requires the exercise of judgment in the application of the well-founded fear standard to the facts of the alien's case. Id. The factual-versus-legal distinction is less clear on this point, however, because the definition of a well-founded fear of persecution includes elements that are both legal and factual in nature.

The government's briefing correctly observes that judging the objective reasonableness of the alien's fear involves a "legal standard[] that must be applied to the immigration judge's factual findings, and [is] thus reviewed by the Board de novo." (Gov't Supp. Br. at 2.) In essence, the government acknowledges that whether an alien has a well-founded fear presents a mixed question of fact and law. We agree. A mixed question of fact and law is one that requires application of a legal standard to a particular set of circumstances. See 9C CHAELES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2589, at 473 (3d ed. 2008) (characterizing mixed questions as those which "involve elements of both law and fact"). That is precisely the nature of the well-founded fear inquiry.

An IJ reviewing an assertion of well-founded fear must determine whether the alien has an objectively reasonable fear of persecution based on the events that may occur if he returns home. See Procedural Reforms to Improve Case Management, 67 Fed.Reg. at 54,890 (characterizing the well-founded fear inquiry as an analysis requiring "the application of legal standards"); see also Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 7309, 7315 (Feb. 19, 2002) (describing, in a proposed version of § 1003.1(d)(3), that the regulation was "not [designed to] preclude the Board from reviewing mixed questions of law and fact, including, without limitation, whether an alien has established a well-founded fear of persecution"). The factual part of the inquiry requires the IJ to evaluate what may occur when the alien is repatriated, including whether there has been a pattern or practice in the alien's home country of targeting for persecution a statutorily protected group of which the alien is a member or whether he will be individually targeted based on a protected characteristic. The legal part of the inquiry requires the IJ to apply the objective reasonableness standard and determine whether the predicted events (and pattern or practice, if applicable) would cause a reasonable person in the alien's situation to fear persecution. That legal piece of the analysis properly receives de novo review from the BIA. 8 C.F.R. § 1003.1(d)(3)(ii) ("The Board may review questions of law, discretion, judgment and all other issues . . . de novo.").

There is an important difference between this kind of analysis and the one that we set forth in Kaplun for CAT claims. The CAT requires an alien to prove that it is more likely than not he will be tortured if he is repatriated. Gomez-Zuluaga, 527 F.3d at 349. Thus, an IJ may award relief under the CAT if the IJ, first, identifies what may occur when the alien returns home, second, attaches a probability of more than 50% to that event, and, third, determines that the probable event qualifies as torture. In an asylum case, however, "well-founded fear" turns not on an assessment of what is more likely than not but on what is "possible," and then on whether the alien's fear of that possibility is reasonable. See Espinosa-Cortez, 607 F.3d at 108 ("To satisfy the objective prong [of the well-founded fear test], the petitioner must show that a reasonable person in the alien's circumstances would fear persecution if returned to the country in question." (internal quotation marks and citation omitted)). Fundamental to the inquiry is a factual determination regarding whether the event the alien allegedly fears falls within the realm of the possible, but an equally fundamental component of the analysis requires a judgment about whether the possible event actually gives rise to a reasonable fear. In terms of the "possibility," the Supreme Court has noted that "[o]ne can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place." Cardoza-Fonseca, 480 U.S. at 431, 107 S.Ct. 1207. An IJ may find an event to be reasonably possible and conclude that an alien would have a well-founded fear of persecution based on it. The BIA may review that decision, and conclude, without rejecting the IJ's factual finding regarding the possibility of the event, that, in its judgment, the possibility of the event does not give rise to an objectively reasonable fear of persecution. Such a determination does not reject the IJ's factual finding that the event may occur; it merely constitutes a judgment by the BIA that the event, though possible, does not give rise to an objectively reasonable fear. That exercise is properly performed using a de novo standard of review.

