Ming He v. Eric Holder, Jr. , 749 F.3d 792 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING XIN HE, No. 09-73516
Petitioner,
Agency No.
v. A077-317-108
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 7, 2014—Pasadena, California
Filed April 17, 2014
Before: Stephen Reinhardt and Richard R. Clifton, Circuit
Judges, and Jennifer A. Dorsey, District Judge.*
Opinion by Judge Clifton;
Concurrence by Judge Reinhardt
*
The Honorable Jennifer A. Dorsey, District Judge for the District of
Nevada, sitting by designation.
2 HE V. HOLDER
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum and withholding of
removal to a citizen of China who asserted claims based on
his resistance to China’s family planning policies.
The panel held that a reasonable factfinder would not be
compelled to conclude that petitioner resisted China’s one-
child family planning policy where he married when under
age, had children earlier than China’s policy allowed, and
grudgingly complied with fines. Nor would a reasonable
factfinder be compelled to conclude that petitioner suffered
past persecution, taking into account his wife’s forced
abortion, where he did not show that he suffered substantial
economic disadvantage or other sufficient harm. The panel
held that petitioner failed to establish an objectively
reasonable fear of future persecution.
The panel denied petitioner’s request for remand for
further proceedings to gather and submit evidence in support
of his application under the higher standards announced in
Matter of J–S–, 24 I. & N. Dec. 520 (A.G. 2008), a decision
announced after petitioner filed his application for relief,
because he had ample time to ask the Board to remand for
additional factual development of his claim, but failed to do
so, and the particularized facts of the case did not support the
request for remand.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HE V. HOLDER 3
Judge Reinhardt concurred because when petitioner’s
appeal was before the Board, he did not request that it be
remanded to the IJ so that he could introduce evidence that
would comply with Matter of J-S-, and thus failed to exhaust
his administrative remedies. Had petitioner sought a remand
and had it been denied, Judge Reinhardt would have granted
the present petition with instructions that it be remanded to
the IJ.
COUNSEL
David Z. Su, Law Offices of David Z. Su, Monterey Park,
California, for Petitioner.
Aric A. Anderson (argued), Trial Attorney, Tony West,
Assistant Attorney General, Aviva L. Poczter, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
OPINION
CLIFTON, Circuit Judge:
Ming Xin He, a native and citizen of China, petitions for
review of the decision of the Board of Immigration Appeals
(“BIA”) that he is not entitled to asylum or withholding of
removal under the Immigration and Nationality Act (“INA”).
He sought asylum in the United States on the ground that his
wife had suffered a forcible abortion and had been sterilized.
4 HE V. HOLDER
We deny He’s petition for review. He is eligible for
asylum if he has been persecuted on account of resistance to
China’s one-child policy. Because a reasonable factfinder
would not be compelled to find that He either resisted the
policy or had suffered persecution, the petition must be
denied.
In addition, we deny He’s request that we grant his
petition and remand for further proceedings so that he may try
to gather and submit evidence in support of his application
under the higher standards announced in In re J–S–, 24 I. &
N. Dec. 520 (Att’y Gen. 2008). That decision was announced
after He’s application was originally filed, but he had ample
time to ask the BIA to remand for additional factual
development of his claim and failed to do so.
I. Background
He arrived in the United States as a stowaway on a ship
in February 2004. He was detained on entry and applied for
asylum and withholding of removal under the INA, and
withholding of removal under the Convention Against
Torture (“CAT”). See 8 U.S.C. §§ 1158(b)(1), 1231(b)(3);
8 C.F.R. § 208.16 (b)–(c).
At his hearing before the Immigration Judge (“IJ”), He
testified that he got married in 1988 and his first child was
born in January 1989. Because he was under the legal age for
marriage, he only obtained a marriage certificate about March
1991. He’s second child was born in December 1991, and he
was fined 40,000 renminbi—just under $5,000—for violating
China’s one-child policy. He’s wife conceived again and, in
1992, the child was aborted and his wife was sterilized by
Chinese authorities. He was told about the abortion when he
HE V. HOLDER 5
was working at a building site two days’ train journey from
his home. He testified that he only paid 16,800 out of the
40,000 renminbi fine, and that he spent the twelve years
between 1992 and 2004 in hiding because the government
was looking for him to pay the balance of the fine. He
borrowed $50,000 from a snakehead gang to be smuggled to
the United States, and he was working to pay off his travel
expenses. He testified that he was not able to leave China
before 2004 because he was working.
