NOT FOR PUBLICATION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 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 refugee status. But during Zhou’s hearing, which occurred

two years after the law had changed, Zhou testified that his declaration was

complete and included every type of harm he had experienced in China. Under the

REAL ID Act of 2005, which governs this action, substantial evidence supports the

partial adverse credibility determination. Tamang v. Holder, 598 F.3d 1083,

1093–94 (9th Cir. 2010).

2 Zhou next alleges that the IJ and the BIA committed legal error by failing to

consider his wife’s forced abortion as proof of his persecution and resistence to

China’s family planning policies. Although applicants whose spouses have been

physically subjected to forced abortion or sterilization by a foreign government are

no longer automatically entitled to refugee status, they may qualify for asylum if

they can demonstrate: (1) refugee status based on persecution for “other resistence”

to a coercive population control program; (2) a well-founded fear of being

persecuted for other resistence to a coercive population control program; (3) that

the specific facts of the case justify asylum on grounds other than those in section

601(a), 8 U.S.C. § 1101(a)(42); or (4) that they satisfy the requirements for

derivative asylum. Jiang v. Holder, 611 F.3d 1086, 1093–94 (9th Cir. 2010).

In considering a petitioner’s claim, the court must “consider a spouse’s

forced abortion or sterilization as ‘proof’ that an applicant resisted a coercive

population control policy.” Id. at 1094. But that proof is not alone sufficient as

“an applicant must provide evidence of resistence in addition to the spouse’s forced

abortion or sterilization.” Id. Contrary to Zhou’s contentions, the BIA explicitly

acknowledged its duty to consider Zhou’s wife’s forced abortion as proof of his

past persecution. After considering this evidence, the BIA found that Zhou had not

presented sufficient substantial evidence of other resistence or past persecution

3 based on other resistence. Id. at 1095 (noting that a petitioner must show

substantial evidence of further persecution beyond a spouse’s forced abortion in

support of his claims).

Zhou essentially asserts that the IJ and BIA held him to an unnecessarily

high standard by requiring him to provide proof of resistence beyond the facts that

(1) his wife was subjected to a forced abortion, and (2) he neither supported nor

acquiesced to the forced abortion. But the IJ and BIA did not err because we have

recently held that more proof of resistence is required. See He v. Holder, 749 F.3d

792 (9th Cir. 2014) (denying relief to a Chinese citizen who was fined twice the

amount as Zhou for having an additional child, whose wife later suffered a forced

abortion and sterilization, and who spent twelve years in hiding because he could

not pay the fine). Here, the credible evidence presented by Zhou shows that he

picked his wife up at the hospital after the forced abortion where he exchanged

words with the family planning official, assisted his wife in concealing a

pregnancy, and later paid a fine to the government for violating the policy by

having a third child. Although these acts show that he did not acquiesce to the

family planning policy, they do not constitute “‘overt’ and persistent defiance

required for a showing of ‘other resistence.’” Id. at 796. Moreover, although Zhou

testified that the family planning officials threatened him with arrest at the hospital,

4 he was not detained and did not suffer any adverse consequences other than being

required to pay the fine. Because persecution is an “extreme concept that means

something more than . . . harassment,” Donchev v. Mukasey, 553 F.3d 1206, 1213

(9th Cir. 2009) (internal citations omitted), substantial evidence supports the BIA’s

determination that Zhou did not establish past persecution.

Finally, Zhou has not proffered any credible evidence to support a well-

founded fear of future persecution. Because a reasonable factfinder would not be

compelled to find that Zhou either resisted China’s family planning policy or

suffered persecution, the petition is denied.

PETITION DENIED.

5

FILED

Zhou v. Lynch, No. 11-71492 JUL 23 2015

MOLLY C. DWYER, CLERK

PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS

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.

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 supposed to be a routine procedure. Instead,

government officials had discovered that his wife was pregnant and, because Zhou and his wife already had two children, forced her to undergo an abortion. Zhou

furiously argued with seven family planning officials when he found out what had

occurred and was threatened with arrest. Zhou later assisted his wife to flee into

hiding for months to conceal her next pregnancy and to protect their unborn child.

After the child was born, Zhou was assessed 20,000 RMB by the government for

violating the family planning policy by having a third child. Zhou never

acquiesced to the family planning policy.

Zhou’s courageous acts in helping to conceal his wife during her fourth

pregnancy show that, unlike He’s “grudging compliance,” Zhou “resist[ed] China’s

family planning policies in his own right [as a father].” He v. Holder, 749 F.3d at

795-96. Zhou’s defiance of the coercive population control policy fits squarely

within the meaning of “other resistance” as defined in our precedents. Zhou’s

wife’s forced abortion and Zhou’s continued support in his wife’s successful secret

effort to have a third child in defiance of China’s population control policy,

certainly exceed the burden required to show “other resistance.” Further, the birth

and open upbringing of his illegal third child constitutes “overt” and persistent

defiance of the Chinese government. Id. at 796. American asylum law is written

to protect such brave resistors rather than to deliver them back into the hands of

their persecutors.

