Jisheng Xiao v. Holder , 349 F. App'x 909 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 19, 2009
    No. 08-61133                      Charles R. Fulbruge III
    Summary Calendar                            Clerk
    JISHENG XIAO
    Petitioner
    v.
    ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL
    Respondent
    Petition for Review of an Order of the Board of Immigration Appeals
    No. A94 907 040
    Before DAVIS, SMITH, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Jisheng Xiao, an illegal immigrant from China, challenges the denial of his
    application for withholding of removal and protection under the Convention
    Against Torture (“CAT”) by the Board of Immigration Appeals (“BIA”). Xiao
    alleges that he will be forced to undergo a sterilization procedure upon his return
    to China because he fathered two children in the United States, and thus the
    BIA erred in denying his application.
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    No. 08-61133
    We review the BIA’s denial of an application for withholding of removal
    and protection under CAT under the substantial evidence test. Zamora-Morel
    v. INS, 
    905 F.2d 833
    , 838 (5th Cir. 1990). Under that standard of review,
    reversal is improper unless we decide “not only that the evidence supports a
    contrary conclusion, but also that the evidence compels it.” Zhao v. Gonzales,
    
    404 F.3d 295
    , 306 (5th Cir. 2005) (citing INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481
    n.1 (1992)).
    Under 
    8 U.S.C. § 1231
    (b)(3)(B)(i), Xiao is entitled to withholding his
    removal if he can prove that his life or freedom would be threatened in China
    because of his race, religion, nationality, membership in a particular social
    group, or political opinion. Under 
    8 C.F.R. § 1208.16
    (b)(2), Xiao is entitled to
    protection under CAT if he can establish that it is more likely than not that he
    will be persecuted in China on account of his race, religion, nationality,
    membership in a particular social group, or political opinion.
    In this case, Xiao offered no support for his assertion that he would be
    forcibly sterilized upon returning to China. The report by the U.S. Department
    of State entitled “China: Profile of Asylum Claims and Country Conditions” that
    Xiao offered into evidence highlights the general population and family planning
    laws in China, but as the Population and Family Planning Regulations of Fujian
    Province note, the penalty for not meeting the population and family planning
    regulations is a social maintenance fee, not sterilization. See Administrative
    Record (A.R.) at 353–56.     Xiao’s testimony before the Immigration Judge
    establishes Xiao’s fear in returning to China, but his testimony provides no
    evidence that his life or freedom would be threatened upon his return to China.
    See A.R. 160–78. Based on the insufficient evidence presented by Xiao, it is clear
    that the BIA did not err in denying Xiao’s application for withholding of removal
    and protection under CAT.
    2
    No. 08-61133
    CONCLUSION
    For the above reasons, we deny the petitioner for review.
    3
    

Document Info

Docket Number: 08-61133

Citation Numbers: 349 F. App'x 909

Judges: Davis, Dennis, Per Curiam, Smith

Filed Date: 10/19/2009

Precedential Status: Non-Precedential

Modified Date: 8/2/2023