Treating the reasonableness of an alien's fear as a mixed question of fact and law is in keeping with how appellate tribunals typically treat issues of objective reasonableness. See 9C WRIGHT MILLER, § 2589, at 473-74 ("[T]here is substantial authority that . . . determination [of mixed questions of fact and law] is not within the ambit of the `clearly erroneous' rule and they are freely reviewable. . . . "). For example, in the context of qualified immunity for constitutional torts, the reasonableness of a state actor's conduct based on undisputed facts is subject to de novo review as a question of law. See Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002) (concluding that the reasonableness of a state actor's conduct must be decided by the court). Similarly, when interpreting ambiguous contract provisions, courts ask as a matter of law how a reasonable person would read the term at issue. See M BIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 210 (3d Cir. 2005) ("Whether a contract is ambiguous is determined according to an objective, reasonable-person standard and is a question of law."). Also, when ruling on a federal criminal defendant's claim for ineffective assistance of counsel, courts determine as a mixed question of fact and law whether the conduct of the petitioner's trial counsel comported with that of an objectively reasonable attorney. See United States v. Cross, 308 F.3d 308, 314 (3d Cir. 2002) (stating that ineffective assistance claims challenging the validity of a federal sentence "present mixed questions of law and fact" subject to de novo review). Even in negligence cases, where questions of reasonableness are submitted to juries and reviewed for clear error on appeal, Travelers Indem. Co. v. Ewing, Cole, Erdman Eubank, 711 F.2d 14, 17 (3d Cir. 1983), federal courts have recognized that analyzing cases in that way "is an exception to the general rule that mixed questions of law and fact are reviewed de novo." Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th Cir. 1995).

That standard of review is, moreover, consistent with the Attorney General's ex pressed goal in promulgating the BIA's two-tier level of review, namely, to bring national uniformity to immigration law by allowing the BIA "to consider and resolve instances where `differing decisions may be reached based on essentially identical facts.'" Procedural Reforms to Improve Case Management, 67 Fed. Reg. at 54,890 (quoting In re Burbano, 20 I. N. Dec. 872, 873 (B.I.A. 1994)). Many aliens flee their home countries under very similar circumstances that should, in fairness, lead to similar outcomes in their asylum petitions. If a determination regarding an alien's well-founded fear were reviewed only under the clearly erroneous standard, it would be difficult to confront the problem of multiple I Js reviewing substantively similar asylum petitions but reaching different conclusions about whether a reasonable person would have a well-founded fear of persecution. The BIA would be powerless to correct the disparity, even when the petitions were identical in all meaningful respects. The BIA has recognized that preventing this type of discord among IJ decisions is one of its major institutional goals, and one that requires it to exercise de novo review over how reasonable people would respond to a particular set of facts. Burbano, 20 I. N. Dec. at 873-74 ("The advantage of an independent standard of review is that it promotes uniformity in the application of the various discretionary provisions of the [INA]"); see also In re Crammond, 23 I. N. Dec. 9, 15 (B.I.A.) ("Important policy considerations favor applying a uniform federal standard in adjudicating removability . . . under the Act."), vacated on other grounds by 23 I. N. Dec. 179 (B.I.A. 2001).

Characterizing objective reasonableness in this way is also consistent with our precedent. We have recognized that the BIA exercises de novo review over "the determination as to whether certain facts give rise to a well-founded fear of persecution." Sheriff v. Att'y Gen., 587 F.3d 584, 592 (3d Cir. 2009). The well-founded fear inquiry depends heavily upon applying a legal standard to the factual issues of a particular alien's case, and we have stated that the BIA's disposition of the inquiry "`must be upheld if it is supported by substantial evidence in the record.'" Espinosa-Cortez, 607 F.3d at 107 (quoting Gomez-Zuluaga, 527 F.3d at 340). Thus, the BIA has greater latitude in reviewing an IJ's decision on well-founded fear than do we when reviewing the disposition of the BIA itself. Compare Procedural Reforms to Improve Case Management, 67 Fed.Reg. at 54,890 ("The `clearly erroneous' standard does not apply . . . to the application of legal standards, . . . including] judgments as to whether the facts established by a particular alien amount to . . . a well-founded fear of future persecution.'"), with Kibinda v. Att'y Gen., 477 F.3d 113, 118-19 (3d Cir. 2007) (stating that the administrative determination regarding a well-founded fear of persecution must be upheld unless "the evidence not only supports a contrary conclusion, but compels it" (internal quotations omitted)). It is therefore appropriate for the Attorney General to grant the BIA de novo review over the "objective reasonableness" component of the well-founded fear inquiry, even though we grant greater deference to the BIA's disposition of that question on a petition for review.

