Xing Gao v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
XING HUI GAO, No. 10-72771
Petitioner, Agency No. A088-293-655
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2014**
Pasadena, California
Before: SILVERMAN and BEA, Circuit Judges, and BELL, District Judge.***
Xing Hui Gao, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ decision affirming the immigration judge’s denial
*
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).
***
The Honorable Robert Holmes Bell, District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
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of his application for asylum, withholding of removal, and relief under the
Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252(a),
and we DENY the petition.
In his petition, Gao challenges the BIA’s determination that he failed to
establish eligibility for asylum and withholding of removal.1 Specifically, Gao
challenges the BIA’s determination that he failed to demonstrate past persecution
or a well-founded fear of future persecution.
Although his fiancée’s forced abortion is proof of her past persecution, Gao
himself cannot qualify for refugee status solely on the basis of the fiancée’s forced
abortion. See Jiang v. Holder, 611 F.3d 1086, 1095 (9th Cir. 2010) (citing Matter
of J-S-, 24 I. & N. Dec. 520, 535 (Att’y Gen. 2008)). Rather, Gao must establish
that he (i) resisted China’s coercive population control program; and (ii) suffered
or has a well-founded fear that he would suffer persecution by the Chinese
government on account of such resistance. See Jiang, 611 F.3d at 1094; J-S-, 24 I.
& N. Dec. at 542. Assuming for the sake of argument that Gao proved he
“resisted” in the manner contemplated in 8 U.S.C. § 1101(a)(42)(B), Gao has
offered little evidence of persecution. Although two family planning officials
1
Gao does not challenge the BIA’s determination that he is not eligible for
protection under the CAT. Therefore, that argument is waived, and we do not
address it. See He v. Holder, 749 F.3d 792, 795 n.1 (9th Cir. 2014).
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pushed Gao to the ground in a shoving match, there is no evidence showing that he
sustained any injuries as a result of the incident. Gao was never detained, arrested,
fined, fired from his job, or threatened with such actions by the family planning
officials. Therefore, substantial evidence supports the BIA’s determination that
Gao failed to demonstrate past persecution. Compare He, 749 F.3d at 796, with
Jiang, 611 F.3d at1095-96.
Further, substantial evidence supports the BIA’s determination that Gao
failed to demonstrate a well-founded fear of future persecution. Gao failed to
present adequate evidence showing that family planning officials are interested in
him should he return to China, or that there is a pattern or practice of persecution
against individuals similarly situated to him.
Because substantial evidence supports the BIA’s determination that Gao
failed to demonstrate past persecution or fear of future persecution, the BIA did not
err in finding that Gao was ineligible for asylum. In addition, the BIA did not err
in finding that Gao was ineligible for withholding of removal. See Garcia-Milian
v. Holder, 755 F.3d 1026, 1033 n.4 (9th Cir. 2014) (“An applicant who fails to
satisfy the standard of proof for asylum also fails to satisfy the more stringent
standard for withholding of removal.”).
PETITION FOR REVIEW DENIED.