Chungzhong Pan v. Holder , 383 F. App'x 648 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 11 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
CHUNGZHONG PAN, No. 07-71321
08-70620
Petitioner,
Agency No. A096-059-321
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
**
Submitted May 25, 2010
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
In these consolidated petitions, Chungzhong Pan, a native and citizen of
China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
*
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).
asylum and withholding of removal application in petition No. 07-71321 and the
BIA’s order denying his motion to reopen removal proceedings in petition No.
08-70620. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the BIA’s denial of asylum and withholding of removal. See
INS v. Elias-Zacarias, 502 U.S. 478, 481 fn.1 (1992). We review for abuse of
discretion the denial of a motion to reopen, INS v. Doherty, 502 U.S 314, 323, 324
(1992). We dismiss in part and deny in part the petition for review in No. 07-
71321. We deny the petition for review in No. 08-70620.
As to No. 07-71321, we lack jurisdiction to review Pan’s claims that the IJ
failed to consider evidence of his persecution, and abused his discretion in denying
his request for a continuance because he did not exhaust them. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
We decline to address Pan’s CAT contention because it was not addressed by
the BIA. See Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004) (“we must
decide whether to grant or deny the petition for review based on the Board’s
reasoning rather than our own independent analysis of the record”). To the extent
the BIA erred by failing to address Pan’s eligibility for CAT relief, the contention
is waived. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).
2 07-71321
Substantial evidence supports the BIA’s conclusion that Pan failed to
establish past persecution or a well-founded fear of future persecution on account
of a protected ground based on his testimony that government cadres beat him after
his brother injured someone and his family failed to pay the injury settlement. See
Elias-Zacarias, 502 U.S. at 481-83. Substantial evidence also supports the BIA’s
determination that Pan does not have a well-founded fear of future persecution
based on China’s one child policy because Pan testified he did not know of any
problems he would face if he returned to China with more than one child. See
Zhao v. Mukasey, 540 F.3d 1027, 1029-30 (9th Cir. 2008) (subjective fear
requirement met when petitioner testified credibly to having such fear).
Accordingly, his asylum and withholding of removal claims fail.
As to No. 08-70620, the BIA did not abuse its discretion in denying Pan’s
motion to reopen based on his violation of China’s one child policy because Pan’s
evidence of multiple children was previously available and the country report
evidence that women in Pan’s municipality are subject to sterilization for having
more than one child is not material to Pan as a man. See Doherty, 502 U.S at 324
(the moving party must show that previously unavailable material evidence could
not have been discovered or presented at the former hearing).
3 07-71321
No. 07-71321: PETITION FOR REVIEW DISMISSED in part;
DENIED in part.
No. 08-70620: PETITION FOR REVIEW DENIED.
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