FILED
NOT FOR PUBLICATION OCT 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YANSHAN YU; SIMEI YANG; CHIE No. 09-73324
HONG YEE YANG; KAWAH YEE
YANG, Agency Nos. A096-151-843
A096-151-844
Petitioners, A096-151-845
A096-151-846
v.
ERIC H. HOLDER, JR., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 8, 2010 **
Portland, Oregon
Before: TASHIMA, PAEZ, and CLIFTON, Circuit Judges.
Petitioners seek review of an order of the Board of Immigration Appeals
(“BIA”) dismissing an appeal from an order of the Immigration Judge (“IJ”) that
found Petitioners removable, denied their applications for asylum and withholding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
of removal, and granted their request for voluntary departure. The IJ’s decision
incorporated the factual findings from an earlier decision, the BIA’s affirmance of
which was previously vacated. We have jurisdiction under 8 U.S.C. § 1252. We
conclude that the evidence does not compel the conclusion that the determinations
of the BIA and IJ were incorrect. See Gu v. Gonzales, 454 F.3d 1014, 1018 (9th
Cir. 2006). We therefore deny the petition for review.
1. Petitioners have failed to establish that their mistreatment in
Colombia, even assuming that it amounts to persecution, is “on account of one of
the five statutorily protected grounds.” Deloso v. Ashcroft, 393 F.3d 858, 864 (9th
Cir. 2005); see also 8 U.S.C. § 1101(a)(42). Petitioners have not presented either
direct or “compelling circumstantial” evidence, Gafoor v. INS, 231 F.3d 645, 650
(9th Cir. 2000), that racial animus motivated the robberies of lead Petitioner Yu’s
restaurants or the kidnaping of his son. In this court’s prior holdings granting
asylum in cases of mixed-motive persecution, the persecutors had generally made
verbal statements clearly and directly showing that they were motivated by their
victim’s race. See, e.g., Sinha v. Holder, 564 F.3d 1015, 1018-19 (9th Cir. 2009);
cf. Sangha v. INS, 103 F.3d 1482, 1490 (9th Cir. 1997) (“[W]e have found
persecution on account of political opinion when the persecutors say they are
acting because of the victim’s political beliefs . . . . [or] when there is no other
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logical reason for the persecution . . . .” (citations omitted)). Such statements are
absent from the record here. The IJ and BIA logically concluded that any
mistreatment was solely motivated by monetary gain.
The record also does not compel the conclusion that the social group of
Chinese-Colombian businessmen is more likely to be targeted than the more
general group of middle-class businessmen in Colombia. Finally, although it is
inarguable that harm has been done to Petitioners’ entire family, this fact does not
establish that harm was done to any of the family’s members because of their
family membership.
2. The IJ’s and BIA’s finding that Petitioners Yanshin Yu and Simei
Yang were firmly resettled in Colombia is supported by substantial evidence. Yu’s
and Yang’s immigrant residency permits constitute “offer[s] of permanent resident
status” in Colombia. See Maharaj v. Gonzales, 450 F.3d 961, 972 (9th Cir. 2006);
8 C.F.R. § 1208.15. The fact that they let their residency permits lapse does not
affect the determination of firm resettlement. See Vang v. INS, 146 F.3d 1114,
1116-17 (9th Cir. 1998). The conditions of Petitioners’ residence in Colombia
were not “substantially and consciously restricted by the authority of” that country.
8 C.F.R. § 1208.15. Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999), is
inapposite here, because the petitioner in that case had not been offered any sort of
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official status in Armenia and the conditions of his residence there were evaluated
under the very different standard applicable to a discretionary denial of asylum
pursuant to a now-defunct version of 8 C.F.R. § 208.13 (whether he would face
any form of “harm or persecution” in the country of resettlement). See Andriasian,
180 F.3d at 1039-40, 1044.
Because we agree that Petitioners were firmly resettled in Colombia, they
are ineligible for asylum from China. See 8 U.S.C. § 1158(b)(2)(A)(vi).
3. Firm resettlement, however, is not a bar to withholding of removal,
see Siong v. INS, 376 F.3d 1030, 1040-41 (9th Cir. 2004), but the BIA and IJ are
correct that Petitioners have failed to show that “it is more likely than not” that
they will be subject to mandatory sterilization if they return to China. See Al-
Harbi v. INS, 242 F.3d 882, 888-89 (9th Cir. 2001) (internal quotation marks
omitted). The record indicates that forced sterilization of parents of over-quota
children born abroad is rare in China, and there is no direct or specific evidence
indicating a probability of forced sterilization in this case.
The petition for review is DENIED.
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