                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 29 2015

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



                            FOR THE NINTH CIRCUIT


QIANG DONG, AKA Lijie Dong,                      No. 11-73260

              Petitioner,                        Agency No. A089-661-702

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

              Respondent.


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

                            Submitted August 6, 2015**
                             San Francisco, California

Before: PAEZ and BERZON, Circuit Judges and MORRIS,*** District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Brian M. Morris, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
      Qiang Dong, a citizen of China, petitions for review of the Board of

Immigration Appeals’ (BIA) final order of removal denying his application for

asylum, withholding of removal, and protection under the Convention Against

Torture. We grant the petition in part and deny it in part.

      1. The immigration judge’s (IJ) finding that Dong was not credible was

based on substantial evidence, as was the BIA’s affirmance. That evidence

includes: Dong’s omission from his asylum application of his wife’s alleged

forcible abortion; his subsequent evasiveness when discussing this omission during

the second hearing; the inconsistencies in his discussion of how frequently the

family planning agency sought him out; and his admission that he lied under oath

to an asylum officer in his 2008 hearing. The BIA’s determination is “conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); Kin v. Holder, 595 F. 3d 1050, 1054 (9th

Cir. 2010). None of Dong’s explanations for these inconsistencies meets that high

bar. Because Dong’s testimony is not credible, we must assess his claims based on

his documentary evidence alone. See, e.g., Almaghzar v. Gonzales, 457 F.3d 915,

922-23 (9th Cir. 2006).




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      2. To establish eligibility for asylum, a petitioner must show that he “has

suffered persecution, or has a well-founded fear of persecution on account of,

among other things, political opinion.” Ming Xin He v. Holder, 749 F.3d 792, 794

(9th Cir. 2014). Dong’s documentary evidence does not demonstrate past

persecution. Dong’s documentary evidence indicates that he and his wife had a

second child, that they were fined for violating China’s one-child policy, and that

Dong lost his job. Even if Dong could prove that his job loss was connected to the

violation of China’s one-child policy, he has not demonstrated that the economic

consequences of the fine and job loss “constitute[d] a threat to life or freedom”

sufficient to qualify as past persecution. Zehatye v. Gonzales, 453 F.3d 1182, 1186

(9th Cir. 2006); see also Ming Xin He, 749 F.3d at 796. Because Dong has not

established past persecution, there is no presumption that he has a well-founded

fear of future persecution. Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003).

      3. In his asylum application, Dong responded affirmatively to the question,

“Do you fear harm or mistreatment if you return to your home country?” Dong

also testified before the IJ that if he was returned to China he would possibly be

sterilized. Nonetheless, the IJ made no finding regarding Dong’s fear of future

persecution. In his notice of appeal to the BIA, Dong stated, “The IJ failed to




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consider the documentary evidence in finding that respondent had not established a

well-founded fear of persecution to state a claim for asylum.” Dong reiterated that

he and his wife likely would be sterilized in his supporting brief. The BIA,

however, also failed to address Dong’s fear of future persecution.

      Absent an agency finding, we cannot rule on whether Dong established a

well-founded fear of future persecution or is more likely than not to be persecuted

if he returns to China. Therefore, we remand to the BIA to determine whether

Dong is eligible for asylum or withholding of removal based on his fear of future

persecution. See Regalo-Escobar v. Holder, 717 F.3d 724, 729 (9th Cir. 2013).

      4. Dong has also failed to establish eligibility for relief under the

Convention Against Torture (CAT). When a petitioner’s testimony is found not

credible, this Court can disapprove the BIA’s decision denying CAT protection

only if it finds that the petitioner’s documentary evidence and the country reports

alone compel the conclusion that the petitioner is more likely than not to be

tortured. Shrestha v. Holder, 590 F.3d 1034, 1048-49 (9th Cir. 2010). Here, the

only documentary evidence Dong has provided regarding his potential future

torture is the United States Department of State’s Country Report on China, which

notes that in families that have two children like Dong’s, “one parent was often




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pressured to undergo sterilization.” This statement does not compel reversing the

BIA’s conclusion that Dong is ineligible for CAT protection.

      GRANTED IN PART, DENIED IN PART.

      Each party shall bear its own costs.




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