Boqin Wu v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOQIN WU,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-71338
Agency No. A079-615-694
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2018**
San Francisco, California
Before: TASHIMA, BERZON, and CHRISTEN, Circuit Judges.
Boqin Wu, a citizen of China, petitions for review of a decision of the Board
of Immigration Appeals (BIA) denying his application for withholding of removal.
Wu’s application was based, in part, on his wife’s allegedly involuntary
FILED
MAY 03 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 3 --

sterilization by local officials. Because the BIA erred in holding that Wu’s wife’s
sterilization was not involuntary, we grant the petition and remand.
1. For withholding of removal, “a person who has been forced
to . . . undergo involuntary sterilization . . . shall be deemed to have been
persecuted on account of political opinion.” 8 U.S.C. § 1101(a)(42); see id.
§ 1231(b)(3)(A).
The Immigration Judge (IJ) found that Wu failed to prove “whether or not
the alleged sterilization was voluntary or involuntary,” and so could not establish
persecution on the basis of political opinion. As the government acknowledges,
however, neither the BIA nor the IJ made a finding that Wu’s testimony was not
credible. No other evidence contradicted his testimony on that point. Therefore,
we must accept as true his clear testimony, that his wife’s sterilization was
involuntary. Zhiqiang Hu v. Holder, 652 F.3d 1011, 1013 n.1 (9th Cir. 2011). The
BIA’s contrary conclusion was not supported by substantial evidence. See id. at
1019–20.
2. We remand for the BIA to apply properly the clear error standard
governing the IJ’s factual findings, to remand to the IJ if more fact-finding is
2

-- 2 of 3 --

needed as to whether Wu’s wife’s sterilization was “forced,”1 see Ridore v. Holder,
696 F.3d 907, 919 (9th Cir. 2012), or to resolve Wu’s claim on a different ground.
As to the last option, the government may well be correct in its argument before
this court that Wu’s family planning claim will ultimately fail because he himself
has not demonstrated his resistance to, or persecution stemming from, his wife’s
involuntary sterilization. See Matter of J-S-, 24 I. & N. Dec. 520, 535 (BIA 2008);
see also Nai Yuan Jiang v. Holder, 611 F.3d 1086, 1094 (9th Cir. 2010). But the
BIA did not so hold. Any such determination is appropriately left for the agency in
the first instance. See INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002) (per
curiam).
Petition GRANTED; REMANDED.
1 See Matter of T-Z-, 24 I. & N. Dec. 163, 169 (BIA 2007) (holding that an
abortion or sterilization is not “forced” under the INA unless “the threatened harm
for refusal would, if carried out, be sufficiently severe that it amounts to
persecution”). Neither our court nor any other has directly addressed whether the
BIA’s interpretation of “forced” in Matter of T-Z- is valid. We note, as did the
BIA in Matter of T-Z-, the tension between the BIA’s interpretation of the INA
with regard to “forced” abortions and sterilizations and our own. Compare id. at
169–70, with Zi Zhi Tang v. Gonzales, 489 F.3d 987, 991 (9th Cir. 2007). But
neither party briefed whether the BIA’s interpretation nonetheless meets the
standards for agency statutory interpretations, see Nat’l Cable & Telecommc’ns
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005), and we do not reach
the issue.
3

-- 3 of 3 --