                               NOT FOR PUBLICATION                       FILED
                          UNITED STATES COURT OF APPEALS                  FEB 23 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                                FOR THE NINTH CIRCUIT


 DENGHUI MAO,                                        No. 12-74232

            Petitioner,                              Agency No. A088-108-759

   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: PREGERSON, WARDLAW, and HURWITZ, Circuit Judges.

        Denghui Mao, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ (“BIA”) denial of his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     Substantial evidence does not support the BIA’s determination that

Mao failed to establish past persecution based on his “other resistance” to China’s

coercive population control program. “When considering an asylum claim, we

consider cumulatively the harm an applicant has suffered.” Chand v. INS, 222

F.3d 1066, 1074 (9th Cir. 2000). The BIA addressed the forced sterilization of

Mao’s wife in 1992 but failed to consider Mao’s experiences with China’s coercive

population control program over the previous decade. Even though the BIA found

Mao credible on the claim of “other resistance,” the BIA failed to address evidence

that: (1) despite officials forcing Mao’s wife to wear an IUD after the birth of their

first child, Mao and his wife violated China’s one-child policy by having a second

child without informing family planning officials; (2) Mao told officials that he

would not comply with sterilization orders; and (3) Mao argued with officials for

sterilizing his wife, even though it was too late to prevent the procedure. To

properly analyze Mao’s claim, the BIA must consider whether these events

cumulatively establish “other resistance” to China’s coercive population control

program. See Jiang v. Holder, 611 F.3d 1086, 1094–95 (9th Cir. 2010) (holding

that evidence of “persistent defiance of [China’s] coercive population control

policy” compelled a finding of “other resistance”).

      The BIA similarly failed to address the “totality of the circumstances” in

determining that Mao was not persecuted. Id. at 1095. In addition to the forced


                                          2
sterilization of Mao’s wife, which is “proof of the fact that [Mao] was persecuted,”

id., other evidence supported Mao’s claim of persecution. First, Mao was forced to

pay a substantial fine after the birth of his second child in 1987. See id. at 1095–96

(finding that the payment of a substantial fine supported a finding of persecution);

Zhang v. Gonzales, 408 F.3d 1239, 1247–48 (9th Cir. 2005) (same). Second,

officials forced Mao’s wife to wear an IUD and present herself for gynecological

examinations, even though Mao and his wife wanted to have more children. Third,

officials came to Mao’s home on multiple occasions, including when his wife was

“still weak in health” four days after the birth of their second child, to enforce

compliance with population control policies. Finally, Mao and his wife fled their

home and went into hiding to “escap[e]” sterilization, for they “still wanted to have

one more child.” The BIA erred by failing to consider whether the aggregate effect

of these events rises to the level of persecution. We therefore grant the petition

and remand to the BIA to determine whether the evidence of Mao’s experiences

cumulatively establishes “persecution” for “other resistance” to China’s coercive

population control program.

      2.     Substantial evidence supports the BIA’s determination that Mao’s

testimony about persecution for his opposition to the sale of land was not credible.

Under the REAL ID Act, which applies to Mao’s application, credibility

determinations are made “on the basis of the ‘totality of the circumstances, and all


                                           3
relevant factors.’” Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010)

(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Mao’s testimony and written statement

provided inconsistent accounts of the disputed land sale, the circumstances of

Mao’s arrests, and other key facts related to his claim. Mao provided no

explanation for these inconsistencies. Substantial evidence therefore supports the

BIA’s adverse credibility determination.1

      3.    Mao’s removal hearing did not violate his due process rights. We find

no basis to conclude that his removal hearing was “so fundamentally unfair that

[he] was prevented from reasonably presenting his case.” Padilla-Martinez v.

Holder, 770 F.3d 825, 830 (9th Cir. 2014) (citation and internal quotation marks

omitted).

      PETITION FOR REVIEW GRANTED; REMANDED.




      1
         Because substantial evidence supports the BIA’s adverse credibility
determination as to the land transaction claim, we do not address whether, if Mao
had testified credibly, he would have established past persecution on account of his
political opinion.

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