                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 16 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

XIN NING HE,                                     No. 10-72130

              Petitioner,                        Agency No. A088-322-601

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

              Respondent.


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

                            Submitted May 14, 2014**
                             San Francisco, California

Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.

       Xin Ning He petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) denying his applications for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Substantial evidence supports the BIA’s decision that He did not establish

past persecution or a well-founded fear of future persecution on account of his

resistance to China’s family-planning policies. See Nai Yuan Jiang v. Holder, 611

F.3d 1086, 1093 (9th Cir. 2010); Matter of J-S-, 24 I. & N. Dec. 520, 542 (A.G.

2008). He presented no evidence of persecution other than his wife’s forced

sterilization, which does not on its own compel the conclusion that He suffered

past persecution. Ming Xin He v. Holder, No. 09-73516, 2014 WL 1491882, at *3

(9th Cir. Apr. 17, 2014).

      Nor does the record compel the conclusion that He demonstrated a well-

founded fear of future persecution when he lived in China for almost ten years after

his wife’s forced sterilization without experiencing any persecution. See

Rodriguez-Rivera v. U.S. Dep’t of Immigration & Naturalization, 848 F.2d 998,

1006 (9th Cir. 1988) (per curiam) (upholding denial of asylum where petitioner

“continued to live undisturbed” in his home country for two months). Moreover,

He testified that his wife, who stayed in China after he left, has not suffered any

further harm. See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (noting “[a]n

applicant’s claim of persecution upon return is weakened, even undercut, when

similarly-situated family members continue to live in the country without

incident”), superseded by statute on other grounds as stated in Ramadan v.


                                          2
Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam). Because He did not

establish his eligibility for asylum, he necessarily did not meet the “heavier burden

of proof” required for withholding of removal. Zehatye v. Gonzales, 453 F.3d

1182, 1190 (9th Cir. 2006).

      In his brief, He does not challenge the BIA’s decision that he did not show a

well-founded fear of future persecution on account of his illegal entry into the

United States. He also does not challenge the BIA’s decision that he is not eligible

for CAT relief. Therefore, He has waived appeal on those issues. See Martinez-

Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996).

      PETITION FOR REVIEW DENIED.




                                          3
