Lang Gao v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 30, 2023
• Docket: 16-71339
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LANG GAO, No. 16-71339

Petitioner, Agency No. A201-042-842

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted January 26, 2023** San Francisco, California

Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.

Lang Gao, a citizen of China, petitions for review of a Board of Immigration

Appeals (BIA) decision dismissing his appeal of an Immigration Judge (IJ) order

denying his applications for asylum, withholding of removal, and protection under

the Convention Against Torture (CAT). We review the BIA’s decision for

* 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). substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1060, 1066 (9th Cir. 2021).

“Under this standard, we must uphold the agency determination unless the evidence

compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028

(9th Cir. 2019). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

1. Substantial evidence supports the denial of asylum and withholding of

removal. To be eligible for asylum, a petitioner must demonstrate a “likelihood of

‘persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.’” Sharma,

9 F.4th at 1059 (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish eligibility for

withholding of removal, the petitioner must show a “clear probability” of such harm.

Id.

The IJ directed Gao to provide reasonably available corroborating evidence

of his account, and Gao failed to do so. See Jie Shi Liu v. Sessions, 891 F.3d 834,

839 (9th Cir. 2018) (noting that when an IJ gives notice that corroborating evidence

is required “and the petitioner then provides no meaningful corroboration or an

explanation for its absence, the IJ may deny the application for asylum”). Gao failed

to challenge this issue before the BIA, or this court. The issue is thus waived and

unexhausted, and we lack jurisdiction to consider it. See Diego v. Sessions, 857 F.3d

1005, 1015 n.4 (9th Cir. 2017) (holding that an issue not “specifically and distinctly

argued and raised” in an opening brief is waived (quotation omitted)); Sola v.

2 Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (“A petitioner’s failure to raise an issue

before the BIA generally constitutes a failure to exhaust, thus depriving this court of

jurisdiction to consider the issue.”).

Regardless, substantial evidence supports the BIA’s alternative determination

that Gao did not establish past persecution or a well-founded fear of future

persecution. Persecution “is an extreme concept that means something considerably

more than discrimination or harassment.” Sharma, 9 F.4th at 1060 (quoting

Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009)). Gao was arrested and

beaten by authorities on one occasion, but he suffered bruising that did not require

medical treatment, and he was detained for only four days, without indicating the

specific conditions of his confinement. Although Gao was required to report to

Chinese authorities once per week, he has not demonstrated that his reporting

requirement was sufficiently severe to constitute persecution, including when

considered with the single incident in which Gao was beaten and detained. Under

these circumstances, the BIA could conclude that Gao had not demonstrated past

persecution. See, e.g., id. at 1061 (“We have repeatedly denied petitions for review

when, among other factors, the record did not demonstrate significant physical

harm.”); Gu v. Gonzales, 454 F.3d 1014, 1017–18 (9th Cir. 2006) (concluding that

a three-day detention and single beating did not compel finding of past persecution).

Accordingly, the record does not compel a finding of past persecution.

3 Nor did Gao establish an objectively reasonable fear of future persecution.

See Duran-Rodriguez, 918 F.3d at 1029. Gao claims that he remains a target for

future persecution because Chinese authorities recently visited his parents, inquiring

of his whereabouts. But the IJ reasonably concluded that Gao failed to corroborate

this testimony with reasonably available evidence despite being on notice that such

evidence was required. As noted above, Gao has failed to challenge that

determination before the BIA or this court. See Liu, 891 F.3d at 839. Because

substantial evidence supports the denial of asylum, Gao necessarily failed to meet

the higher standard for withholding of removal. See Sharma, 9 F.4th at 1066.

2. Substantial evidence supports the denial of CAT relief. An applicant

for CAT protection must demonstrate that he “will more likely than not be tortured

with the consent or acquiescence of a public official if removed to h[is] native

country.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). For the

reasons we have given above with respect to asylum and withholding of removal,

the record does not compel the conclusion that Gao has demonstrated a likelihood

of torture if he is removed to China.

PETITION DENIED.