                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            FEB 17 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GUANGSHENG LIN,                                  No. 12-72898

              Petitioner,                        Agency No. A097-959-455

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

              Respondent.


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

                      Argued and Submitted February 3, 2016
                               Pasadena, California

Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.

      Chinese national Guangsheng Lin petitions for review of an order of the

Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration

Judge denying his application for asylum and withholding of removal.

1.    Substantial evidence supports the BIA’s determination that Lin’s

experiences in China did not rise to the level of persecution. Lin did not offer any


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
evidence of arrest, detention, or physical harm. See Jiang v. Holder, 611 F.3d

1086, 1095-97 (9th Cir. 2010); Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004)

(en banc). Lin also did not testify that he was unable to pay the fine imposed or

that it caused his family hardship. See Ming Xin He v. Holder, 749 F.3d 792, 796

(9th Cir. 2014). Without more, evidence that Lin’s wife was forced to abort a

pregnancy does not establish past persecution of him. Id. (“[A]n asylum seeker

may still present his spouse’s forced abortion as part of proof . . . of persecution.

We have recognized, however, that he must show substantial evidence of further

persecution in support of his claims.” (quotation marks and citation omitted,

omission in original)).

2.    The BIA’s conclusion that Lin’s fear of future persecution is not objectively

reasonable, however, lacks substantial supporting evidence. Lin’s testimony,

which the Immigration Judge found to be credible, established the following facts:

After having two children, Chinese family planning officials forced his wife to

abort a pregnancy; the officials then informed Lin that he or his wife “ha[d] to be

sterilized;” Lin and his wife hid at a cousin’s house until he fled China to avoid

sterilization; the officials looked for him at his parents’ house between one and

three times each year; the officials told Lin’s mother that if apprehended he would

be sterilized “for sure;” and the officials have declined to sterilize Lin’s wife,


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presumably because she will not become pregnant with Lin abroad. This “credible,

direct, and specific evidence” compels the conclusion that Lin faces a reasonable

possibility—at least a 10 percent chance—that he will be sterilized if repatriated.

Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). Lin qualifies for

asylum based on this well-founded fear. 8 U.S.C. § 1101(a)(42) (“[A] person who

has a well founded fear that he or she will be forced to [abort a pregnancy or to

undergo involuntary sterilization] . . . shall be deemed to have a well founded fear

of persecution on account of political opinion.”).

3.    The BIA did not err in denying withholding of removal. The record does not

compel the conclusion that sterilization “will happen, in the sense of being more

likely than not.” Lim v. I.N.S., 224 F.3d 929, 938 (9th Cir. 2000). “[U]nder the

circumstances of this case, the mitigating factors cited by the BIA provide

substantial evidence to mitigate the risk in this case to something below fifty

percent.” Id.

      Petition GRANTED IN PART, DENIED IN PART, and REMANDED to

the BIA to exercise its discretion whether to grant Lin asylum. The parties shall

bear their own costs.




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