He v. Holder, No. 09-73516 (9th Cir. 2014)
Annotate this CasePetitioner, a citizen of China, petitioned for review of the decision of the BIA that he was not entitled to asylum or withholding of removal. Petitioner sought asylum on the ground that his wife had suffered a forcible abortion and had been sterilized. The court concluded that substantial evidence supported the BIA's decision where a reasonable factfinder would not be compelled to find either that petitioner offered resistance to China's one-child policy or that he suffered persecution. The court also concluded that remand for further proceedings to gather and submit evidence in support of his application under Matter of J-S- was not necessary where petitioner had an opportunity to seek remand and may not wait until this point to make such a request. The particularized facts of this case did not support petitioner's tardy request for remand where there was no reason to believe that he would be able to supply new evidence now. Accordingly, the court denied the petition for review.
Court Description: Immigration. The panel denied a petition for review of the Board of Immigration Appeals’ denial of asylum and withholding of removal to a citizen of China who asserted claims based on his resistance to China’s family planning policies. The panel held that a reasonable factfinder would not be compelled to conclude that petitioner resisted China’s one- child family planning policy where he married when under age, had children earlier than China’s policy allowed, and grudgingly complied with fines. Nor would a reasonable factfinder be compelled to conclude that petitioner suffered past persecution, taking into account his wife’s forced abortion, where he did not show that he suffered substantial economic disadvantage or other sufficient harm. The panel held that petitioner failed to establish an objectively reasonable fear of future persecution. The panel denied petitioner’s request for remand for further proceedings to gather and submit evidence in support of his application under the higher standards announced in Matter of J–S–, 24 I. & N. Dec. 520 (A.G. 2008), a decision announced after petitioner filed his application for relief, because he had ample time to ask the Board to remand for additional factual development of his claim, but failed to do so, and the particularized facts of the case did not support the request for remand. Judge Reinhardt concurred because when petitioner’s appeal was before the Board, he did not request that it be remanded to the IJ so that he could introduce evidence that would comply with Matter of J-S-, and thus failed to exhaust his administrative remedies. Had petitioner sought a remand and had it been denied, Judge Reinhardt would have granted the present petition with instructions that it be remanded to the IJ.
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