Ming He v. Eric Holder, Jr., 2014 U.S. App. LEXIS 7217

Ming Xin He, a Chinese national, applied for asylum, withholding, and CAT relief after entering the U.S. as a stowaway in 2004; he claimed his wife was forcibly aborted and sterilized in 1992 and he was fined under China’s one-child policy.
He testified he paid part of the fine, hid from authorities from 1992–2004 while continuing to work, borrowed money from smugglers to come to the U.S., and argued the abuse to his wife made him a refugee.
The IJ initially found He not credible; the BIA remanded for credibility, the IJ again found him not credible, and on subsequent appeal the BIA instead applied In re J-S- (Attorney General decision) changing the legal framework for spouses of forced-abortion victims.
Under J-S-, automatic refugee status for spouses was overruled; eligibility requires either the applicant’s own resistance to population control or independent evidence of persecution on account of such resistance.
The BIA held He did not show "other resistance," his partial fine payment and concealed early marriage were not resistance, and he did not suffer or reasonably fear persecution — economic impacts were insufficient.
He sought remand to develop evidence under J-S-; the court denied remand for failure to exhaust administrative remedies and because He had opportunities earlier to request remand and to develop the record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether spouse of forced-abortion victim is per se a refugee	He argued he (as spouse) is entitled to asylum based on wife’s forcible abortion/sterilization	Government relied on In re J-S-: spouses are not per se refugees; must show own resistance or persecution	Held for government: J-S- controls; no automatic refugee status for spouse
Whether He engaged in "other resistance" to one-child policy	He argued refusal to pay full fine, early marriage/children show resistance	BIA/Gov’t: partial payment and concealment are compliance, not overt resistance	Held for government: partial payment and concealment do not constitute resistance
Whether He suffered persecution (including economic)	He argued fines, hiding, and living constraints constituted persecution	BIA/Gov’t: economic effects not severe; he worked, borrowed funds, family remained unharmed — not extreme persecution	Held for government: substantial evidence supports finding no persecution
Whether remand to develop evidence under J-S- was required	He asked remand to gather further evidence complying with J-S-	Government: He had opportunity earlier to request remand and failed to exhaust administrative remedies	Held for government: remand denied for failure to exhaust and lack of particularized justification

Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006) (standard of highly deferential substantial-evidence review of BIA asylum determinations)
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency interpretations can bind courts even if they conflict with prior circuit precedent)
Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003) (withholding of removal requires higher burden than asylum)
Donchev v. Mukasey, 553 F.3d 1206 (9th Cir. 2009) (persecution is an "extreme concept")
Gormley v. Ashcroft, 364 F.3d 1172 (9th Cir. 2004) (definition and limits of economic persecution)
Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003) (economic harm that does not destroy livelihood is not necessarily persecution)
Yi Ni v. Holder, 613 F.3d 415 (4th Cir. 2010) (failure to seek remand before the BIA precludes later request for remand based on intervening law)
Chen v. Holder, 578 F.3d 515 (7th Cir. 2009) (distinguishable decision remanding where petitioner had briefed case before intervening decision)
Jiao Hua Huang v. Holder, 620 F.3d 33 (1st Cir. 2010) (upholding BIA refusal to remand for further factfinding after Matter of J-S-)