NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 04 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
QIAOLI ZHENG, No. 12-73436
Petitioner, Agency No. A075-822-495
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,
Respondent.
QIAOLI ZHENG, No. 13-71958
Petitioner, Agency No. A075-822-495
v.
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 5, 2016
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
San Francisco, California
Before: WALLACE, KOZINSKI and O’SCANNLAIN, Circuit Judges.
1. “[T]o obtain judicial reversal of the BIA’s determination, [a petitioner]
must show that the evidence he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.” INS v. Elias-
Zacarias, 502 U.S. 478, 483–84 (1992). A withholding-of-removal petition must
establish that it is “more likely than not that the alien would be subject to
persecution.” INS v. Stevic, 467 U.S. 407, 429–30 (1984). The record here
doesn’t compel a finding that it is more likely than not Zheng would be persecuted
if removed to China or that the Chinese government would torture her or acquiesce
in her torture. Zheng presented two anecdotal instances of a forced sterilization
and a forced abortion. But the record indicates that in most instances violations of
China’s one-child policy result in financial penalties. Zheng didn’t produce
evidence showing that any such fees would result in more than a “moderate
economic impact.” In re J-W-S, 24 I. & N. Dec. 185, 191 (BIA 2007). Thus the
Board of Immigration Appeals didn’t commit reversible error in denying Zheng’s
application for withholding of removal.
page 3
2. A motion to remand is subject to the same requirements as a motion to
reopen. Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987). “A motion to
reopen proceedings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have
been discovered or presented at the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1).
The BIA didn’t abuse its discretion in determining that the documents Zheng
presented were previously available. Most of these documents predate Zheng’s
immigration court hearing. The one new document, the 2010 Human Rights
Report, doesn’t provide any additional, material information that wasn’t already
reflected in the 2009 Human Rights Report.
3. Even if counsel had performed differently and submitted the additional
evidence presented by Zheng in her motion to reopen, the additional evidence
wouldn’t have undermined the BIA’s original conclusion. Few pages in these
additional documents are related directly to Zheng’s case. Only a handful address
whether U.S. born children are counted toward the one-child policy. Moreover,
even these documents assert that violations of the one-child policy result in fines,
and advise sterilization only for the couple that “decide[s] not to give birth to more
children.” These additional documents fail to show it is more likely than not
page 4
Zheng would be forcefully sterilized. Because Zheng can’t establish prejudice
with this additional evidence, she couldn’t have prevailed in her ineffective
assistance of counsel claim. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th
Cir. 2003). Therefore, the BIA didn’t abuse its discretion in denying the motion to
reopen.
DENIED.