To be eligible for asylum, He was required to show that
he was a refugee, defined in 8 U.S.C. § 1101(a)(42) to be a
person who has suffered persecution or has a well-founded
fear of persecution on account of, among other things,
political opinion. The IJ originally rejected He’s claim
because he found that He was not credible. On appeal, the
BIA rejected the reasons given by the IJ for the adverse
credibility finding and reversed and remanded the case for a
new credibility determination. On remand, the IJ again found
that He was not credible.
He appealed again. This time the BIA did not address the
question of He’s credibility. Instead, it concluded that an
intervening change in the law rendered him ineligible for
relief even if his testimony were accepted as true. He’s claim
had originally been based on In re C–Y–Z–, 21 I. & N. Dec.
915 (BIA 1997) (en banc), which held that the spouse of a
person who had suffered a forcible abortion or sterilization
was automatically considered a refugee and eligible for
asylum. In May 2008, however—after He’s second IJ
hearing and decision but before the BIA rendered a decision
on the second appeal—the Attorney General handed down In
re J–S–, 24 I. & N. Dec. 520, which overruled C–Y–Z– and
established that spouses of victims of forced abortions or
6 HE V. HOLDER
sterilizations are not per se entitled to refugee status under
8 U.S.C. § 1101(a)(42). The Attorney General specifically
held that his decision applied to all cases pending before the
agency or on judicial review, such as He’s. J–S–, 24 I. & N.
Dec. at 537 n.10. The BIA was bound by the Attorney
General’s decision even though it contradicted prior Ninth
Circuit precedent. See Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 982–83 (2005).
As a result, the BIA held in He’s second appeal that,
under J–S–, He could not establish that he had been
persecuted based on his wife’s forced abortion and
sterilization. Rather, he would only be eligible for refugee
status if he (i) had resisted China’s coercive population
control program, (ii) had suffered or had a well-founded fear
that he would suffer persecution by the Chinese government,
and (iii) was able to show that the persecution was on account
of his resistance to the coercive population control program.
J–S–, 24 I. & N. Dec. at 542.
The BIA concluded that He had not described any
resistance to China’s family planning policies in his own right
that would make him eligible for asylum. Nor had he shown
that he suffered persecution or had objectively reasonable
grounds for fearing persecution: his fine did not constitute
economic persecution, he had avoided harm for over eleven
years after it was assessed, and his wife and two children had
remained in China unharmed during the intervening period.
He was ineligible for withholding of removal under the INA,
the BIA concluded, because an applicant for withholding
must sustain a higher burden than for asylum. See 8 U.S.C.
§ 1231(b)(3); Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003). Likewise, He had not met the standard for being
eligible for withholding of removal under the CAT, because
HE V. HOLDER 7
he had not shown that it was “more likely than not” that he
would face torture if he were returned to China. 8 C.F.R.
§ 1208.16(c)(2).
He filed a timely petition for review.1
II. Discussion
Our review of the BIA’s determination that an applicant
has not established eligibility for asylum is “highly
deferential.” Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.
2006). We will affirm the BIA’s decision if it is supported by
substantial evidence and may only grant a petition for review
“if the applicant shows that the evidence compels the
conclusion that the asylum decision was incorrect.” Id. We
are without jurisdiction to hear arguments that a petitioner has
not exhausted by raising and arguing in his brief before the
BIA. See 8 U.S.C. § 1252(d)(1); Abebe v. Mukasey, 554 F.3d
1203, 1208 (9th Cir. 2009) (en banc) (per curiam).
A. Substantial evidence supports the BIA’s decision
A reasonable factfinder would not be compelled to find
either that He offered resistance to China’s one-child policy
or that he suffered persecution. Therefore, He’s petition fails
on each independent ground.
