Jisheng Xiao v. Holder ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2009
No. 08-61133 Charles R. Fulbruge III
Summary Calendar Clerk
JISHENG XIAO
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the Board of Immigration Appeals
No. A94 907 040
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jisheng Xiao, an illegal immigrant from China, challenges the denial of his
application for withholding of removal and protection under the Convention
Against Torture (“CAT”) by the Board of Immigration Appeals (“BIA”). Xiao
alleges that he will be forced to undergo a sterilization procedure upon his return
to China because he fathered two children in the United States, and thus the
BIA erred in denying his application.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-61133
We review the BIA’s denial of an application for withholding of removal
and protection under CAT under the substantial evidence test. Zamora-Morel
v. INS, 905 F.2d 833, 838 (5th Cir. 1990). Under that standard of review,
reversal is improper unless we decide “not only that the evidence supports a
contrary conclusion, but also that the evidence compels it.” Zhao v. Gonzales,
404 F.3d 295, 306 (5th Cir. 2005) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1 (1992)).
Under 8 U.S.C. § 1231(b)(3)(B)(i), Xiao is entitled to withholding his
removal if he can prove that his life or freedom would be threatened in China
because of his race, religion, nationality, membership in a particular social
group, or political opinion. Under 8 C.F.R. § 1208.16(b)(2), Xiao is entitled to
protection under CAT if he can establish that it is more likely than not that he
will be persecuted in China on account of his race, religion, nationality,
membership in a particular social group, or political opinion.
In this case, Xiao offered no support for his assertion that he would be
forcibly sterilized upon returning to China. The report by the U.S. Department
of State entitled “China: Profile of Asylum Claims and Country Conditions” that
Xiao offered into evidence highlights the general population and family planning
laws in China, but as the Population and Family Planning Regulations of Fujian
Province note, the penalty for not meeting the population and family planning
regulations is a social maintenance fee, not sterilization. See Administrative
Record (A.R.) at 353–56. Xiao’s testimony before the Immigration Judge
establishes Xiao’s fear in returning to China, but his testimony provides no
evidence that his life or freedom would be threatened upon his return to China.
See A.R. 160–78. Based on the insufficient evidence presented by Xiao, it is clear
that the BIA did not err in denying Xiao’s application for withholding of removal
and protection under CAT.
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No. 08-61133
CONCLUSION
For the above reasons, we deny the petitioner for review.
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