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He v. Holder

United States Court of Appeals, Ninth Circuit

April 17, 2014

MING XIN HE, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued and Submitted, Pasadena, California January 7, 2014

Page 793

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-317-108.

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.

Before: Stephen Reinhardt and Richard R. Clifton, Circuit Judges, and Jennifer A. Dorsey, District Judge.[*] Concurrence by Judge Reinhardt.

OPINION

Page 794

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.

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 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. ยง 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 ...


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