Courts of Appeal have recognized a variety of situations in which administrative agencies — by virtue of their particular expertise and Congressional mandate — possess greater latitude in addressing mixed questions of fact and law than do appellate courts when reviewing administrative dispositions. See Lion Uniform, Inc., Janesville Apparel Div. v. NLRB, 905 F.2d 120, 123-24 (6th Cir. 1990) (finding that an agency could properly review an administrative law judge's award of attorney fees de novo, even though the same issue was reviewed by the court of appeals for substantial evidence, because the two types of appeal were designed to accomplish different functions: whereas the administrative appeal was designed to render disposition on behalf of the agency, judicial review was created only to ensure that the agency's decision was rooted in the record); compare 24 C.F.R. § 26.52(k) (providing that the Secretary of Housing and Urban Development, when reviewing decisions issued by an administrative law judge ("ALJ"), may "affirm, modify, reduce, reverse, compromise, remand, or settle any relief" granted by the ALJ), with White v. U.S. Dep't of Horn. Urban Dev., 475 F.3d 898, 904 (7th Cir. 2007) (indicating that the Secretary's determination receives "deferential!] review" from the court of appeals and will be "reverse[d] only if the determination is legally or procedurally unsound, or is unsupported by substantial evidence" (internal quotation omitted)); compare 5 U.S.C. § 557(b) (stating that, when an ALJ renders a decision, the agency who has jurisdiction over that ruling may review that decision using "all of the power which it would have[,]" had it made the decision in the first instance), with id. § 706(2) (proving that a court reviewing an agency's final determination may reverse only, among other things, for a lack of substantial evidence or if the agency acted in an arbitrary manner or abused its discretion).

In sum, evaluating whether a reasonable person would fear persecution under a particular set of circumstances requires the exercise of legal judgment in applying a standard of objective reasonableness to the facts of an alien's particular case. The resulting determination is one over which the BIA has plenary review. 8 C.F.R. § 1003.1(d)(3)(ii). Of course, part of the well-founded fear determination may depend on disputed facts, which must be resolved by the IJ, whose decisions in that regard are subject to clearly erroneous review. Once the IJ resolves factual issues, though, assessing how a reasonable person would respond to those facts is a question of law, and the BIA is within its authority to review that assessment under a de novo standard.

However, when the BIA reaches a different conclusion than the IJ, either on the facts or the law, its review must reflect a meaningful consideration of the record as a whole. It is not enough for the BIA to select a few facts and state that, based on them, it disagrees with the IJ's conclusion. Cf. Sheriff, 587 F.3d at 595 (faulting BIA for neglecting to consider several facts crucial to the petitioner's asylum application, including the fact that government forces in her native country had destroyed her home, murdered her mother, and raped her daughter in her presence). Instead, the BIA must describe its reasoning with enough specificity to inform the parties and us why it reached its conclusion. See Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003) ("In order for us to be able to give meaningful review to the BIA's decision, we must have some insight into its reasoning."). The BIA must show that it reviewed the record and considered the evidence upon which the IJ relied, and it must explain why the record warrants a different conclusion than the one reached by the IJ. In an asylum case, this means that the BIA must examine the record of the petitioner's case and explain why, based on that record, an objectively reasonable alien would not fear persecution if returned to his home country.