1
He has not argued for review of the BIA’s decision that he is not
eligible for withholding under the CAT. Therefore, that argument is
waived and we do not address it. See Velasco-Cervantes v. Holder,
593 F.3d 975, 978 n.2 (9th Cir. 2010), overruled on other grounds by
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
8 HE V. HOLDER
1. Resistance
He argued to the BIA that he engaged in resistance to
China’s coercive family planning program by refusing to pay
all of the fine he was assessed. The BIA rejected this
argument on the ground that He’s partial payment of the fine
did not constitute “other resistance.” We agree. He testified
that he would have paid all the fine if he were able and that he
stowed away to the United States to earn the money to pay
the fine. Because He’s actions are a “grudging compliance”
rather than a “failure[ or] refusal[] to comply,” they do not
constitute resistance. In re M–F–W–, 24 I. & N. Dec. 633,
637–38 (BIA 2008).
Likewise, the facts that He got married when under age
and had children earlier than China’s policy allowed do not
compel a finding of resistance. He attempted to conceal his
marriage from the authorities and did not display the “overt”
and persistent defiance required for a showing of “other
resistance.” In re S–L–L–, 24 I. & N. Dec. 1, 10 (BIA 2006)
(en banc), overruled on other grounds by J–S–, 24 I. & N.
Dec. 520; see also Nai Yuan Jiang v. Holder, 611 F.3d 1086,
1094 (9th Cir. 2010).
2. Persecution
Nor would a reasonable factfinder be compelled to find
that He has demonstrated persecution. Persecution is an
“extreme concept.” Donchev v. Mukasey, 553 F.3d 1206,
1213 (9th Cir. 2009). Under J–S–, an asylum seeker may still
present his spouse’s forced abortion as “part” of “proof . . . of
persecution.” J–S–, 24 I. & N. Dec. at 535. We have
recognized, however, that he must show substantial evidence
HE V. HOLDER 9
of further persecution in support of his claims. Nai Yuan
Jiang, 611 F.3d at 1095.
He’s claim of further persecution relies primarily on
the economic deprivations that he has suffered. We have
defined economic persecution as a “substantial economic
disadvantage” that interferes with the applicant’s livelihood,
and a reasonable factfinder would not be compelled to find
that He has suffered such persecution. Gormley v. Ashcroft,
364 F.3d 1172, 1177 (9th Cir. 2004). He has not shown any
evidence of the effect of the fine on him, apart from that he
went into hiding to avoid paying it, and he was able to borrow
a much larger sum to travel to the United States. See id. at
1178 (rejecting the petitioners’ claim because “they have
presented no evidence that would compel a finding that their
experiences rise to the level of persecution”). Even though
He testified that he was forced into hiding between 1992 and
2004, he also testified and stated on his asylum application
that he was able to continue working during that period.
Thus, substantial evidence supports the BIA’s determination
that He did not suffer persecution. See, e.g., Nagoulko v. INS,
333 F.3d 1012, 1016 (9th Cir. 2003) (kindergarten teacher
who was fired but was then able to find work in a factory was
not subject to economic persecution).
Finally, He has not established that he has a well-founded
fear of future persecution that is independent of any claim of
past persecution. See 8 U.S.C. § 1101(a)(42).
B. No remand is necessary
At oral argument, counsel for He asked us to grant the
petition for review and remand the case to allow him to try to
gather more evidence of resistance and persecution that he
10 HE V. HOLDER
could use to establish a claim of asylum in light of J–S–. We
decline to do so.
We are without jurisdiction to consider this request. The
Attorney General had decided J–S– almost a year before He
filed his appellate brief to the BIA in March 2009. He had
the opportunity to seek a remand for further factfinding at
that point. He did not do so but instead argued that he was
still eligible for asylum even under J–S–. We may not
consider his new request to try to supplement the record.
We agree with the Fourth Circuit, which confronted the
same situation in Yi Ni v. Holder, 613 F.3d 415 (4th Cir.
2010). The court rejected the petitioner’s request for remand
because he had already had
ample opportunity to argue to the BIA that, in
light of the change in the applicable law, he
should be entitled to a remand in order to
present additional evidence. By declining to
raise such an argument before the BIA, Ni
failed to exhaust his administrative remedies
with regard to this issue, and we therefore
lack jurisdiction to entertain it.
Id. at 431.
In coming to this conclusion, the Fourth Circuit explicitly
distinguished the Seventh Circuit’s decision in Chen v.
