                            NOT FOR PUBLICATION                            FILED
                   UNITED STATES COURT OF APPEALS                           FEB 04 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




QIAOLI ZHENG,                                    No. 12-73436

              Petitioner,                        Agency No. A075-822-495

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,

              Respondent.



QIAOLI ZHENG,                                    No. 13-71958

              Petitioner,                        Agency No. A075-822-495

 v.

LORETTA E. LYNCH, Attorney
General,

              Respondent.


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

                       Argued and Submitted January 5, 2016

        *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                  page 2
                               San Francisco, California

Before:      WALLACE, KOZINSKI and O’SCANNLAIN, Circuit Judges.

      1. “[T]o obtain judicial reversal of the BIA’s determination, [a petitioner]

must show that the evidence he presented was so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution.” INS v. Elias-

Zacarias, 502 U.S. 478, 483–84 (1992). A withholding-of-removal petition must

establish that it is “more likely than not that the alien would be subject to

persecution.” INS v. Stevic, 467 U.S. 407, 429–30 (1984). The record here

doesn’t compel a finding that it is more likely than not Zheng would be persecuted

if removed to China or that the Chinese government would torture her or acquiesce

in her torture. Zheng presented two anecdotal instances of a forced sterilization

and a forced abortion. But the record indicates that in most instances violations of

China’s one-child policy result in financial penalties. Zheng didn’t produce

evidence showing that any such fees would result in more than a “moderate

economic impact.” In re J-W-S, 24 I. & N. Dec. 185, 191 (BIA 2007). Thus the

Board of Immigration Appeals didn’t commit reversible error in denying Zheng’s

application for withholding of removal.
                                                                                page 3
      2. A motion to remand is subject to the same requirements as a motion to

reopen. Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987). “A motion to

reopen proceedings shall not be granted unless it appears to the Board that

evidence sought to be offered is material and was not available and could not have

been discovered or presented at the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1).

The BIA didn’t abuse its discretion in determining that the documents Zheng

presented were previously available. Most of these documents predate Zheng’s

immigration court hearing. The one new document, the 2010 Human Rights

Report, doesn’t provide any additional, material information that wasn’t already

reflected in the 2009 Human Rights Report.


      3. Even if counsel had performed differently and submitted the additional

evidence presented by Zheng in her motion to reopen, the additional evidence

wouldn’t have undermined the BIA’s original conclusion. Few pages in these

additional documents are related directly to Zheng’s case. Only a handful address

whether U.S. born children are counted toward the one-child policy. Moreover,

even these documents assert that violations of the one-child policy result in fines,

and advise sterilization only for the couple that “decide[s] not to give birth to more

children.” These additional documents fail to show it is more likely than not
                                                                                page 4
Zheng would be forcefully sterilized. Because Zheng can’t establish prejudice

with this additional evidence, she couldn’t have prevailed in her ineffective

assistance of counsel claim. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th

Cir. 2003). Therefore, the BIA didn’t abuse its discretion in denying the motion to

reopen.


      DENIED.