2. The Merits of Huang's Asylum, Petition

While the BIA was free to disagree with the IJ as to whether the evidence showed that Huang had an objectionably reasonable well-founded fear, it could only do so if, as noted above, it considered the record as a whole. Unfortunately, the BIA's opinion does not reflect that type of consideration. In granting asylum, the IJ relied on the 2007 State Department letter. That letter indicates that U.S. officials know of no policy at the national or provincial level that "mandates] the sterilization of one partner of couples that have given birth to two children[,]" and that, to the extent an unwritten practice of sterilization exists, Chinese citizens may be able to avoid it by either paying social compensation fees or by choosing not to register their children as members of their house-hold. ( Id. at 1353.) However, the letter says nothing about whether local family-planning policies require sterilization, and Huang submitted a 2003 administrative decision issued by the FDFPA that contradicts what was said in the 2007 State Department letter. According to that decision, a child born outside of China to Chinese parents who do not have permanent residency in the child's country of birth "shall be treated as a Chinese national and citizen for . . . domestic administrative purposes," including enforcement of Fujian family-planning regulations. ( Id. at 1895.) Even the 2007 State Department letter states that, "[although Chinese officials assert that national laws and policy and provincial regulations do no permit forced abortions or sterilizations, there is evidence that they have taken place." ( Id.) There is additional evidence from the State Department to corroborate that finding. For example, according the 2007 Asylum Profile, the State Department had received reports of compulsory sterilizations in Fujian Province as recently as 2006. The 2006 Country Report confirms that, as of 2006, reports of forced sterilizations in derogation of the national policy continued to emanate from Fujian Province. In Fujian and elsewhere, according to the report, parents of two children commonly faced extreme psychological and economic pressure to be sterilized, "sometimes [leaving] women with little practical choice but to undergo abortion or sterilization." (R. at 966.)

Yet the BIA discussed none of that evidence, instead devoting its analysis to explaining why the lack of an express sterilization policy, Huang's lack of individualized evidence, her in-laws' letter, and the affidavit from the Chinese citizen who fathered two children in Japan were insufficient to establish an objectively reasonable fear of persecution. The BIA simply failed to address any evidence that, if credited, would lend support to Huang's asserted fear of sterilization, and thus the decision does not reflect a consideration of the record as a whole. While we are not suggesting that the BIA must discuss every piece of evidence mentioned by an asylum applicant, it may not ignore evidence favorable to the alien, particularly when, as here, the alien's administrative brief expressly calls the BIA's attention to it. See Espinosa-Cortez, 607 F.3d at 107 ("[T]he BIA is not permitted simply to ignore or misconstrue evidence in the asylum applicant's favor.").

The BIA's analysis does little more than cherry-pick a few pieces of evidence, state why that evidence does not support a well-founded fear of persecution, and conclude that Huang's asylum petition therefore lacks merit. That is selective rather than plenary review. "Plenary" means "full; complete; entire," BLACK'S LAW DICTIONARY (9th ed. 2009), and with the power to conduct plenary review goes the responsibility to conduct it. The BIA must provide sufficient analysis to demonstrate that it has truly performed a full review of the record, including the evidence that may support the alien's asylum claim. See Toussaint v. Att'y Gen., 455 F.3d 409, 414 (3d Cir. 2006) (requiring the BIA to perform an analysis of sufficient depth to permit meaningful appellate review of its reasoning). Because the BIA's decision does not indicate that such a review took place in Huang's case, we will grant the petition for review, vacate the final order of removal entered by the BIA, and remand for further proceedings.

Huang claims that the BIA erred in denying her request for withholding of removal, for the same reasons that she appeals its asylum disposition. The substantive elements for obtaining withholding are the same as for asylum, except that the alien must prove by a preponderance of the evidence, rather by a reasonable probability, that he will be persecuted based on a statutorily protected ground if he is repatriated. Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). Because the BIA performed an inadequate asylum analysis and did not independently assess Huang's right to withholding of removal, we cannot meaningfully address withholding of removal beyond what is pertinent from our analysis of the asylum claim. We will therefore remand Huang's withholding claim for further consideration in light of this opinion.

We note one final concern with respect to the merits. The way that the BIA approached its analysis — selecting only those pieces of evidence that cast doubt on the likelihood of Huang's being sterilized — suggests that the BIA was concerned with whether Huang had demonstrated that forced sterilization is more likely than not to occur if she is repatriated, when it should instead have been assessing whether there was a reasonable possibility of forced sterilization and whether her fear was objectively reasonable, and thus well founded. In Cardoza-Fonseca, the Supreme Court, cautioning that the fact that the fear must be "well-founded" does not "transform the standard into a `more likely than not' one," cited the example of well-founded fear given by a "leading authority":

Let us . . . presume that it is known that in the applicant's country of origin every tenth adult male person is either put to death or sent to some remote labor camp. . . . In such a case it would be only too apparent that anyone who has managed to escape from the country in question will have "well-founded fear of being persecuted" upon his eventual return.

