Xinfeng Li v. Loretta E. Lynch

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
XINFENG LI, No. 14-71971

Petitioner, Agency No. A088-124-664

v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted November 9, 2016**
Pasadena, California

Before: BERZON and NGUYEN, Circuit Judges, and ZOUHARY,*** District
Judge.

Xinfeng Li, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing his appeal of the denial of his

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252

and review the agency’s factual findings for substantial evidence. Zehatye v.

Gonzales, 453 F.3d 1182, 1184–85 (9th Cir. 2006). We deny the petition.

Substantial evidence supports the BIA’s determination that, considering the totality

of the circumstances, Li failed to demonstrate harm rising to the level of

persecution.

1. Spouses of individuals forced to undergo abortions are not presumptively

eligible for refugee status, but they may qualify for political asylum if they have

been persecuted “for other resistance to a coercive population control program.” 8

U.S.C. § 1101(a)(42); Jiang v. Holder, 611 F.3d 1086, 1092–97 (9th Cir. 2010).

In Jiang, this Court held that an asylum applicant, whose girlfriend was

subjected to a forced abortion, established such persecution. Officials detained

Jiang until the abortion was complete and released him only upon payment of a

heavy fine. Jiang was expelled from school due to his romantic relationship, which

was legally prohibited, but he still attempted to marry his girlfriend in a traditional

ceremony. When officials disrupted the wedding and attempted to arrest Jiang,

both he and his girlfriend went into hiding. Id. at 1094–97.

2
By comparison, Li’s experience was considerably less extreme. Unlike

Jiang, Li has not demonstrated any long-term adverse impact due to government

action. Li was beaten when he tried to prevent family-planning officials from

taking his wife to undergo the abortion, but a single incident is not typically

sufficient to constitute persecution. See Halim v. Holder, 590 F.3d 971, 975–76

(9th Cir. 2009) (holding a one-time beating by a mob, combined with other

incidents of harassment, did not amount to past persecution). Though Li’s wages

were cut and he lost his factory job due to the family-planning violation, any

economic deprivation was not substantial because he found a better-paying job as a

taxi driver. Cf. He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014) (finding no

economic persecution where the petitioner was fined for a family planning

violation and went into hiding to avoid paying the fine in full, but was able to

continue working). Moreover, Li and his family remained in China, apparently

free from harassment, for eight years following the forced abortion, and Li left

China and returned without incident before coming to the United States.

Li’s inability to have additional children could be considered a long-term

adverse impact. Li’s wife was forced to wear an IUD for the remainder of her

childbearing years -- arguably analogous to a forced sterilization. But a spouse’s

forced sterilization alone is insufficient for a derivative persecution claim. See

3
Jiang, 611 F.3d at 1093–94. Further, Li has been in the United States for the past

nine years, which also prevented him from having children with his wife who

remains in China.

Substantial evidence also supports the BIA’s determination that Li failed to

demonstrate a well-founded fear of future persecution, independent of his claim of

past persecution. See He, 749 F.3d at 796. Thus, his asylum claim fails.

2. Because Li failed to establish eligibility for asylum, he necessarily cannot

meet the more stringent standard for withholding of removal. See Zehatye, 453

F.3d at 1190.

3. Finally, substantial evidence supports the BIA’s denial of CAT relief

because Li failed to show it is more likely than not that he would be tortured by or

with the consent or acquiescence of the Chinese government if returned. See

Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

PETITION FOR REVIEW DENIED.