Chuan Shi v. Jefferson Sessions , 692 F. App'x 954 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUAN WU SHI, No. 13-70787
Petitioner, Agency No. A087-589-114
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 7, 2017**
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and FABER,*** District Judge.
Petitioner Chuan Wu Shi (“Petitioner” or “Mr. Shi”) is a native and citizen
of China who entered the United States without admission or parole on June 28,
*
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 David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
2009. At his hearing before an immigration judge, Petitioner conceded
removability, but filed a defensive application for asylum and withholding of
removal based on the fact that the Chinese authorities forced his wife to undergo an
abortion and sterilization. The Immigration Judge (“IJ”) denied his claim for
asylum and withholding of removal. Subsequently, the Board of Immigration
Appeals (“BIA” or “Board”) dismissed Mr. Shi’s appeal. To qualify for asylum
relief,1 Petitioner must show that he suffered past persecution “on account of race,
religion, nationality, membership in a particular social group, or political opinion,”
or has a well-founded fear of future persecution based on his own resistance to
China’s family-planning policy.2 8 U.S.C. § 1101(a)(42)(A); see Jiang v. Holder,
611 F.3d 1086, 1094 (9th Cir. 2010).
We review the agency’s factual findings under the substantial evidence
standard, which maintains that “the administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 742
(9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707
1
Because we hold that Petitioner is ineligible for asylum relief, he cannot
satisfy the more demanding standard for withholding of removal. See Lanza v.
Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004).
2
Mr. Shi declined to request protection under the Convention Against
Torture (“CAT”).
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F.3d 1081 (9th Cir. 2013). We review de novo questions of law. See Wakkary v.
Holder, 558 F.3d 1049, 1056 (9th Cir. 2009).
The onus rests on the asylum applicant to establish either past persecution
and a presumption of future persecution, or a well-founded fear of future
persecution. See, e.g., Halim v. Holder, 590 F.3d 971, 975–76 (9th Cir. 2009);
Salazar-Paucar v. I.N.S., 281 F.3d 1069, 1073–74 (9th Cir.), opinion amended on
denial of reh’g, 290 F.3d 964 (9th Cir. 2002). The spouse of a victim of a forced
abortion or sterilization procedure cannot rely exclusively on the fact of the forced
abortion or sterilization in order to obtain asylum. See Jiang, 611 F.3d at 1091–93
(9th Cir. 2010). Instead, the spouse must establish past persecution or a well-
founded fear of persecution on account of “other resistance” to a coercive
population control program or any other statutorily-protected ground. See id. at
1093–95. The forced abortion imposed on his wife “may be a part” of an asylum
applicant’s “other resistance” claim but it will not, by itself, suffice. Matter of
J–S–, 24 I. & N. Dec. 520, 535 (BIA 2008); see also He v. Holder, 749 F.3d 792,
796 (9th Cir. 2014); Jiang, 611 F.3d at 1093–97.
Mr. Shi concedes that he was not present when his wife was apprehended
and subjected to a forcible abortion, and later to sterilization; he was never
detained or physically harmed; he experienced no personal mistreatment; and he
offered no evidence that Chinese authorities were seeking to arrest him after 2007.
3
Petitioner also offered no evidence to demonstrate that he resisted China’s coercive
family planning policy. Although his wife’s forced abortion and sterilization
remains relevant to whether Mr. Shi suffered past persecution, Mr. Shi must
demonstrate that he personally experienced the requisite level of harm based on his
own resistance to China’s family planning policy. Other than his testimony that the
police damaged possessions in his home while searching for him, Mr. Shi provided
no evidence to show that he was harmed, or that he personally suffered some injury
because of what happened to his wife.
Additionally, Mr. Shi failed to establish his own resistance to the population
control policies. Certainly, Petitioner claims that he was opposed to his wife’s
abortion and sterilization. Yet he failed to communicate his opposition to the
population control officials since he was not present when his wife was subject to
the abortion and sterilization. Similarly, the removal of Petitioner’s wife’s intra-
uterine device (“IUD”) and Petitioner’s plan, with which he did not follow
through, to hide his wife during her third trimester, do not collectively or in any
other combination establish his resistance. The purpose of removing the IUD was
to protect his wife’s health, not necessarily to protest China’s population control
policy, even though the removal allowed his wife to conceive the couple’s third
child.
Given “the totality of the circumstances,” Guo v. Ashcroft, 361 F.3d 1194,
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1203 (9th Cir. 2004), and “the cumulative effect of all the incidents [] [P]etitioner
has suffered,” Korablina v. I.N.S., 158 F.3d 1038, 1044 (9th Cir. 1998), including
his wife’s forced abortion and sterilization, “a reasonable fact-finder would [not]
be compelled to conclude” that Mr. Shi was persecuted. Khourassany v. I.N.S., 208
F.3d 1096, 1100 (9th Cir. 2000). Accordingly, we hold that substantial evidence
supports the BIA’s finding.
PETITION FOR REVIEW DENIED.
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