Zhongxiang Zhou v. Loretta E. Lynch

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUL 23 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ZHONGXIANG ZHOU, No. 11-71492

Petitioner, Agency No. A088-272-454

v.

MEMORANDUM*

** LORETTA E. LYNCH, Attorney General,

Respondent.

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

Argued and Submitted June 17, 2015 San Francisco, California

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.**

Zhongxiang Zhou, a native and citizen of China, petitions for review of a

final order of removal from the Board of Immigration Appeals (“BIA”). The BIA

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Loretta E. Lynch is substituted for Eric H. Holder, Jr. as Attorney General of the United States. Fed. R. App. P. 43(c)(2). dismissed Zhou’s appeal of an Immigration Judge’s (“IJ”) denial of his

applications for asylum, withholding of removal, and protection under the United

Nations Convention Against Torture (“CAT”). We have jurisdiction…

MEMORANDUM **

Zhongxiang Zhou, a native and citizen of China, petitions for review of a final order of removal from the Board of Immigration Appeals (“BIA”). The BIA dismissed Zhou’s appeal of an Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and protection under the United Nations • Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 , and we deny the petition for review.

Zhou first contests the partial adverse credibility finding made by the IJ and upheld by the BIA. Although the BIA found parts of Zhou’s story credible, it discounted Zhou’s testimony that family planning officials threatened him with forced sterilization on four different occasions, that it took him ten years of work to raise the money required to pay the family planning fines, and that the work put him in poor physical condition. The BIA discounted this information largely because it did not appear in Zhou’s declaration that was filed along with his asylum application. Zhou now contends that the IJ and the BIA .erred by not considering that, when he crafted his declaration, spouses of victims of forced abortion were automatically granted…

dissenting:

An alien may establish eligibility for asylum based upon either past persecution or a well-founded fear of future persecution. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). The record in this case compels a finding of eligibility for asylum based on both Zhongxiang Zhou’s past persecution and his well-founded fear of future persecution.

In terms of past persecution, the facts in Zhou’s case greatly exceed the proof of “other resistance” recently required by He v. Holder. In He, the petitioner was working a two days’ train journey away from his home in another city in China while Chinese authorities forced his wife to undergo an abortion. Unlike Zhou, He did “not describe[] any resistance to China’s family planning policies in his own right.” 749 F.3d 792, 795 (9th Cir.2014). The twelve years He spent in hiding were a result of failing to pay a government fine, not continued efforts to defy China’s family planning authorities by attempting to have another child. Id. at 794 .

*911 Here, the IJ determined that credible evidence presented by Zhou showed that Zhou did resist China’s family planning policies. Zhou picked his wife up at the hospital from what was…