Xinfeng Li v. Loretta E. Lynch
670 F. App'x 636
| 9th Cir. | 2016Background
- Xinfeng Li, a Chinese national, petitions for review of the BIA’s dismissal of his applications for asylum, withholding of removal, and CAT protection after a forced abortion was imposed on his wife.
- Li was beaten once while trying to stop family-planning officials from taking his wife for the abortion; his wages were reduced and he lost a factory job but later obtained higher-paying work as a taxi driver.
- Li’s wife was required to have an IUD thereafter, which Li alleges prevented further children; Li has lived in the U.S. for nine years while his wife remained in China.
- Li and his family remained in China without apparent harassment for eight years after the abortion; Li also traveled to and returned from China without incident before coming to the U.S.
- The BIA found Li failed to show past persecution, a well-founded fear of future persecution, or likelihood of torture by or with the acquiescence of the Chinese government; the Ninth Circuit reviews for substantial evidence and denies the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Li suffered past persecution sufficient for asylum | The forced abortion of his wife, his beating, job loss, and wife’s IUD constitute persecution | The incidents were isolated or not economically/physically substantial; no ongoing harassment | Denied — substantial evidence supports no past persecution |
| Whether Li has a well-founded fear of future persecution | Inability to have more children and prior coercion show future risk | Lack of ongoing harassment and years in China without incident negate future fear | Denied — substantial evidence supports no well-founded fear |
| Whether Li is eligible for withholding of removal | Past persecution/face of future harm entitles him to withholding | Withholding requires stricter standard; asylum not met so withholding fails | Denied — cannot meet higher withholding standard |
| Whether Li is entitled to CAT protection | More likely than not to be tortured if returned given prior coercive family-planning practices | No showing that torture is likely or would occur with government consent/acquiescence | Denied — substantial evidence supports denial of CAT relief |
Key Cases Cited
- Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006) (standard of review and withholding-of-removal relationship to asylum)
- Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010) (spouse of forced-abortion victim can qualify when subjected to severe government coercion)
- Halim v. Holder, 590 F.3d 971 (9th Cir. 2009) (single beating and harassment generally insufficient for past persecution)
- He v. Holder, 749 F.3d 792 (9th Cir. 2014) (economic penalties for family-planning violations do not necessarily constitute persecution)
- Silaya v. Mukasey, 524 F.3d 1066 (9th Cir. 2008) (standard for establishing likelihood of torture under CAT)