Xuena Gong v. Todd Blanche

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XUENA GONG; JIAYING SONG; JIAHAO No. 21-70105 SONG, Agency Nos. A206-854-818 Petitioners, A206-854-819 A206-854-820 v.

TODD BLANCHE, Acting Attorney MEMORANDUM* General,

Respondent.

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

Argued and Submitted June 23, 2026 Honolulu, Hawaii

Before: N.R. SMITH, MILLER, and JOHNSTONE, Circuit Judges.

Xuena Gong and her adult son and daughter, natives and citizens of China,

petition for review of an order of the Board of Immigration Appeals (“BIA”)

dismissing an appeal of a decision from an Immigration Judge (“IJ”) denying

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Gong’s application for asylum1 and withholding of removal.2 “Our review is

limited to the BIA’s decision except to the extent that it expressly adopts the IJ’s

opinion.” De Souza Silva v. Bondi, 139 F.4th 1137, 1142 (9th Cir. 2025). We have

jurisdiction under 8 U.S.C. § 1252 and deny the petition.

Substantial evidence supports the BIA’s past persecution determination. See

8 U.S.C. § 1101(a)(42) (the term “refugee” may encompass an individual “who has

been persecuted for failure or refusal [to abort a pregnancy or to undergo involuntary

sterilization] or for other resistance to a coercive population control program”);

Urias-Orellana v. Bondi, 607 U.S. 537, 545 (2026). The BIA concluded that the

incidents Gong and her immediate family experienced do not constitute past

persecution. “Although [Gong’s] experiences are disturbing and regrettable, they do

not evince actions so severe as to compel a finding of past persecution.” Hoxha v.

Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003); see also Sharma v. Garland, 9 F.4th

1052, 1063–64 (9th Cir. 2021).

Contrary to Gong’s arguments, there is no evidence that, in coming to its past

persecution determination, the BIA failed to consider her testimony that she was

slapped and briefly detained by family-planning officials. Rather, the BIA cited

1 Gong’s adult children are derivative asylum applicants. 2 Gong did not challenge before the BIA or this court the IJ’s determination that she withdrew her CAT claim. Accordingly, Gong’s CAT claim is unexhausted and forfeited. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004).

2 pertinent portions of the record and stated that it considered all of Gong’s evidence

cumulatively, demonstrating for us that the BIA did not “ignore” Gong’s arguments

and that it “fully reviewed the evidence.” Villegas Sanchez v. Garland, 990 F.3d

1173, 1183 (9th Cir. 2021).

Substantial evidence also supports the BIA’s determination that Gong did not

establish an objectively well-founded fear of future persecution. See Sharma, 9 F.4th

at 1065–66. As the BIA determined, Gong has not established that she would be in

violation of family planning policies, or that she would be subjected to forced

sterilization as opposed to nonpermanent forms of birth control, if returned to China.

Gong’s testimony and the country conditions evidence do not compel a contrary

conclusion. See id. (record did not compel finding of future persecution where there

was little evidence that alleged persecutors had “continuing interest” in petitioner).

Because Gong has not met the lesser burden of establishing eligibility for

asylum, she cannot meet the more stringent burden required for withholding of

removal. See id. at 1066.

PETITION DENIED.