Xing Gao v. Eric Holder, Jr.

U.S. Court of Appeals for the Ninth Circuit
Xing Gao v. Eric Holder, Jr., 588 F. App'x 578 (9th Cir. 2014)

Xing Gao v. Eric Holder, Jr.

Opinion

MEMORANDUM ***

Xing Hui Gao, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ decision affirming the immigration judge’s denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we DENY the petition.

In his petition, Gao challenges the BIA’s determination that he failed to establish eligibility for asylum and withholding of removal. 1 Specifically, Gao challenges the BIA’s determination that he failed to demonstrate past persecution or a well-founded fear of future persecution.

Although his fiancée’s forced abortion is proof of her past persecution, Gao himself cannot qualify for refugee status solely on the basis of the fiancée’s forced abortion. See Jiang v. Holder, 611 F.3d 1086, 1095 (9th Cir. 2010) (citing Matter of J-S-, 24 I. & N. Dec. 520, 535 (Att’y Gen. 2008)). Rather, Gao must establish that he (i) resisted China’s coercive population control program; and (ii) suffered or has a well- *579 founded fear that he would suffer persecution by the Chinese government on account of such resistance. See Jiang, 611 F.3d at 1094; J-S-, 24 I. & N. Dec. at 542. Assuming for the sake of argument that Gao proved he “resisted” in the manner contemplated in 8 U.S.C. § 1101(a)(42)(B), Gao has offered little evidence of persecution. Although two family planning officials pushed Gao to the ground in a shoving match, there is no evidence showing that he sustained any injuries as a result of the incident. Gao was never detained, arrested, fined, fired from his job, or threatened with such actions by the family planning officials. Therefore, substantial evidence supports the BIA’s determination that Gao failed to demonstrate past persecution. Compare He, 749 F.3d at 796, with Jiang, 611 F.3d at 1095-96.

Further, substantial evidence supports the BIA’s determination that Gao failed to demonstrate a well-founded fear of future persecution. Gao failed to present adequate evidence showing that family planning officials are interested in him should he return to China, or that there is a pattern or practice of persecution against individuals similarly situated to him.

Because substantial evidence supports the BIA’s determination that Gao failed to demonstrate past persecution or fear -of future persecution, the BIA did not err in finding that Gao was ineligible for asylum. In addition, the BIA did not err in finding that Gao was ineligible for withholding of removal. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033 n. 4 (9th Cir. 2014) (“An applicant who fails to satisfy the standard of proof for asylum also fails to satisfy the more stringent standard for withholding of removal.”).

PETITION FOR REVIEW DENIED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. Gao does not challenge the BIA’s determination that he is not eligible for protection under the CAT. Therefore, that argument is waived, and we do not address it. See He v. Holder, 749 F.3d 792, 795 n. 1 (9th Cir. 2014).

Reference

Full Case Name
XING HUI GAO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent
Status
Unpublished