FILED
NOT FOR PUBLICATION MAR 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIA DI ZHOU, No. 09-70630
Petitioner, Agency No. A079-760-721
v.
MEMORANDUM AND ORDER *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 8, 2013
San Francisco, California
Submission Vacated October 16, 2013
Resubmitted March 3, 2014
Before: N.R. SMITH and NGUYEN, Circuit Judges, and QUIST, Senior District
Judge.**
Xia Di Zhou, a native and citizen of the People’s Republic of China,
petitions for review of a decision of the Board of Immigration Appeals (“BIA”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
which affirmed an immigration judge’s (“IJ”) denial of her application for asylum,
withholding of removal, and protection under the Convention Against Torture. We
have jurisdiction under 8 U.S.C. § 1252. We deny the petition.
1. We previously remanded this matter for the BIA to reconsider whether
“Zhou’s fear of forced gynecological examinations and possible IUD insertion . . .
create a well-founded fear of future persecution” in light of Li v. Ashcroft, 356 F.3d
1153, 1158 (9th Cir. 2004) (en banc), and Chen v. Ashcroft, 362 F.3d 611, 616 (9th
Cir. 2004). Xia Di Zhou v. Gonzales, 137 Fed. Appx. 51, 52 (9th Cir. 2005). The
IJ and the BIA did not exceed the scope of the remand order by asking Zhou to
submit updated evidence regarding current family planning practices and policies
in China, particularly as they relate to Zhou’s village, and concerning possible
internal relocation. Such evidence, if any, would have related directly to the issue
on remand—whether Zhou’s fear of future persecution was objectively reasonable.
See Wakkary v. Holder, 558 F.3d 1049, 1052 (9th Cir. 2009) (stating that in order
for a fear to be “well-founded,” it must be “subjectively genuine” and “objectively
reasonable”). Therefore, because the BIA did not revisit its prior positive
credibility finding, it neither violated the doctrine of the law of the case nor the rule
of the mandate. United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007)
(defining the two doctrines).
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2. Substantial evidence supports the BIA’s determination that Zhou failed to
establish an objectively reasonable fear of future persecution. Zhou failed to
present any evidence that the local government in her village continues to enforce
the practice of forcing women to submit to gynecological examination. Further,
the BIA properly found that Zhou’s circumstances are distinguishable from those
in Li v. Ashcroft, 356 F.3d 1153, and Chen v. Ashcroft, 362 F.3d 611.
3. Respondent’s motion to strike Addendums 1 through 5 of Zhou’s reply
brief and any related arguments based on these documents is DENIED.
PETITION DENIED.
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