Holder, 578 F.3d 515 (7th Cir. 2009). Chen sought asylum
on the basis of his wife’s forced abortion, but the IJ found
that he was not credible. He appealed to the BIA in March
2007, but the BIA dismissed his appeal after J–S– was
decided in May 2008, on the ground that he had not
HE V. HOLDER 11
established any resistance or persecution of his own. Id. at
516–17. The Seventh Circuit granted the petition and
remanded to permit Chen to supplement the record because
Chen had filed his brief before J–S– was decided. Here, on
the other hand, as in Yi Ni, He had an opportunity to seek
remand and may not wait until this point to make such a
request.
He’s request is unpersuasive in any event. In J–S–, the
Attorney General noted that “[w]hether the Board and the
courts should remand other cases for reconsideration in light
of this opinion depends on the particularized facts of those
cases,” and that
[w]here . . . a case that was decided
principally on the basis of the [pre-J–S–] rule
appears to involve credible evidence of threats
or action against the applicant that might
support relief under [J–S–], but that were not
adequately considered or developed before the
Immigration Judge, it may be an appropriate
exercise of the Board’s discretion to order a
remand.
J–S–, 24 I. & N. Dec. at 543 n.15. At oral argument, He’s
counsel was not able to suggest what evidence would help
him demonstrate either other resistance to China’s one-child
policy or persecution, let alone both. A request for a remand
now, more than seven years after the announcement of J–S–,
needs more than unspecific speculation that evidence might
be found. He was able to try to establish eligibility for
asylum through persecution on account of “other resistance”
to the one-child policy throughout the entire course of these
proceedings, and he had every incentive to submit all such
12 HE V. HOLDER
evidence into the record, even before J–S–. There is no
reason to believe that He would be able to supply new
evidence now. The particularized facts of this case do not
support He’s tardy request for remand.2
He’s request that we grant his petition and remand for
further proceedings is not warranted. If He does discover
new evidence that “was not available and could not have been
discovered or presented at the former hearing[s],” he may
move the BIA to reopen the case. 8 C.F.R. § 1003.2(c)(1).
The BIA may then exercise its discretion in deciding whether
or not to reopen. Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.
2
At least six other circuit courts have denied petitions for review in
similar circumstances. E.g., Jiao Hua Huang v. Holder, 620 F.3d 33, 38
(1st Cir. 2010) (upholding the BIA’s decision not to remand the case to
the IJ for more factfinding in light of J–S–); Ai Jing Jiang v. Holder,
353 F. App’x 500, 502 (2d Cir. 2009) (“[T]here is no merit to Jiang’s
argument that because Matter of J–S– was decided after the IJ’s decision,
the BIA erred by not remanding the case.”); Shan Gui Chen v. Att’y Gen.,
360 F. App’x 387, 392 (3d Cir. 2010) (per curiam) (“Although [Shan
Chen] argues that his case should be remanded for consideration of the
‘other resistance’ issue, he does not point to any evidence in the record
that could support such a finding, nor does he allege any facts, not
previously submitted, that could support such a finding.”); Peng Fei Ye v.
Holder, 542 F. App’x 247, 251 n.3 (4th Cir. 2013) (“To the extent
Petitioner argues he had inadequate opportunity to litigate this claim in
light of the change in the law wrought by Matter of J–S–, our review of
the record leads us to conclude otherwise.”); Shou Wei Jin v. Holder, 572
F.3d 392, 396 (7th Cir. 2009) (holding, in a case where the petitioner fled
China after his partner was forced to have an abortion, that “remand would
be futile in this case because Jin presented no evidence that he personally
suffered persecution as a result of China’s population control policies”);
Jie Sun v. U.S. Att’y Gen., 334 F. App’x 977, 979 n.2 (11th Cir. 2009) (per
curiam) (“[T]here is nothing in the record to indicate what other evidence
of resistance Sun could have offered, nor does Sun say.”).
HE V. HOLDER 13
2002). On the present facts, however, we have no reason to
grant the petition.
Petition for review DENIED.
REINHARDT, Circuit Judge, concurring.
I concur because when his appeal was before the BIA, He
did not request that it be remanded to the IJ so that he could
introduce evidence that would comply with In re J-S-. Thus,
he failed to exhaust his administrative remedies. Had He
sought a remand and had it been denied, I would have granted
the present petition with instructions that it be remanded to
the IJ.