480 U.S. at 431, 107 S.Ct. 1207 (quoting 1 A. Grahl-Madsen, The Status of Refugees in International Law 180 (1966)). The BIA should be mindful of this distinction in considering the evidence anew on remand.

The BIA, of course, is not prevented from opening other avenues of inquiry, if it chooses to remand the case to the IJ.

B. Motion to Remand

Huang also argues that the BIA abused its discretion in denying her motion to remand for consideration of her new evidence. The BIA treats a motion to remand for the purpose of submitting additional evidence in the same manner as motions to reopen the record. See 8 C.F.R. § 1003.2(c)(4); In re Coelho, 20 I. N. Dec. 464, 471 (B.I.A. 1992) ("[W]here a motion to remand is really in the nature of a motion to reopen or a motion to reconsider, it must comply with the substantive requirements for such motions."). The alien must show that the "evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1). The BIA may deny a motion to reopen if it determines that "(1) the alien has not established a prima facie case for the relief sought; (2) the alien `has not introduced previously unavailable, material evidence'; or (3) in the case of discretionary relief (such as asylum), the alien would not be entitled to relief even if the motion was granted." Caushi v. Att'y Gen., 436 F.3d 220, 231 (3d Cir. 2006) (quoting INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). To establish a prima facie case for asylum, the alien must produce objective evidence that, when considered together with the evidence of record, shows a reasonable likelihood that he is entitled to relief. Guo v. Ashcroft, 386 F.3d 556, 563 n. 7 (3d Cir. 2004). The BIA "must actually consider the evidence and argument that a party presents" and may not summarily dismiss the motion. Zheng v. Att'y Gen., 549 F.3d 260, 266 (3d Cir. 2008) (quoting Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)). We review the denial of a motion to remand or to reopen for abuse of discretion, and "will uphold that determination if it is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Id. (quoting INS v. Elias Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

Huang seeks remand for the IJ to consider the following new evidence:

(1) Chinese passports and travel documents for her two children.

(2) Family-planning propaganda, including posters and a 2006 desk-calendar issued by authorities in Lang Qi, Fujian Province, describing family-planning policies, none of which state that sterilization is mandatory after two births.

(3) A report from DHS following an investigative officer's attempts to authenticate certain documents describing birth control polices in Fujian Province. The report identifies the following documents as authentic:

(3a) Two documents issued by the FDFPA dated January 17, 2007, indicating that the foreign-born children of Chinese citizens are not counted under the family-planning policy unless they are registered as permanent residents of China.

(3b) A printout from the website of the National Family Planning Commission, stating that "Returned Overseas Chinese are not allowed to have another child, provided that they have already given birth to two or more children abroad."

(3c) Two administrative decisions issued in 2003 by the FDFPA and the Changle City Family Planning, which state that Chinese citizens who give birth abroad will be subject to enforcement of family-planning regulations once they return home unless they qualified as permanent residents of the nation in which their children were born at the time the birth occurred.

(3d) The July 1999 poster describing birth-control policies in Changle City.

(4) An affidavit dated November 15, 2007 from Huang's mother-in-law, Li Ping Ye, stating that birth control authorities informed her that Huang will be required to undergo a sterilization procedure if she returns to Fuzhou.

(5) A document purporting to be an official certification issued by Fuzhou family-planning authorities indicating that Huang will be sterilized if she returns to Fuzhou.

(6) A statement dated September 2, 2004, from the Fujian Foreign Affairs Office in response to a U.S. State Department inquiry indicating that Fujian family-planning policies were amended in 2002, and that, since then, there has been no official policy man-dating sterilization.

The BIA refused to consider all of this new evidence on the grounds that it did not qualify as new or material because it was available at the time of the hearing and was cumulative of other evidence of record.

