Yanming Xiong v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANMING XIONG, No. 12-73898
Petitioner, Agency No. A099-369-838
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2016**
Pasadena, California
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
Yanming Xiong petitions for review of the Board of Immigration Appeals’
dismissal of his appeal. We have jurisdiction under 8 U.S.C. § 1252. We deny the
petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Xiong argues that the BIA erred in finding that he was not persecuted in
China on account of his violation of the family planning laws.
Xiong testified that his wife was forced to have an abortion when she
became pregnant with their second child. However, the spouse of someone who is
forced to have an abortion is not necessarily entitled to asylum. Jiang v. Holder,
611 F.3d 1086, 1094 (9th Cir. 2010). In addition to the abortion, the spouse must
show that he engaged in “other resistance” to his country’s coercive population
control laws. Id. The spouse must also show that he suffered some persecution
beyond the abortion itself. Id.We review as a matter of law whether Xiong’s actions constitute “other
resistance.” See id. at 1093–94. We review for substantial evidence the BIA’s
determination that Xiong did not suffer past persecution, and does not have a well-
founded fear of future persecution. See id. at 1093, 1095–97.
Here, Xiong did not show that he engaged in “other resistance.” Xiong
admitted that the pregnancy was not intentional. While Xiong testified that he
planned to hide the pregnancy from the government and keep the child, he did not
testify to any acts of resistance that he undertook.
Xiong also failed to show past persecution on account of his wife’s
pregnancy. His hospitalization for high blood pressure is not sufficient. The
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government did not intentionally inflict this high blood pressure on Xiong.
Substantial evidence supported the finding that Xiong’s high blood pressure did
not rise to the level of persecution.
Substantial evidence also supported the BIA’s determination that Xiong
failed to show an independent well-founded fear of future persecution. See 8
C.F.R. § 1208.13(b)(2). The government took no intentional actions against Xiong
after the forced abortion. Xiong’s wife, who was the one actually forced to have
the abortion, currently lives in China without problem. Nothing in the record
suggests that Xiong would now be persecuted for this pregnancy if he returned to
China.
Xiong also argues that the BIA erred in affirming the IJ’s adverse credibility
determination with regard to his forced relocation claim. We review adverse
credibility determinations for substantial evidence. Lai v. Holder, 773 F.3d 966,
970 (9th Cir. 2014). We will only reverse if the record compels the conclusion that
the adverse credibility determination was incorrect. 8 U.S.C. § 1252(b)(4)(B);
Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008).
When reviewing adverse credibility determinations, we look first to the
reasons given by the BIA. Lai, 773 F.3d at 970. We then look to the IJ’s oral
decision for an explanation of those reasons. Id.
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The BIA gave two reasons for affirming the adverse credibility
determination: 1) Xiong testified inconsistently about whether he was beaten
during both his interrogations, or only during the second interrogation; and 2)
Xiong’s written application stated that he was offered 6,000 RMB per square meter
for his apartment when he was forced to relocate, but at the hearing Xiong testified
that he was offered 2,600 RMB per square meter.
Both reasons were supported by substantial evidence. Whether Xiong was
beaten once or twice is not a “trivial” inconsistency. See Shrestha v. Holder, 590
F.3d 1034, 1043–44 (9th Cir. 2010) (holding that an IJ may base an adverse
credibility determination on a “minor” inconsistency, but not a “trivial” one). The
number of beatings is highly relevant to whether Xiong’s mistreatment rose to the
level of persecution. Xiong’s explanation for this inconsistency was that he was
uneducated. See id. at 1044 (holding that an IJ must consider an applicant’s
explanation for any inconsistencies). Even an uneducated person would likely
remember how many times he was beaten. The IJ and BIA did not err in finding
this explanation unconvincing.
The second inconsistency was also not “trivial.” Xiong claimed that he was
beaten after protesting the inadequate compensation he was offered for his
apartment. It was therefore very relevant how much compensation Xiong was
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offered. Xiong’s explanation for this inconsistency was that he was initially
offered 6,000 RMB per square meter, if he moved out by a certain date. When he
stayed past that date, the compensation offered went down. However, Xiong was
specifically asked on cross-examination whether he was ever offered a different
amount than 2,600 RMB per square meter, and he said no. The IJ and BIA did not
err in finding this explanation unpersuasive.
The record does not compel the conclusion that the adverse credibility
determination was incorrect. The BIA did not err in denying Xiong’s applications
for asylum and withholding of removal based on his forced relocation.
DENIED.
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