Xuebing Zheng v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUEBING ZHENG,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 13-72754
Agency No. A089-899-150
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2019**
Honolulu, Hawaii
Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.
Xuebing Zheng, a Chinese national, petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of his applications for asylum and
withholding of removal. Zheng asserts that his applications should have been
granted because he demonstrated persecution for other resistance to a coercive
* 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).
FILED
MAR 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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population program as required by 8 U.S.C. § 1101(a)(42)(B).
We have jurisdiction under 8 U.S.C. § 1252. Although substantial evidence
appears to undercut the Immigration Judge’s (“IJ”) finding of adverse credibility,
we affirm the BIA’s denial of asylum and withholding of removal on the merits
because Zheng did not establish “other resistance to a coercive population control
program” required under 8 U.S.C. § 1101(a)(42)(B). “[A]n applicant must provide
evidence of resistance in addition to the spouse’s forced abortion or sterilization”
to overcome the possibility that the spouse may have not resisted or even
affirmatively supported the procedure. Nai Yuan Jiang v. Holder, 611 F.3d 1086,
1094 (9th Cir. 2010).
Zheng’s actions do not constitute resistance under our case law. In Ming Xin
He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014), we held that having children
earlier than permitted under China’s population control program does not compel a
finding of resistance. We also held that payment of a fine demonstrates “grudging
compliance rather than a failure or refusal to comply,” and therefore does not
constitute resistance. Id. (internal citation omitted). Zheng’s decision to take his
wife into hiding also falls short of the “overt and persistent defiance” required for a
showing of resistance. Id. (internal citation omitted).
We decline to resurrect the per se rule granting asylum to spouses of
individuals who underwent forced abortion or sterilization, rejected by the

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Attorney General in Matter of J-S-, 24 I. & N. Dec. 520 (BIA 2008), in the proper
exercise of his authority pursuant to 8 C.F.R. § 1003.1(h)(1)(i).
PETITION DENIED.

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