Xuebing Zheng v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2019
• Docket: 13-72754
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XUEBING ZHENG, No. 13-72754

Petitioner, Agency No. A089-899-150

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

Respondent.

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

Submitted February 11, 2019** Honolulu, Hawaii

Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.

Xuebing Zheng, a Chinese national, petitions for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of his applications for asylum and

withholding of removal. Zheng asserts that his applications should have been

granted because he demonstrated persecution for other resistance to a coercive

* 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). population program as required by 8 U.S.C. § 1101(a)(42)(B).

We have jurisdiction under 8 U.S.C. § 1252. Although substantial evidence

appears to undercut the Immigration Judge’s (“IJ”) finding of adverse credibility,

we affirm the BIA’s denial of asylum and withholding of removal on the merits

because Zheng did not establish “other resistance to a coercive population control

program” required under 8 U.S.C. § 1101(a)(42)(B). “[A]n applicant must provide

evidence of resistance in addition to the spouse’s forced abortion or sterilization”

to overcome the possibility that the spouse may have not resisted or even

affirmatively supported the procedure. Nai Yuan Jiang v. Holder, 611 F.3d 1086,

1094 (9th Cir. 2010).

Zheng’s actions do not constitute resistance under our case law. In Ming Xin

He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014), we held that having children

earlier than permitted under China’s population control program does not compel a

finding of resistance. We also held that payment of a fine demonstrates “grudging

compliance rather than a failure or refusal to comply,” and therefore does not

constitute resistance. Id. (internal citation omitted). Zheng’s decision to take his

wife into hiding also falls short of the “overt and persistent defiance” required for a

showing of resistance. Id. (internal citation omitted).

We decline to resurrect the per se rule granting asylum to spouses of

individuals who underwent forced abortion or sterilization, rejected by the

2 Attorney General in Matter of J-S-, 24 I. & N. Dec. 520 (BIA 2008), in the proper

exercise of his authority pursuant to 8 C.F.R. § 1003.1(h)(1)(i).

PETITION DENIED.