2 As the majority points out, persecution is an “extreme concept that means

something more than . . . harassment.” Donchev v. Mukasey, 553 F.3d 1206, 1213

(9th Cir. 2009) (internal citations omitted). It is self-evident and legally true that

Zhou’s suffering, endured for the safe birth of his third child, amounts to more than

harassment. Zhou’s flight with his wife from their home to ensure she stayed

safely hidden during her pregnancy, in defiance of China’s family planning policy,

clearly demonstrates past persecution in addition to “other resistance.” See

Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314 (9th Cir. 2012) (“[W]e have

consistently recognized, being forced to flee from one’s home in the face of an

immediate threat of severe physical violence or death is squarely encompassed

within the rubric of persecution, as long as the persecutors’ actions are motivated

by [a] protected consideration”); see also Jiang v. Holder, 611 F.3d 1086, 1093-97

(9th Cir. 2010) (finding that a couple’s efforts to marry despite China’s family

planning policies, to conceive a child despite a forced abortion, and to flee from

home to avoid police and family planning officers constituted “other resistance”

and persecution); Li v. Ashcroft, 356 F.3d 1153, 1158-60 (9th Cir. 2004) (en banc)

(finding persecution as a result of a forced gynecological examination of a woman

and threats of sterilization to her partner). back into the hands of the Chinese government. 611 F.3d at 1093–94. In Jiang, a

young man argued that he should receive presumptive eligibility for asylum

because of the forced abortion and suffering of his partner. Jiang recognized that

presumptive eligibility through a partner’s forced abortion is no longer valid

because of a reinterpretation of INA § 101(a)(42) by the United States Attorney

General. Id. at 1093. Zhou does not request presumptive eligibility, but rather

successfully demonstrates “other resistence,” so the majority’s reliance on Jiang is

inapposite.

Further, Jiang is not on point here because we also consider threats of future

sterilization that exist for Zhou himself, threats that Zhou states were repeated as

recently as 2007. According to INA § 101(a)(42), “the term ‘refugee’ means . . .

(B) . . . a person who has been forced to abort a pregnancy or to undergo

involuntary sterilization . . . and a person who has a well founded fear that he or

she will be forced to undergo such a procedure . . . and [such a person] shall be

deemed to have a well founded fear of persecution on account of political opinion.”

(emphasis added). According to the plain terms of § 101(a)(42), Zhou is entitled to

refugee status.

4 The State Department’s Country Reports for China support Zhou’s well-

founded fear of future persecution through forced sterilization. One such report in

the administrative record remarks that “[m]andatory sterilization of couples with

two or more children, IUD insertion for women with one child, and abortion for

unauthorized pregnancies is now being implemented more strictly . . . local efforts

to implement these rules . . . includ[e] the imposition of heavy fines for violations,

mandatory late-term abortions, punitive sterilizations, and the destruction of

violator’s houses and personal property.” (citation omitted and emphasis added).

Our cases state that “[a] well-founded fear does not require certainty of persecution

or even a probability of persecution.” Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th

Cir. 2003). “[E]ven a ten percent chance of persecution may establish a well-

founded fear.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001); see also INS v.

Cardoza-Fonseca, 480 U.S. 421, 440 (1987).

Considering now the State Department Country Reports submitted by Zhou

addressing forced sterilization—reports that the IJ did not consider when it found

Zhou’s fear of future persecution incredible and that the BIA did not consider on

review—that probability of future persecution exists here. Aguilar Ramos v.

Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of the IJ and BIA to

consider evidence of country conditions [consisting of a State Department country

5 report] constitutes reversible error.”); Kamalthas v. INS, 251 F.3d 1279, 1284 (9th

Cir. 2001) (holding that the BIA abused its discretion when it denied petitioner’s

motion to reopen by failing to consider evidence of country conditions); Al–Saher

v. INS, 268 F.3d 1143, 1147–48 (9th Cir. 2001) (“The BIA must take [country

reports] into consideration when assessing whether an applicant qualifies under the

Convention [Against Torture].”).1

Moreover, Qu v. Gonzales, teaches that “forced sterilization is a unique kind

of persecution. In addition to the physical and psychological trauma that is

common to many forms of persecution, sterilization involves drastic and

emotionally painful consequences that are unending: The couple is forever denied

a pro-creative life together.” 399 F.3d 1195, 1202 (9th Cir. 2005). “Involuntary

sterilization irrevocably strips persons of one of the important liberties we possess

as humans: our reproductive freedom.” Id. at 1203. The well-founded fear of

future sterilization may alone be enough to justify asylum. See Li, 356 F.3d at

1161.

1 It is notable that neither the IJ nor BIA considered the China country reports in dismissing Zhou’s protection under the United Nations Convention Against Torture (“CAT”). The BIA “has plainly overrelied on its prior adverse credibility finding against [Zhou] and failed to consider evidence of the relevant country conditions in the record.” Kamalthas, 251 F.3d at 1284. As this court did in Kamalthas v. I.N.S., I would vacate the decision of the BIA and remand to the BIA for consideration of the appropriate country reports as they apply to Zhou’s CAT claim. Id. 6 Zhou credibly testified to his wife’s forced abortion, and he has

demonstrated “other resistance” to China’s family planning policies and his past

persecution through flight from his home to protect his unborn child and wife. He

has also testified to a well-founded fear of future persecution by citing to personal

threats of sterilization, a fear supported by the State Department’s Country Reports

for China.

As we found in Qu, and examining the totality of the circumstance as

required by Jiang, I believe that Zhou’s claim for asylum is compelled by the law

and facts of this case. Thus I would grant the petition, reverse the decision of the

BIA, and remand with instructions that the Attorney General exercise her

discretion on whether Zhou should be granted asylum.

7