                                                                           FILED
                            NOT FOR PUBLICATION                             APR 29 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



RUI SHENG ZHU,                                   No. 07-70102

              Petitioner,                        Agency No. A095-686-255

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

              Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                       Argued and Submitted October 9, 2009
                       Submission Vacated October 14, 2009
                         Submitted November 30, 2009**
                               Pasadena, California

Before: HALL and TALLMAN, Circuit Judges, and LAWSON, *** District Judge.




        *
             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 additional oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable David M. Lawson, United States District Judge for the
Eastern District of Michigan, sitting by designation.
      The parties are familiar with the facts of the case, so we do not repeat them

here. We have jurisdiction pursuant to 8 U.S.C. y 1252, and we deny the petition

for review.

      The Board of Immigration Appeals ('BIA') treated Rui Sheng Zhu's

testimony as credible but affirmed the finding that he failed to establish past

persecution, and--despite his subjective fear of harm--that he had not established

an objectively well-founded fear of future persecution. Liµewise, the BIA held that

he had failed to establish a claim for withholding of removal or protection under

the United Nations Convention Against Torture ('CAT'). The petition must be

denied if the BIA's determinations are 'supported by reasonable, substantial, and

probative evidence on the record considered as a whole.' INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992) (citation omitted). We thinµ that standard is met here.

      The dissent argues that, but for his family relationship, Zhu would not have

been pursued by the Chinese government. Whether or not this is true, the BIA's

finding that Zhu's family was subject to prosecution, rather than persecution, is

supported by substantial evidence. See Abedini v. INS, 971 F.2d 188, 191 (9th Cir.

1992) (stating that prosecution under criminal laws of general applicability is not

persecution unless the prosecution, as applied to the petitioner, is especially

unconscionable or a mere pretext for persecution on account of a protected


                                           2
ground); Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996) ('Education, although

undeniably important, is a matter of governmental policy rather than a fundamental

right.' (quoting Faddoul v. INS, 37 F.3d 185, 189 (5th Cir. 1994))).

      Our personal disagreement with a foreign law that imputes a debt to an

entire family cannot be sufficient to change prosecution into persecution.

Furthermore, we cannot grant asylum to the members of all families who owe

money to the Chinese government; owing a debt under the even-handed

application of foreign law is not a protected ground. See 8 U.S.C.

yy 1158(b)(1)(B)(i) and 1231(b)(3)(A); see also Ochoa v. Gonzales, 406 F.3d

1166, 1172 (9th Cir. 2005) (persecution as a result of a debt was not on account of

a protected ground). Nor can we grant asylum because a person faces prosecution

for illegal departure upon their return to their home nation. Li, 92 F.3d at 988.

      Zhu has, therefore, failed to establish past persecution or a well-founded fear

of future persecution on account of a protected ground, and his application for

asylum and withholding of removal must be denied. 8 C.F.R. yy 1208.13(b) and

1208.16(b). As to protection under CAT, Zhu has failed 'to establish that it is

more liµely than not that he . . . would be tortured' if he is returned to China. Id.

y 1208.16(c)(2).

      PETITION DENIED.


                                           3
                                                                               FILED
Zhu v. Holder, No. 07-70102                                                     APR 29 2010

                                                                            MOLLY C. DWYER, CLERK
       David M. Lawson, District Judge, dissenting:               Because in . my T OF AP PE A LS
                                                                           U.S CO UR view




substantial evidence does not support the BIA's conclusion that the petitioner failed

to demonstrate a well-founded fear of future persecution on account of membership

in a particular social group (i.e., his family), I respectfully dissent from the majority's

decision to deny the petition for review.

       The BIA acµnowledged that a family could constitute a social group within the

meaning of 8 U.S.C. y 1101(a)(42), but it determined in this particular case that the

family members were sought by the government primarily on account of their unpaid

restitution debt, and not because of their membership in the family. However, that

conclusion ignores the obvious point that but for the petitioner's membership in the

family, the Chinese government could not use him as a tool to extract payment of the

debt from his parents, and the methods used to coerce payment amount to persecution,

as our precedents have defined it.

       Zhang v. Gonzales, 408 F.3d 1239 (9th Cir. 2005), provides significant

guidance. In that case, a forcibly sterilized father made arrangements to smuggle his

minor daughter into the United States after the family could not afford to pay a 23,000

RMB fine. The fine was imposed under a law of general applicability that prohibited

the family from birthing a third child. As a result of their inability to pay the fine, the



                                            -1-
family suffered adverse economic consequences, including confiscation of family

property, threatened eviction, and denial of educational opportunities to each of their

children. In addition, as a result of forcible sterilization, the father could not return

to his previous worµ.      The IJ dismissed these consequences as insufficient to

constitute 'persecution,' theorizing that the petitioner could have attended a public

school instead, or that her family could have arranged for payment of the fine if they

had wished to do so. This court disagreed and concluded that the IJ's findings were

not supported by substantial evidence because the record did not show that (a) non-

public education was available to the petitioner; and (b) a relative who paid for the

petitioner to come to the United States would be willing to pay the family's fine, and

the smuggling expenses he covered would have been sufficient to cover the fine. The

court specifically stated that 'the IJ lacµed substantial evidence for concluding that the

economic deprivation Ms. Zhang suffered (including her inability to pursue an

education) did not constitute persecution.' Id. at 1247. The same conclusion is

warranted here.

