                                                                              FILED
                            NOT FOR PUBLICATION                               APR 18 2014

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



                            FOR THE NINTH CIRCUIT


YUANKU LI,                                       No. 11-70473

              Petitioner,                        Agency No. A099-456-725

  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 March 14, 2014
                           San Francisco, California

Before: FARRIS, TASHIMA, and McKEOWN, Circuit Judges.

       Yuanku Li petitions for review of the removal order entered against him by

the Board of Immigration Appeals. We have jurisdiction over the petition under 8

U.S.C. § 1252(a) and affirm the BIA’s removal order. The BIA and IJ’s

determinations of legal questions are reviewed de novo. Ali v. Holder, 637 F.3d




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1025, 1028 (9th Cir. 2011). Their factual findings are reviewed for substantial

evidence. Id. at 1028-29. Under the substantial evidence standard, “we may

not reverse unless we determine that any reasonable factfinder would have been

compelled to reach that conclusion.” Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th

Cir. 2007) (en banc).

      At the time of Li’s application, spouses of women forced to undergo

abortion were automatically eligible for asylum. See In re C-YZ-, 21 I. & N. Dec.

915 (BIA 1997). Two years after the filing of the application, the Attorney General

issued an opinion that held spouses were no longer entitled to automatic eligibility.

Matter of J-S-, 24 I. & N. Dec. 520 (BIA 2008). Li argues that the retroactive

application of the Attorney General’s opinion is unwarranted.

      Retroactive application of an administrative rule change made through

adjudication is determined on a case-by-case basis according to five factors: “‘(1)

whether the particular case is one of first impression, (2) whether the new rule

represents an abrupt departure from well established practice or merely attempts to

fill a void in an unsettled area of law, (3) the extent to which the party against

whom the new rule is applied relied on the former rule, (4) the degree of the

burden which a retroactive order imposes on a party, and (5) the statutory interest

in applying a new rule despite the reliance of a party on the old standard.’”


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Garfias-Rodriguez, 702 F.3d 504, 518 (9th Cir. 2012) (quoting Montgomery Ward

& Co., Inc. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982)).

      The first factor exerts little weight here as its focus on issues of first

impression “may not be as well suited to the context of immigration law, where

one of the parties will always be the government.” Garfias-Rodriguez, 702 F.3d at

521. The second and third factors are linked. “If a new rule ‘represents an abrupt

departure from well established practice,’ a party's reliance on the prior rule is

likely to be reasonable.” Id. (quoting Retail, Wholesale & Dep't Store Union, AFL-

CIO v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972)). However, “these two factors

will favor retroactivity if a party could reasonably have anticipated the change in

the law such that the new ‘requirement would not be a complete surprise.’”Id.

(quoting Montgomery Ward, 691 F.2d at 1333–34).

      The Attorney General’s opinion in Matter of J-S- did not represent an abrupt

departure as the law on this issue had been in a period of flux. Before Li filed his

asylum application, both the Second and Third Circuits had questioned the BIA’s

interpretation of the statute. Lin v. U.S. Dep't of Justice, 416 F.3d 184, 191 (2d Cir.

2005); Chen v. Ashcroft, 381 F.3d 221, 226 (3d Cir. 2004). An en banc panel of the

BIA had then affirmed its earlier decision in a majority opinion. Matter of S-L-L-, 24

I. & N. Dec. 1 (BIA 2006). The Attorney General’s opinion stated that he had taken


                                           3
the case “in order to provide a final administrative ruling on a statutory question that

has divided the Federal courts of appeals.” Matter of J-S-, 24 I. & N. Dec. 520. This

interpretative history indicates that the change could have been reasonably anticipated.

Li also did not incur significant detrimental reliance on the previous rule as he

received an opportunity to correct any omissions in his application at the beginning

of his hearing before the IJ. Li presents no other evidence of detrimental reliance on

the previous rulings of the BIA. These two factors weigh in favor of the government

as the change in law should not have come as a complete surprise and Li did not suffer

significant damage through detrimental reliance on the existing precedent.

      The fourth factor heavily weighs in favor of Li, as deportation is “a substantial

burden that weighs against retroactive application of an agency adjudication.”

Garfias-Rodriguez, 702 F.3d at 523 (internal quotation marks omitted). The fifth

factor weighs in favor of the government as “non-retroactivity impairs the uniformity

of a statutory scheme, and the importance of uniformity in immigration law is well

established.” Id. Overall, a clear majority of the relevant factors weigh in favor of the

government. Retroactive application of Matter of J-S- to Li’s application is warranted.

      Li argues that the IJ and BIA committed legal error by failing to consider

evidence of Mrs. Liu’s forced abortion and the threatened sterilization of Li during its

determination of whether Li had suffered past persecution. The IJ and the BIA “are


                                           4
not free to ignore arguments raised by a petitioner.” Sagaydak v. Gonzales, 405 F.3d

1035, 1040 (9th Cir. 2005). They are not, however, required to “write an exegesis on

every contention.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (quoting

Lopez v. Ashcroft, 366 F.3d 799, 807 n. 6 (9th Cir.2004)). The BIA’s opinion shows

that it considered the evidence of Mrs. Liu’s forced abortion. The BIA noted that Mrs.

Liu’s abortion was “proof of persecution to [Li]” but found that under a totality of the

circumstances, this evidence was not sufficient to constitute past persecution. The BIA

did not specifically mention that Li was threatened with sterilization, but it did note

that he was not arrested or detained for any substantial period of time. In fact, Li’s

encounter with the authorities was limited to a single day and a single threat. A

reasonable factfinder could conclude that Li did not suffer past persecution. The BIA

did not commit legal error as its opinion shows that it reviewed the evidence of past

persecution that Li presented but rejected it as insufficient.

      Li argues that substantial evidence does not support the BIA’s determination

that Li had not established an objectively reasonable fear of future persecution. To

establish a well-founded fear of future persecution, an asylum applicant must show

that his or her fear is “both subjectively genuine and objectively reasonable.” Sael v.

Ashcroft, 386 F.3d 922, 924 (9th Cir. 2004). The objective requirement can be

fulfilled “either through the production of specific documentary evidence or by


                                           5
credible and persuasive testimony.” Duarte de Guinac v. INS, 179 F.3d 1156, 1159

(9th Cir. 1999). A totality of the circumstances test is used to determine whether a

well founded fear of future persecution exists. Ahmed, 504 F.3d at 1191.

      Li’s claim of a well founded fear of future persecution rested on his testimony.

The IJ determined that Li’s testimony on his objectively reasonable fear of future

persecution was not credible. Under the REAL ID Act, the IJ may consider any

relevant factor, including inconsistencies and omissions, in determining whether an

applicant’s testimony is credible. Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir.

2010). The IJ must “provide specific and cogent reasons in support of an adverse

credibility determination.” Id at 1044. The IJ emphasized several specific reasons for

the adverse credibility finding. First, Li had not mentioned his period of hiding in the

furniture factory in his initial application and had not corrected his application when

given the opportunity to do so. Second, Li was able to obtain a passport while he was

allegedly in hiding. Third, Li’s parents had not faced repercussions unlike the families

of other Chinese dissidents. Under the REAL ID Act, these inconsistencies are

significant enough to justify an adverse credibility determination. The first two

inconsistencies are directly relevant to determining whether the Chinese authorities

continued to pursue Li after his brief detention. Once Li’s testimony is discounted due

to the adverse credibility determination, there is insufficient evidence in the record to


                                           6
compel the conclusion that Li possesses an objectively reasonable fear of future

persecution.

      In order to qualify for withholding of removal, an asylum applicant must

establish that “it is more likely than not that the alien will be persecuted if deported.”

Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996). This test is more demanding than the

asylum eligibility one. Therefore, an asylum applicant’s failure to establish asylum

eligibility “necessarily results in a failure to demonstrate eligibility for withholding

of deportation as well.” Id. Li has failed to establish asylum eligibility and thus has

also failed to qualify for withholding of removal.

      Li argues that he qualifies for relief under the Convention Against Torture as

he is more likely than not to be tortured if he is returned to China. Evidence of past

torture is a critical factor for relief under CAT. See Edu v. Holder, 624 F.3d 1137,

1145 (9th Cir. 2010). Substantial evidence supported the BIA’s conclusion that Li had

not experienced past persecution. This factor does not favor Li’s claim for relief under

CAT. In addition, the 2007 U.S. State Department Country Conditions report on

China notes that there are “sporadic reports of violations of citizens’ rights by local

officials” but also states that the Chinese national government has instructed local

officials to resolve disputes peacefully and to protect citizens’ rights. This evidence

does not indicate that Li is more likely than not to be tortured if he is returned to


                                            7
China. A reasonable factfinder could therefore conclude that it was not likely that Li

would be tortured if he was returned to China.

      Petition for review DENIED.




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