Lu De Zhao v. ERIC H. HOLDER, Jr., Attorney General

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LU DE ZHAO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-70262
Agency No. A095-592-084
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2011**
San Francisco, California
Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.
Petitioner Lu De Zhao, a native and citizen of the People’s Republic of
China, petitions for review of the Board of Immigration Appeal’s (BIA) final order
denying her application for asylum. Because the parties are familiar with the
factual and procedural history of this case, we repeat only those facts necessary to
FILED
NOV 18 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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resolve the issues raised on appeal. We have jurisdiction pursuant to 8 U.S.C.
§ 1252, and we deny Zhao’s petition for review.
On August 6, 2002, Zhao filed her initial application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT) based on alleged persecution of her family after her parents violated
China’s family planning policy by having a second child, Zhao’s brother. After the
immigration judge (IJ) and BIA denied her application, Petitioner appealed to the
Ninth Circuit. See Zhao v. Gonzales (Zhao I), 143 F. App’x 906 (9th Cir. 2005).
The court denied her petition as to her withholding of removal claim and found her
CAT and religious persecution claims waived. Id. at 906–07. The court remanded
the asylum claim back to the IJ to make a new determination in light of Zhang v.
Gonzales, 408 F.3d 1239 (9th Cir. 2005). On remand, the IJ again denied Zhao’s
asylum application and the BIA affirmed.
We conclude that substantial evidence supports the IJ’s factual finding that
the hardships Zhao faced did not rise to the level of persecution. See Zhang, 408
F.3d at 1244. We have declined to extend automatic asylum eligibility to the child
of a parent who was forcibly sterilized, and we require that the child show that he
or she suffered hardships that rise to the level of persecution. Id. at 1245–47. On
remand, the IJ properly considered the “individual and cumulative effects of the

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hardships suffered by Zhao, including economic deprivation and harm to her
family.” See Zhao I, 143 F. App’x at 906. The record shows that economic effects
on the Zhao family were limited to a period less than a year between 1982 to 1983,
after which both of Zhao’s parents were employed, recovered their full salary, and
did not face any fines. See Gormley v. Ashcroft, 364 F.3d 1172, 1178–80 (9th Cir.
2004) (“[M]ere economic disadvantage alone does not rise to the level of
persecution.”) (citations omitted). Similarly, her parents’ decision to give birth to
her brother at a private hospital instead of the government-run hospital for fear of
reprisal did not lead to significant economic effects on Zhao. As to harm to Zhao’s
brother, the record does not compel the conclusion that his disability, arising from
complications at birth, or subsequent harassment on account of his disability were
caused by China’s one child policy. Finally, evidence in the record shows that
Zhao’s parents were not singled out and punished for their violation. Instead the
family received several benefits not afforded to others, including subsidized
housing and opportunities for Zhao’s father to travel abroad as a visiting scholar.
Moreover, Zhaos’ fear of future persecution based on the one child policy is
speculative because she does not have any children and is not married. The record
does not compel a finding that the hardships rose to the necessary level to establish
persecution or that Zhao has established a well-founded fear of future persecution.

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INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992). We affirm the BIA’s
denial of Zhao’s asylum claim.
As to Zhao’s claims that she was improperly denied withholding of removal
and that she suffered religious persecution, we hold that these claims are barred by
the limited scope of the Zhao I remand. “[U]nder the law of the case doctrine, one
panel of an appellate court will not as a general rule reconsider questions which
another panel has decided on a prior appeal in the same case.” Merritt v. Mackey,
932 F.2d 1317, 1320 (9th Cir. 1991) (quotation marks and citation omitted). We
decline to do so here.
PETITION DENIED.

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