United States Court of Appeals

For the First Circuit

No. 12-1685

GUO SHOU WU,

Petitioner,

v.

ERIC H. HOLDER, JR.,

UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Torruella and Thompson, Circuit Judges.

Wei Jia and Law Office of Wei Jia, on brief for petitioner.

Kristofer R. McDonald, Office of Immigration Litigation,

Department of Justice, Civil Division, Stuart F. Delery, Principal

Deputy Assistant Attorney General, Civil Division, and Leslie

McKay, Assistant Director, Office of Immigration Litigation, on

brief for respondent.

December 20, 2013
TORRUELLA, Circuit Judge. Guo Shou Wu, a native and

citizen of China, petitions for review of an order of the Board of

Immigration Appeals (BIA) dismissing his appeal of an order of an

Immigration Judge (IJ) denying his applications for relief from

removal. For the reasons set forth below, his petition is denied.

I. Background

Wu asserted the following facts in support of his claim.

He is married, and his wife still lives in China. In accordance

with China's family planning program, after the birth of their

first child, Wu's wife received, against her will, an intra-uterine

device. Wu and his wife consulted a private doctor and, without

the consent of family planning officials, had the device removed.

The couple became pregnant for a second time, and, despite efforts

to conceal the pregnancy, Wu's wife was subjected by family

planning officials to a forced abortion. Wu and his wife then

moved to a remote area, where she again became pregnant and gave

birth to their second child.

When it came time to register their children with the

government, over Wu's pleas and objections, family planning

officials detained and forcibly sterilized his wife as punishment

for having had an unsanctioned second child. Family planning

officials also fined the couple 5000 renminbi. Thereafter, Wu

remained in China without incident for nine years, at which point

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he illegally departed the country. He illegally entered the United

States and was charged with removability.

Appearing before an IJ in New York, Wu conceded

removability but requested relief from removal in the form of

asylum, withholding of removal, and protection under the Convention

Against Torture (CAT). To be granted asylum, Wu had to show that

he was unable or unwilling to return to China because had suffered

past persecution, or had a well founded fear of future persecution,

on account of his race, religion, nationality, membership in a

particular social group, or political opinion. See 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1)(A). To be granted withholding of

removal, Wu had to show that upon removal to China he would more

likely than not face future persecution on account of one of those

bases. See id. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2). Because

the "more likely than not" -- or "clear probability" -- standard

for withholding of removal is more stringent than that for asylum,

a petitioner unable to satisfy the asylum standard necessarily

fails the withholding of removal standard as well. See Mediouni v.

I.N.S., 314 F.3d 24, 27 (1st Cir. 2002). To be granted protection

under CAT, Wu had to show that upon removal to China he would more

likely than not be tortured. See 8 C.F.R. § 208.16(c)(2).

Wu's applications for relief were denied, and Wu's

subsequent appeal to the BIA was dismissed. Wu petitioned the

Second Circuit for review, but the petition was dismissed in

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accordance with a stipulation between the parties to vacate the

BIA's decision and to remand the matter for a new hearing in which

an IJ would consider any new evidence in addition to the evidence

from the previous hearing.

The matter was assigned to an IJ in Boston. The IJ

discredited Wu's testimony, but went on to address the merits of

Wu's applications as if he had testified credibly. In that regard,

the IJ found that Wu failed to establish either past persecution or

a well founded fear of future persecution, and thus was entitled to

neither asylum nor, a fortiori, withholding of removal. The IJ

also found that Wu failed to establish a clear probability of

future torture, and thus was not entitled to protection under CAT.

On appeal the BIA concluded that Wu's applications for relief were

governed by the REAL ID Act, which allows the IJ to make

credibility determinations "without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant's claim." Pub L. No. 109-13, Div. B, 119 Stat. 231

(codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). The BIA also

concluded that Wu failed to demonstrate past persecution, a well

founded fear of future persecution, or a clear probability of

future torture, and thus was not entitled to relief from removal.

Accordingly, the BIA dismissed the appeal. This petition followed.

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II. Discussion

Wu petitions for review on the ground that the BIA erred

in concluding that (i) the REAL ID Act applied, (ii) Wu failed to

demonstrate past persecution, and (iii) Wu failed to demonstrate a

well founded fear of future persecution.1

A. Standard of Review

We review the BIA's legal conclusions de novo and its

factual determinations under the substantial evidence standard.

