FILED
NOT FOR PUBLICATION
MAY 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HONG WU NI, No. 12-72276
Petitioner, Agency No. A089-978-715
v. MEMORANDUM*
LORETTA E. LYNCH , Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 22, 2015
Pasadena, California
Before: RAWLINSON and NGUYEN, Circuit Judges and PONSOR,** Senior
District Judge.
Petitioner Hong Wu Ni, a native and citizen of the People’s Republic of
China, seeks review of a final removal order issued by the Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
Appeals (“BIA”) on June 22, 2012. We have jurisdiction under section 242 of the
Immigration and Nationality Act, 8 U.S.C. § 1252 (“the Act”).
For the reasons set forth below, we grant the petition in part, and we remand
to the BIA for reconsideration in light of our decisions in Nai Yuan Jiang v.
Holder, 611 F.3d 1086 (9th Cir. 2010), which petitioner’s attorney failed to cite
and the BIA did not address.
Two preliminary issues may be disposed of quickly.
First, the claims for review of the BIA’s denial of Ni’s application for
withholding of removal under section 241(b)(3) of the Act, or for protection under
the Convention Against Torture, will be dismissed. Ni raised no argument in his
opening brief asserting error in either of these decisions. These claims have
therefore been waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.
1996); see Fed. R. App. P. 28(a)(8)(a).
Second, any argument asserting error by the Immigration Judge in his
negative assessment of Ni’s credibility is moot; the BIA assumed the petitioner’s
credibility.
Ni’s central argument, however -- that he is eligible for asylum because he has
suffered persecution based on his resistance to China’s coercive population control
program -- warrants further review by the BIA in light of Jiang.
2
In Jiang, the court addressed an application for asylum based on facts
strikingly similar to those here and found that Jiang had established past
persecution by exhibiting “other resistance” to China’s coercive population control
program as recognized in Matter of J-S-, 24 I & N. Dec. 520 (Att’y Gen. 2008).
Jiang, 611 F.3d at 1095-96. There, as here, petitioner and his wife were not
permitted to marry officially due to their ages, the couple lived together in
violation of the law, the women in both cases were involuntarily removed from
their homes, the men were forcibly restrained to prevent them from interfering with
their wives’ removal, the women were compelled immediately upon their removal
to undergo abortions, and both couples were assessed and paid fines for violating
the law. Id. at 1089-90.
The facts of the case now before us appear to be more serious than those
presented in Jiang. Here, petitioner physically resisted the officers at the time they
were taking his wife away and was beaten both during and after her removal.
We now remand to the BIA to reconsider, in light of Jiang, whether
petitioner engaged in “other resistance” to China’s coercive population control
program and, if so, whether as a result of that resistance he suffered past
persecution or has a well-founded fear of future persecution based on his
3
resistance. For the reasons set forth above, we dismiss petitioner’s claims for
withholding of removal or for protection under the under the CAT.
PETITION DISMISSED in part and GRANTED in part; REMANDED.
4
FILED
Ni v. Lynch
MAY 12 2016
No. 12-72276
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent. In my view, the events recounted by Hong Wu Ni do
not rise to the level of persecution. I do not agree with the majority that the facts
of this case are similar to those we considered in Nai Yuan Jiang v. Holder, 611
F.3d 1086 (9th Cir. 2010). In Jiang, we referenced petitioner’s “persistent defiance
of the coercive population control policy,” even after the forced abortion. Id. at
1094-1095. In contrast, Ni presented no evidence of post-abortion defiance on his
part.
Since our decision in Jiang, we have clarified that a petitioner who seeks
asylum due to his spouse’s forced abortion, “must show substantial evidence of
further persecution in support of his claims.” He v. Holder, 749 F.3d 792, 796 (9th
Cir. 2014). Because Ni presented no “evidence of further persecution,” id., the
BIA properly dismissed his appeal. As in He, no remand is warranted, considering
Ni’s failure to present sufficient evidence of persecution. See id. at 796-98.