      In Zhang, this court stated certain principles of law that apply here as well: that

'deliberate imposition of substantial economic disadvantage can amount to

persecution,' ibid. (citing Baballah v. Ashcroft, 367 F.3d 1067, 1075 (9th Cir. 2004),

and Gonzales v. INS, 82 F.3d 903, 910 (9th Cir. 1996))); that '[d]enial of access to



                                           -2-
educational opportunities available to others on account of a protected ground can

[also] constitute persecution,' id. at 1247-48 (citing Bucur v. INS, 109 F.3d 399 (7th

Cir. 1997)); that 'acts of violence against close associates [as opposed to the petitioner

himself] can suffice to establish a well-founded fear of persecution,' id. at 1249

(citing Nagoulµo v. INS, 333 F.3d 1012, 1017 (9th Cir. 2003)); that individuals

returned to China 'are generally fined anywhere between ü600 and ü6,000 and . . .

many are also subjected to lengthy administrative detention or reeducation through

labor camps,' id. at 1249-50 (citing U.S. Dep't of State Country Reports on Human

Rights Practices for 2000 (China) (released Feb. 23, 2001) (quotations omitted;

alterations in the original)); and that the BIA should 'consider the cumulative impact

of all of the hardships . . . [when considering] whether [a petitioner] has a well-

founded fear of persecution upon return,' id. at 1249.

      I find striµing similarities in this case. As in Zhang, Zhu was a victim of the

authorities' attempts to collect a civil fine. Liµe Zhang's family, Zhu's family was

economically ruined; in fact, the fine the Zhu family is facing is several times greater

than the fine imposed on Zhang's family (23,000 RMB in Zhang versus 100,000-

200,000 RMB in this case). The Zhus' property was confiscated; they could not find

worµ; their house was given to the victim's family; and in addition to the fine, they

incurred other debt much beyond their ability to repay. See Letter of Heng-Jian Zhu



                                           -3-
and Mei-Ru Chen, AR 169, 178. The Zhu family attempted to plead for mercy, but

the government would not relent. See AR 169. And liµe Zhang, Zhu was expelled

from middle school.

      It is true that Zhu did not directly witness violence against his family members.

However, 'persecution' is not limited to physical suffering; it may 'come in the form

of threats, harassment, or mental, emotional, and psychological harm.' See Nahrvani

v. Gonzales, 399 F.3d 1148, 1159 (9th Cir. 2005) (citing Knezevic v. Ashcroft, 367

F3d 1206, 1211 (9th Cir. 2004)). The petitioner in Zhang did not face direct physical

violence either.

      In this case, both of Zhu's parents were arrested four or five times, with each

detention lasting fifteen days. Compare with Ndom v. Ashcroft, 384 F.3d 743, 752

(9th Cir. 2004), superseded by statute on other grounds, Real ID Act of 2005, Pub.

L. No. 109-13, 119 Stat. 231, as recognized in Parussimova v. Muµasey, 533 F.3d

1128, 1133 (9th Cir. 2008) (holding that the petitioner's twenty-five-day detention,

'including nineteen consecutive days,' constituted persecution even in the absence of

physical abuse). There is evidence from the petitioner that Zhu's father was beaten

during one of the detentions. The BIA found the petitioner credible. Moreover, there

are two outstanding arrest warrants against the petitioner himself, issued when the

petitioner was just a 14-year-old boy. If the petitioner is deported, he probably will



                                         -4-
be detained on these outstanding warrants and might face the additional consequence

of the exit control laws described in Zhang. Although there is no evidence of

continuing harm from the victim's family, the incident of the victim's family placing

the victim's body at the front porch of the Zhus' house and destroying the house

serves as evidence of past persecution, which is relevant to establishing the

petitioner's reasonable fear of returning to China. AR 169 (Zhu's father's letter

recounting the incident to Fuzhou City Mid Level People's Court and stating that the

police merely asµed the victim's family to bury the body or else be responsible for

'fee of µeeping the body in the crematory.').

       I believe this evidence in the aggregate is sufficient to establish the petitioner's

reasonable fear of persecution should he return to China. The persecution would

result from the petitioner's membership in a family in which people other than himself

were sought by the Chinese government to enforce laws of general applicability. In

other words, it is not the petitioner's own conduct that would bring the government's

wrath down upon him.         Rather, it would be the happenstance of his family

membership, and only that. See Popova v. INS, 273 F.3d 1251, 1257-58 (9th Cir.

2001) (stating that persecution is ''on account of' a statutorily protected status where

an applicant holds such a status and her persecutors threatened [him or her] 'because

of' it').



                                            -5-
      The BIA reasoned that the persecution visited upon the petitioner was not due

to his membership in his family, but because his family could not pay the fine, and

observed that if the fine were paid, the persecution would stop.            From that

observation, the BIA concluded that the petitioner's persecution was due to an unpaid

debt and not because of his membership in his nuclear family. That discussion might

be relevant if the debt were the petitioner's, or if there were some evidence that he

could extinguish the debt himself. But there is no such evidence. The record

establishes without contradiction that the family owes the debt, and the petitioner is

subject to persecution solely because he is a member of that family. His membership

in the family is something he cannot change; that characteristic is 'immutable.' See

Thomas v. Gonzales, 409 F.3d 1177, 1187, 1189 (9th Cir. 2005) (en banc), vacated

on other grounds, 547 U.S. 183 (2006) (holding that 'a family may constitute a social

group for the purposes of the refugee statutes,' and a petitioner can establish

persecution where he was 'targeted on account of [his] shared, immutable

characteristic, namely, [his] familial membership'); Lin v. Ashcroft, 377 F.3d 1014,

1028 (9th Cir. 2004) ('Liµe our sister circuits, we recognize that a family is a social

group.') (citing Hernandez-Montiel v. INS, 225 F.3d 1084, 1092 (9th Cir. 2000)).

      The BIA's decision was predicated on the absence of evidence establishing the

petitioner's well-founded fear of future persecution on account of membership in the



                                          -6-
social group that consists of his family. Because, in my view, the record plainly

shows otherwise, I would grant the petition for review.




                                        -7-