Soeung v. Holder, 677 F.3d 484, 487 (1st Cir. 2012). Under this

deferential standard, we must uphold the BIA's determination unless

the record not only supports, but compels the contrary conclusion.

López de Hincapié v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007).

B. REAL ID Act

Wu first asserts, and the Government concedes, that the

BIA erred in concluding that the REAL ID Act applied to Wu's case.

The IJ had found that the Act did not apply, and the BIA affirmed

the IJ's denial of relief. Nevertheless, the BIA said the Act

1 As noted above, the BIA's conclusions that Wu failed to

demonstrate either past persecution or a well founded fear of

future persecution allowed the BIA to dispose of both his asylum

claim and his withholding of removal claim. The BIA also concluded

that Wu failed to demonstrate a clear probability of torture,

agreeing with the IJ's finding in this regard and noting that Wu

did not specifically challenge that finding before the BIA. Wu

does not appear to specifically challenge that finding before us

either: While his brief references CAT, he does not argue that any

future harm he may suffer would rise to the level of torture. 

Thus, we deem his CAT claim waived. See Hana v. Gonzales, 503 F.3d

39, 43 n.3 (1st Cir. 2007) ("Because this claim is perfunctory and

unaccompanied by developed argumentation, we deem it waived.").

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applied because it believed, mistakenly, that Wu filed his asylum

application after May 11, 2005. In fact, Wu filed his application

in 2002, so the Act does not apply. See In re S-B-, 24 I. & N.

Dec. 42, 43 (BIA 2006).

But Wu does not explain how this error affected his

case.2 After all, the BIA's order did not depend on any REAL ID

Act provisions, which, in this context, merely provide a framework

for the trier of fact to assess credibility, see id. at 42-43.

Indeed, the BIA assumed the credibility of Wu's testimony, but went

on to conclude that Wu failed to establish past persecution, a well

founded fear of future persecution, or a clear probability of

future torture. So the error was harmless. See Jaya v. Gonzales,

169 F. App'x 596, 598 (1st Cir. 2005) (invoking harmless error

doctrine in instance where BIA arguably erred).

2 The REAL ID Act applies to applications filed on or after

May 11, 2005. See Jabri v. Holder, 675 F.3d 20, 24 (1st Cir.

2012). In these cases, "a trier of fact may base an adverse

credibility determination on any inconsistency in the record that

has a bearing on the petitioner's veracity, 'without regard to

whether [the] inconsistency . . . goes to the heart of the

applicant's claim.'" Id. (alteration and omission in original)

(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). In cases where the

application was filed before May 11, 2005, however, "an adverse

credibility determination may not be predicated on inconsistencies

in an applicant's testimony that do not go to the heart of the

applicant's claim." Lin v. Mukasey, 521 F.3d 22, 26 (1st Cir.

2008).

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C. Past Persecution

Wu next asserts that he is entitled to asylum because he

was persecuted for resisting China's coercive population control

program -- that is, he was persecuted on account of his political

opinion. Assuming for the sake of argument that Wu demonstrated

that he had resisted a coercive population control program, the BIA

nevertheless determined that Wu failed to show that he had been

persecuted. We cannot say that the record compels the contrary

conclusion.

In his brief, the only example of persecution that Wu

provides is that he was "deprived of his right, freedom and liberty

to father additional children with his wife." To support the

proposition that this deprivation amounts to persecution, Wu

directs us, not to any controlling authority, but to the Ninth

Circuit's decision in Jiang v. Holder, 611 F.3d 1086 (9th Cir.

2010). But Jiang did not hold that deprivation of the right to

father children, by itself, amounts to persecution. Rather, the

Ninth Circuit held that the forced abortion or sterilization of a

noncitizen's spouse is but one factor that can indicate

persecution. Id. at 1095. There, the noncitizen "offered

substantial evidence of additional persecution in support of his

claim," such as being (i) expelled from school, (ii) detained by

authorities, (iii) forced to pay a heavy fine to be released from

detention, (iv) subject to near arrest by police at his home on the

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morning of his wedding, and (v) forced to flee his hometown to hide

from authorities. Id. at 1095-96.