We conclude that the BIA properly denied Huang's motion to remand with respect to all of the newly submitted evidence except the certification purportedly issued by Fuzhou family-planning authorities (Item 5). Much of the supposedly new evidence was either within Huang's control at the time of the IJ proceedings or is duplicative of other parts of the record. See In re O-S-G-, 24 I. N. Dec. 56, 60 (B.I.A. 2006) (rejecting a motion to reconsider because it merely reiterated facts and arguments already in the record). The passport and travel documents (Item 1) belonging to Huang's son were in her possession at the time of the IJ proceedings, and, while she did not obtain a passport for her daughter until six months after the IJ issued his decision, she offered the passports only to show that her children qualify as Chinese citizens, a fact that the government has never disputed. Both of the 2003 administrative decisions (Item 3c) as well as the Changle City poster (Item 3d) are not new because they were actually submitted to the IJ prior to the hearing on Huang's petition. The September 2, 2004 statement from the Fujian Foreign Affairs Office (Item 6), which states that China has no official policy requiring sterilization, and the documents from the FDFPA dated January 17, 2007 (Item 3a), which explain that foreign-born children are not counted under provincial birth control policy, merely reiterate what other documents in the record have stated. The website (Item 3b) indicating that Chinese citizens returning from abroad may not have children in China if they already have two children is also redundant of other record materials, and the content of Li Ping Ye's affidavit (Item 4) duplicates the in-laws' letter that was submitted to the IJ. The family-planning propaganda (Item 2) is not duplicative of other items in the record, and it may not have been in Huang's possession before, but it contains no reference to mandatory sterilization and therefore has no significant bearing on her asylum rights.

However, the BIA should have given more thorough consideration to the motion to remand based on the certification (Item 5) supposedly issued by Fuzhou family-planning authorities. That document, which is dated November 15, 2007, was unavailable when the IJ granted Huang asylum in April 2007, and, unlike any other evidence in the record, it purports to be an official proclamation that Huang will be required to undergo a sterilization procedure if she returns to China. The document says it is issued by family-planning authorities in her husband's hometown of Fuzhou, a city with which she has family connections and where she may return once she re-enters China. The BIA's own decision reversing the IJ's grant of asylum underscores the potential importance of the document, because that decision faulted Huang for failing to produce "individualized evidence showing that [she] has reason to fear being singled out for persecution." (R. at 5.) Thus, at least on its face, the certification appears to provide precisely the type of evidence that might alter the BIA's calculus when reviewing Huang's petition. If authentic, the certification would thus constitute new, material evidence that birth-control authorities in the city where Huang's family resides may target her for sterilization, if she returns to the jurisdiction within their enforcement authority. The BIA's dismissive treatment of the certification was inappropriate. See In re J-S-, 24 I. N. Dec. 520, 539 (Att'y Gen.2008) (indicating that asylum is available to individuals who have either been sterilized "or specifically threatened with such measures" (citation omitted)); accord Shao v. Mukasey, 546 F.3d 138, 156 (2d Cir. 2008) (observing that "some Chinese nationals with two or more children might be able to demonstrate a well-founded fear of future forced sterilization based on general population control policies without any evidence of past persecution or threats of persecution to them-selves as individuals").

The authenticity of the certification may well be open to question, and that question will require more than speculation to answer. See Lin v. Gonzales. 445 F.3d 127, 134 (2d Cir. 2006) (stating that the "conclusion that a petitioner's documents were fraudulent must be based on more than speculation and conjecture"). It appears, however, that numerous undisputedly authentic documents contradict the certification. However, authenticity is not for us to address in the first instance.

Accordingly, we will vacate the BIA's denial of the motion to remand with respect to the certification and will instruct the BIA to reconsider the motion as to that evidence. We express no opinion regarding the merit of the motion.

IV. Conclusion

We will vacate the BIA's order of removal and remand Huang's asylum petition to the BIA for consideration in accordance with this opinion. When considering the petition on remand, the BIA must also evaluate whether to reopen the record to permit further consideration of the purported certification from Fuzhou family-planning authorities indicating that Huang will be sterilized if she returns to China.