Shuyuan Feng v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 2018
• Docket: 15-71175
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 28 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHUYUAN FENG; ANYA YU; MENG No. 15-71175 YU, Agency Nos. A200-149-847 Petitioners, A200-149-848 A200-149-846 v.

JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General,

Respondent.

MENG YU; SHUYUAN FENG; ANYA No. 15-72958 YU, Agency Nos. A200-149-846 Petitioners, A200-149-847 A200-149-848 v.

JEFFERSON B. SESSIONS III, Attorney General,

On Petitions for Review of Orders of the Board of Immigration Appeals

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted February 5, 2018 San Francisco, California

Before: D.W. NELSON, TASHIMA, and CHRISTEN, Circuit Judges.

Shuyuan Feng and Meng Yu and their daughter Anya Yu, citizens of China,

petition for review of the Board of Immigration Appeals’ (“BIA”) dismissal of

their claims for asylum, withholding of removal, and protection under the United

Nations Convention Against Torture (“CAT”), as well as the BIA’s denial of

petitioners’ subsequent motion to reopen. We have jurisdiction under 8 U.S.C. §

1252 and deny the petitions.

1. Petitioners first contend that Feng’s 2009 abortion was forced and

therefore constitutes past persecution. If an applicant for asylum “has been forced

to abort a pregnancy or to undergo involuntary sterilization . . . [she] shall be

deemed to have been persecuted on account of political opinion.” 8 U.S.C.

1101(a)(42)(B). This court has recognized that “‘forced’ . . . includes compelling,

obliging, or constraining by mental, moral, or circumstantial means, in addition to

physical restraint.” Ding v. Ashcroft, 387 F.3d 1131, 1139 (9th Cir. 2004). In this

case, however, family planning officials never knew about the 2009 pregnancy and

their 2007 threat was too attenuated from the 2009 pregnancy to constitute force.

There is no record evidence of other specific coercive acts. See Wang v. Ashcroft,

2 341 F.3d 1015, 1018, 1020 (9th Cir. 2003). Substantial evidence therefore

supports the BIA’s conclusion that Feng’s 2009 abortion was not forced.

Yu and Anya do not contend that they were subject to past persecution other

than the 2009 abortion. Substantial evidence therefore supports the agency’s

finding that Yu and Anya have not demonstrated past persecution. He v. Holder,

749 F.3d 792, 796 (9th Cir. 2014).

2. Petitioners also contend that they have a well-founded fear of future

economic persecution because the family will face sanctions for violating China’s

family planning policy. An asylum applicant may establish a well-founded fear by

pointing to “credible, direct, and specific evidence in the record of facts that would

support a reasonable fear of persecution.” Rusak v. Holder, 734 F.3d 894, 896 (9th

Cir. 2013) (citation and quotation marks omitted). Economic persecution must be

“severe”; it is deprivation “above and beyond . . . [the] mere loss of social

advantages.” Matter of T-Z-, 24 I. & N. Dec. 163, 173 (BIA 2007). An applicant

who has violated China’s family planning policy can demonstrate a well-founded

fear with evidence of “current local family planning enforcement efforts.” Matter

of J-H-S-, 24 I. & N. Dec. 196, 198 (BIA 2007); accord Zhao v. Holder, 728 F.3d

1144, 1147–48 (9th Cir. 2013).

3 Although Feng testified that her U.S.-born son had been denied admission to

public kindergarten, petitioners did not point to “credible, direct, and specific

evidence,” Rusak, 734 F.3d at 896, of other penalties or how economic sanctions

would “interfere[] with [their] livelihood,” He, 749 F.3d at 796. Substantial

evidence therefore supports the agency’s conclusion that petitioners do not have a

well-founded fear of future persecution in China.

3. Because substantial evidence supports the agency’s conclusion that

petitioners are not eligible for asylum, they are a fortiori ineligible for withholding

of removal. Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

Furthermore, petitioners waived any argument about their entitlement to CAT

relief by failing to so argue in their opening brief. Cui v. Holder, 712 F.3d 1332,

1338 n.3 (9th Cir. 2013).

4. Lastly, petitioners contend the BIA erred in not granting their motion

to reopen based on ineffective assistance of counsel. “The right to effective

assistance of counsel in immigration proceedings stems from the Fifth

Amendment’s guarantee of due process.” Salazar-Gonzalez v. Lynch, 798 F.3d

917, 921 (9th Cir. 2015). Petitioners must show that prior counsel’s performance

was both deficient and prejudicial, such that it “‘may have affected the outcome of

4 the proceedings.’” Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir. 2005)

(quoting Iturribaria v. INS, 321 F.3d 889, 900 (9th Cir. 2003)).

First, petitioners did not substantially comply with Matter of Lozada, 19 I. &

N. Dec. 637 (BIA 1988), which sets forth the requirements for a motion to reopen

where, as here, ineffective assistance is not “clear and obvious.” See Rodriguez-

Lariz v. INS, 282 F.3d 1218, 1226–27 (9th Cir. 2002) (listing Lozada requirements,

but noting that they are not “rigidly applied, especially when the record shows a

clear and obvious case of ineffective assistance”). Petitioners did not give prior

counsel adequate notice of their allegations or file a complaint with disciplinary

authorities.

Second, even if petitioners had complied with Lozada, they did not show

that their prior counsel’s performance was deficient or prejudicial. Their original

attorney “present[ed] a viable legal argument on [petitioners’] behalf supported by

relevant evidence.” United States v. Lopez-Chavez, 757 F.3d 1033, 1041 (9th Cir.

2014) (citation and quotation marks omitted). The BIA therefore did not abuse its

discretion in denying petitioners’ motion to reopen.

• ! •

The petitions for review are DENIED.