Here, by contrast, Wu mentions only the deprivation of

his ability to father more children. And even if we were to add to

that alleged deprivation the other harms that Wu arguably suffered

as a result of his resistance, we could not conclude that the

record compels a finding of past persecution. True, in 1992, Wu

was fined 5000 renminbi (which, according to the Government,

amounts to roughly $800 today) for fathering an unsanctioned second

child. But economic disadvantage must be severe and deliberate to

rise to the level of persecution, see Vanchurina v. Holder, 619

F.3d 95, 99 (1st Cir. 2010); In re T-Z-, 24 I. & N. Dec. 163, 173-

75 (BIA 2007), and the record does not indicate that the fine

caused Wu severe economic disadvantage.

Wu seems to argue that, if we refuse to hold that the

forced abortion and sterilization of his wife amounts to

persecution of him, we will somehow be punishing individuals like

his wife, who may plan to follow their spouses in fleeing alleged

persecution and seeking asylum in the United States. But this

argument was never made before the BIA and thus is beyond our

review. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004)

("[T]heories not advanced before the BIA may not be surfaced for

the first time in a petition for judicial review . . . .").

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D. Well Founded Fear of Future Persecution

Finally, Wu claims to have a well founded fear of future

persecution in response to either his resistance to China's

coercive population control program or his illegal departure. The

BIA concluded otherwise, and we cannot say that the record compels

the contrary conclusion.

1. Resistance to Coercive Population Control Program

In rejecting Wu's claim that he has a well founded fear

of future persecution as a result of his resistance to China's

coercive population control program, the BIA observed that Wu

remained in China for nine years without harm after his last

encounter with family planning officials, which occurred at the

time of his wife's forced sterilization. Wu now attacks that

observation as "ludicrous" and asks what further action could have

been expected of him. Wu seems to miss the point. The BIA was not

chastising Wu for failing to offer further resistance to the

population control program. Rather, the BIA was explaining that

Wu's alleged fear of future persecution for the resistance he did

offer was not well founded in light of the Chinese government's

apparent lack of interest in Wu during the nine years between his

resistance and departure. Wu's evidence falls short of compelling

the contrary conclusion.

Wu points out that the record contains a 2008 State

Department report that documents the abuse of a prisoner who

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protested China's family planning program. And Wu notes that the

record also includes testimony of an individual who, in a 1998

hearing before the House Subcommittee on International Operation

and Human Rights, expressed fear of returning to China because she

had violated the one-child policy. But in light of the fact that

the record also reflects that Wu lived in China for nearly a decade

without incident, we cannot say that these sources compel the

conclusion that Wu has a well founded fear of future harm. See, 

e.g., Pan v. Gonzales, 445 F.3d 60, 62 (1st Cir. 2006) (finding no

well founded fear of persecution where noncitizen "remained in

China for two and a half years following the [alleged resistance],

[and] was never punished or persecuted because of her resistance").

2. Illegal Departure

Wu claims that he fears future persecution, in the form

of arrest and loss of income, in response to his illegal departure.

The BIA concluded that Wu failed to demonstrate either that he was

likely to be harmed or that any harm he suffered would rise to the

level of persecution. Wu says that the IJ failed to comply with

the Second Circuit's mandate to consider the evidence from Wu's

prior removal proceedings. But nothing in the BIA's decision

indicates that it failed to consider any of Wu's evidence.

That evidence consists partly of Wu's own testimony. It

is true that, at his initial hearing, he said that based on the

experiences of his relatives and friends in New York, those who

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departed China illegally would be fined and imprisoned upon their

return. And admittedly, at his remand hearing, Wu reiterated that

he feared that he would be arrested and sentenced and that his

family would be harmed physically, emotionally, and financially.

But the record neither indicates that the BIA ignored Wu's

testimony, nor compels the conclusion that his fears are well

founded or that any future harm would amount to persecution.

As Wu points out, in addition to his testimony, the

evidence includes 1998 and 2000 State Department reports

documenting the poor conditions and abuse that mar the facilities

in which those being repatriated are sometimes detained. But while

these reports may well support a conclusion contrary to the BIA's,

we cannot say that they compel that conclusion, at least in part

because of their out datedness.

III. Conclusion

For the reasons set forth above, Wu's petition for review

is DENIED.

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