                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 18 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



LU DE ZHAO,                                      No. 08-70262

              Petitioner,                        Agency No. A095-592-084

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

              Respondent.



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

                            Submitted November 16, 2011 **
                               San Francisco, California

Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.

       Petitioner Lu De Zhao, a native and citizen of the People’s Republic of

China, petitions for review of the Board of Immigration Appeal’s (BIA) final order

denying her application for asylum. Because the parties are familiar with the

factual and procedural history of this case, we repeat only those facts necessary to


       *     This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
resolve the issues raised on appeal. We have jurisdiction pursuant to 8 U.S.C.

§ 1252, and we deny Zhao’s petition for review.

      On August 6, 2002, Zhao filed her initial application for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT) based on alleged persecution of her family after her parents violated

China’s family planning policy by having a second child, Zhao’s brother. After the

immigration judge (IJ) and BIA denied her application, Petitioner appealed to the

Ninth Circuit. See Zhao v. Gonzales (Zhao I), 143 F. App’x 906 (9th Cir. 2005).

The court denied her petition as to her withholding of removal claim and found her

CAT and religious persecution claims waived. Id. at 906–07. The court remanded

the asylum claim back to the IJ to make a new determination in light of Zhang v.

Gonzales, 408 F.3d 1239 (9th Cir. 2005). On remand, the IJ again denied Zhao’s

asylum application and the BIA affirmed.

      We conclude that substantial evidence supports the IJ’s factual finding that

the hardships Zhao faced did not rise to the level of persecution. See Zhang, 408

F.3d at 1244. We have declined to extend automatic asylum eligibility to the child

of a parent who was forcibly sterilized, and we require that the child show that he

or she suffered hardships that rise to the level of persecution. Id. at 1245–47. On

remand, the IJ properly considered the “individual and cumulative effects of the


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hardships suffered by Zhao, including economic deprivation and harm to her

family.” See Zhao I, 143 F. App’x at 906. The record shows that economic effects

on the Zhao family were limited to a period less than a year between 1982 to 1983,

after which both of Zhao’s parents were employed, recovered their full salary, and

did not face any fines. See Gormley v. Ashcroft, 364 F.3d 1172, 1178–80 (9th Cir.

2004) (“[M]ere economic disadvantage alone does not rise to the level of

persecution.”) (citations omitted). Similarly, her parents’ decision to give birth to

her brother at a private hospital instead of the government-run hospital for fear of

reprisal did not lead to significant economic effects on Zhao. As to harm to Zhao’s

brother, the record does not compel the conclusion that his disability, arising from

complications at birth, or subsequent harassment on account of his disability were

caused by China’s one child policy. Finally, evidence in the record shows that

Zhao’s parents were not singled out and punished for their violation. Instead the

family received several benefits not afforded to others, including subsidized

housing and opportunities for Zhao’s father to travel abroad as a visiting scholar.

Moreover, Zhaos’ fear of future persecution based on the one child policy is

speculative because she does not have any children and is not married. The record

does not compel a finding that the hardships rose to the necessary level to establish

persecution or that Zhao has established a well-founded fear of future persecution.


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INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992). We affirm the BIA’s

denial of Zhao’s asylum claim.

      As to Zhao’s claims that she was improperly denied withholding of removal

and that she suffered religious persecution, we hold that these claims are barred by

the limited scope of the Zhao I remand. “[U]nder the law of the case doctrine, one

panel of an appellate court will not as a general rule reconsider questions which

another panel has decided on a prior appeal in the same case.” Merritt v. Mackey,

932 F.2d 1317, 1320 (9th Cir. 1991) (quotation marks and citation omitted). We

decline to do so here.

      PETITION DENIED.




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