NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LIN ZHAO, No. 14-73838 Petitioner, Agency No. A205-767-785 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 29, 2020** Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges. Lin Zhao, a native and citizen of China, seeks review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. * 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). Jiang v. Holder, 611 F.3d 1086, 1091 (9th Cir. 2010). As the government reminds us, we review the “Board’s decision – the final agency decision – and not the immigration judge’s decision.” See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir. 2000). We grant the petition for review as to the claims for asylum and withholding of removal and remand for further proceedings on those claims. We deny the petition for review as to the CAT claim. To be entitled to refugee status and therefore eligible for asylum, the spouse of a person subjected to a forced sterilization must demonstrate that he “ՙresisted’ China’s coercive population control program.” Matter of J-S-, 24 I. & N. Dec. 520, 523-24, 537 (A.G. 2008). Because the BIA “assum[ed] that the respondent demonstrated ՙother resistance’”, this issue is not before us. As the government states in its brief, whether or not “the immigration judge erred in finding that [Zhao] did not offer ՙother resistance’” is “not relevant to this Court’s review.” We accept the government’s articulation of the live issues. The BIA concluded, however, that Zhao did not suffer past persecution, which he must also demonstrate to be eligible for asylum. But the record compels a finding of past persecution based on the totality of the circumstances. See Nai Yuan Jiang v. Holder, 611 F.3d 1086, 1094 (9th Cir. 2010) (“[A]pplicants may present proof, of which their spouse’s treatment may be a part, of persecution for 2 14-73838 refusing to undergo forced abortion or sterilization procedures or for engaging in other resistance to a coercive population control program.” (internal quotation marks omitted) (quoting J-S-, 24 I. & N. Dec. 535). The cumulative harm here is at least equivalent to those in Nai Yuan Jiang. In 2008, Zhao’s wife was subjected to a forced abortion. During the same procedure, an intrauterine device (“IUD”) was forcibly inserted into her body. In 2010, Zhao and his wife had the IUD secretly removed by a private doctor without permission from government authorities. In November, 2011, a ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals