                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAY 12 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HONG WU NI,                                      No. 12-72276

              Petitioner,                        Agency No. A089-978-715

 v.                                              MEMORANDUM*

LORETTA E. LYNCH , Attorney General,


              Respondent.


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


                      Argued and Submitted October 22, 2015
                               Pasadena, California

Before: RAWLINSON and NGUYEN, Circuit Judges and PONSOR,** Senior
District Judge.

      Petitioner Hong Wu Ni, a native and citizen of the People’s Republic of

China, seeks review of a final removal order issued by the Board of Immigration


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
Appeals (“BIA”) on June 22, 2012. We have jurisdiction under section 242 of the

Immigration and Nationality Act, 8 U.S.C. § 1252 (“the Act”).

       For the reasons set forth below, we grant the petition in part, and we remand

to the BIA for reconsideration in light of our decisions in Nai Yuan Jiang v.

Holder, 611 F.3d 1086 (9th Cir. 2010), which petitioner’s attorney failed to cite

and the BIA did not address.

       Two preliminary issues may be disposed of quickly.

       First, the claims for review of the BIA’s denial of Ni’s application for

withholding of removal under section 241(b)(3) of the Act, or for protection under

the Convention Against Torture, will be dismissed. Ni raised no argument in his

opening brief asserting error in either of these decisions. These claims have

therefore been waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.

1996); see Fed. R. App. P. 28(a)(8)(a).

       Second, any argument asserting error by the Immigration Judge in his

negative assessment of Ni’s credibility is moot; the BIA assumed the petitioner’s

credibility.

       Ni’s central argument, however -- that he is eligible for asylum because he has

suffered persecution based on his resistance to China’s coercive population control

program -- warrants further review by the BIA in light of Jiang.


                                           2
      In Jiang, the court addressed an application for asylum based on facts

strikingly similar to those here and found that Jiang had established past

persecution by exhibiting “other resistance” to China’s coercive population control

program as recognized in Matter of J-S-, 24 I & N. Dec. 520 (Att’y Gen. 2008).

Jiang, 611 F.3d at 1095-96. There, as here, petitioner and his wife were not

permitted to marry officially due to their ages, the couple lived together in

violation of the law, the women in both cases were involuntarily removed from

their homes, the men were forcibly restrained to prevent them from interfering with

their wives’ removal, the women were compelled immediately upon their removal

to undergo abortions, and both couples were assessed and paid fines for violating

the law. Id. at 1089-90.

      The facts of the case now before us appear to be more serious than those

presented in Jiang. Here, petitioner physically resisted the officers at the time they

were taking his wife away and was beaten both during and after her removal.

      We now remand to the BIA to reconsider, in light of Jiang, whether

petitioner engaged in “other resistance” to China’s coercive population control

program and, if so, whether as a result of that resistance he suffered past

persecution or has a well-founded fear of future persecution based on his




                                           3
resistance. For the reasons set forth above, we dismiss petitioner’s claims for

withholding of removal or for protection under the under the CAT.

      PETITION DISMISSED in part and GRANTED in part; REMANDED.




                                          4
                                                                             FILED
Ni v. Lynch
                                                                              MAY 12 2016
No. 12-72276
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
RAWLINSON, Circuit Judge, dissenting:

        I respectfully dissent. In my view, the events recounted by Hong Wu Ni do

not rise to the level of persecution. I do not agree with the majority that the facts

of this case are similar to those we considered in Nai Yuan Jiang v. Holder, 611

F.3d 1086 (9th Cir. 2010). In Jiang, we referenced petitioner’s “persistent defiance

of the coercive population control policy,” even after the forced abortion. Id. at

1094-1095. In contrast, Ni presented no evidence of post-abortion defiance on his

part.

        Since our decision in Jiang, we have clarified that a petitioner who seeks

asylum due to his spouse’s forced abortion, “must show substantial evidence of

further persecution in support of his claims.” He v. Holder, 749 F.3d 792, 796 (9th

Cir. 2014). Because Ni presented no “evidence of further persecution,” id., the

BIA properly dismissed his appeal. As in He, no remand is warranted, considering

Ni’s failure to present sufficient evidence of persecution. See id. at 796-98.
