Lin Zhao v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 2, 2020
• Docket: 14-73838
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LIN ZHAO, No. 14-73838

Petitioner, Agency No. A205-767-785

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 29, 2020**

Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.

Lin Zhao, a native and citizen of China, seeks review of the Board of

Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration

judge’s decision denying his applications for asylum, withholding of removal and

protection under the Convention Against Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal.

* 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). Jiang v. Holder, 611 F.3d 1086, 1091 (9th Cir. 2010). As the government reminds

us, we review the “Board’s decision – the final agency decision – and not the

immigration judge’s decision.” See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.

2000).

We grant the petition for review as to the claims for asylum and withholding of

removal and remand for further proceedings on those claims. We deny the petition

for review as to the CAT claim.

To be entitled to refugee status and therefore eligible for asylum, the spouse of

a person subjected to a forced sterilization must demonstrate that he “ՙresisted’

China’s coercive population control program.” Matter of J-S-, 24 I. & N. Dec.

520, 523-24, 537 (A.G. 2008). Because the BIA “assum[ed] that the respondent

demonstrated ՙother resistance’”, this issue is not before us. As the government

states in its brief, whether or not “the immigration judge erred in finding that

[Zhao] did not offer ՙother resistance’” is “not relevant to this Court’s review.” We

accept the government’s articulation of the live issues.

The BIA concluded, however, that Zhao did not suffer past persecution, which

he must also demonstrate to be eligible for asylum. But the record compels a

finding of past persecution based on the totality of the circumstances. See Nai

Yuan Jiang v. Holder, 611 F.3d 1086, 1094 (9th Cir. 2010) (“[A]pplicants may

present proof, of which their spouse’s treatment may be a part, of persecution for

2 14-73838 refusing to undergo forced abortion or sterilization procedures or for engaging in

other resistance to a coercive population control program.” (internal quotation

marks omitted) (quoting J-S-, 24 I. & N. Dec. 535). The cumulative harm here is

at least equivalent to those in Nai Yuan Jiang.

In 2008, Zhao’s wife was subjected to a forced abortion. During the same

procedure, an intrauterine device (“IUD”) was forcibly inserted into her body. In

2010, Zhao and his wife had the IUD secretly removed by a private doctor without

permission from government authorities. In November, 2011, a daughter was born

to Zhao and his wife. In December, 2011, government Family Planning officials

discovered the couple’s transgression and came to their home to take his wife for

sterilization. When Zhao resisted, a Family Planning official stomped on his foot

and administered a blow to his head, knocking him down. A neighbor took him to

the hospital where he was “patched up”. However, police officers arrived at the

hospital before he could leave and took him to the police station where he was

kicked and shocked with an electric baton, causing him to fall down. Quan v.

Gonzales, 428 F.3d 883, 888–89 (9th Cir. 2005) (“Using an electrically-charged

baton on a prisoner . . . may constitute persecution, even when there are no long-

term effects and the prisoner does not seek medical attention.”). The police

accused him of being “blatantly anti-government”. Zhao testified that the police

objected to “hiding and having the IUD removed”. The police detained him for

3 14-73838 seven days. When he was released, Zhao discovered that his wife had not been

sterilized “because doctors deemed her health too poor.”

A finding of past persecution creates a rebuttable presumption of a well-

founded fear of future persecution. Therefore, we remand this case to the BIA to

determine in the first instance whether the government can rebut that presumption

with respect to Zhao’s asylum and withholding of removal claims. See Guo v.

Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018).

We deny Zhao’s petition as to his CAT claim. Substantial evidence supports

the agency’s denial of CAT protection because Zhao failed to show it is more

likely than not he will be tortured by or with the consent or acquiescence of the

government if returned to China. See Aden v. Holder, 589 F.3d 1040, 1047 (9th

Cir. 2009).

Each party shall bear its own costs.

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

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