He v. Holder

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 04-17-2014
  • Case #: 09-73516
  • Judge(s)/Court Below: Circuit Judge Clifton for the Court; District Judge Dorsey; Concurrence by Circuit Judge Reinhardt
  • Full Text Opinion

A showing of substantial economic disadvantage suffered, or other sufficient harm, is required to establish an objectively reasonable fear of future persecution to be granted review of the Board of Immigration Appeal's denial of asylum and withholding of removal.

Ming Xing He petitioned for review of the Board of Immigration Appeal's ("BIA") denial of asylum and withholding of removal pursuant to the Immigration and Nationality Act ("INA"). He is a native of the People's Republic of China and sought asylum in the United States on the grounds that his wife was forced to have an abortion and had been sterilized. He arrived in the United States as a stowaway in 2004. He was detained and petitioned for asylum and withholding of removal. His petition was denied at his first hearing after a finding that he was not credible, and his first appeal to the BIA was reversed and remanded for new credibility determination. On remand, He was not found credible. Between the time of his first and second appeal a subsequent case had been decided which altered the law and rendered He ineligible for relief. He "would only be eligible for refugee status if he (i) had resisted China’s coercive population control program, (ii) had suffered or had a well-founded fear that he would suffer persecution by the Chinese government, and (iii) was able to show that the persecution was on account of his resistance to the coercive population control program." The Ninth Circuit held that "[a] reasonable fact finder would not be compelled to find either that He offered resistance to China’s one-child policy or that he suffered persecution. therefore, He’s petition fails on each independent ground." The panel also "den[ied] He’s request…[to] remand for further proceedings so that he may try to gather and submit evidence in support of his application under the higher standards announced in” a subsequent case, because He “had ample time to ask the BIA to remand for additional factual development of his claim and failed to do so.” Petition for review DENIED.

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