Zhihui Guo v. Sessions

• Decision Date: 30 July 2018
• Docket Number: No. 15-70617,15-70617
• Citation: 897 F.3d 1208
• Parties: Zhihui GUO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

897 F.3d 1208

Zhihui GUO, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-70617

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2018—Pasadena, California

Filed July 30, 2018

Albert S. Chow (argued), Lin & Chow, Monterey Park, California, for Petitioner.

John Frederick Stanton (argued) and Sergio Sarkany, Trial Attorneys; Kiley Kane, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX0-204.

Before: Danny J. Boggs,^* Jay S. Bybee, and Paul J. Watford, Circuit Judges.

BYBEE, Circuit Judge

Petitioner Zhihui Guo is a Chinese citizen who entered the United States in 2010 on a student visa and stayed beyond its duration. He seeks review of the Board of Immigration Appeals' ("BIA") denial of his claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In mid-2010, Chinese police arrested Petitioner¹ for attending a Christian "home church," eventually beating him with a baton and detaining him for two days. Under the terms of his release, Petitioner could never again attend his home church and was required to report to the police weekly to verify his compliance.

The BIA concluded that these oppressive conditions did not rise to the level of religious persecution, portraying the harm Petitioner suffered as "a single, isolated encounter with the authorities." We are compelled to disagree. By forbidding Petitioner from attending his home church, the Chinese police prevented him from practicing his faith and did so through coercive means. The harm Petitioner suffered was therefore ongoing and, under our asylum precedent, compelled a finding of past persecution. We therefore grant the petition for review and remand to the BIA in order for it to apply the rebuttable presumption that Petitioner will experience further persecution if returned to China.

I. FACTS AND PROCEEDINGS BELOW

Petitioner was born in 1990 in Putian, a city in China's Fujian Province. He and his mother began attending a local Christian home church in September 2009, after a neighbor began sharing her beliefs with them. The congregation was comprised of about twenty members, who would meet at the lead member's home. Petitioner and his mother attended Sunday services every week, where the congregation would sing hymns, share testimonies, and pray together.

In May 2010, five police officers entered one of these services and stated that they had received reports that the congregation was conducting illegal activities. The police confiscated the Bibles, hymn books, and religious CDs and then drove the entire group to a police station. After the group was collectively processed for several hours, the police took Petitioner to an individual interrogation room.

Two police officers then asked Petitioner why he was engaging in "anti-government" activity. He responded that his group was a church and that they were not anti-government. An officer then slapped Petitioner twice in the face. He protested this treatment, telling the officer it was illegal. The officer then took out his baton and struck Petitioner eight or nine times on his arms, thighs, and back for one to two minutes. Afterwards, Petitioner could not stand by himself, and the officers brought him to a cell, where he remained for the next two days.

Petitioner's father eventually arrived at the station to bail him out, paying a 3000 RMB bond or fine. The police also required Petitioner to sign a "letter of guarantee," which informed him that he was not allowed to attend home church, that he was required to report to the police station once a week, and that he would be arrested for violating these release conditions.

After leaving the station, Petitioner went to a nearby hospital to be examined. The beating resulted in "many bruises" across his body and had "pierced" the skin on his back. Petitioner remained for only an hour at the hospital, where a doctor placed medication on his bruises but did not perform an X-ray. Petitioner was advised to rest for three days.

After his beating and detention, Petitioner began reporting to the police station every Tuesday. The process took approximately an hour each time, and the police would question him about his daily activities and who he had spoken with throughout the week. Officers would consistently "threaten" Petitioner and remind him that he "was not allowed to participate in the home church for Christianity anymore."

During this time, Petitioner and his family made preparations for him to leave China. He traveled at some point to Shanghai to acquire a U.S. student visa to study at a university in Utah. His father purchased an airline ticket for him, and in December 2010, Petitioner departed China using his Chinese passport.

After arriving in the U.S., Petitioner remained in contact with his mother, who informed him that the police came looking for him at their home after he failed to report to the police station that week. Between December 2010 and May 2011, the police came to their home five or six times in search of him. His mother also informed him that several members of their former home church, including the lead member, were still in China and were required to report to the police. Petitioner's mother did not mention whether any members had been arrested again, but there is no indication that they continued to meet as a group.

After several months in Utah, Petitioner transferred to a university in California in February 2011. He became active in a church and was baptized. But unable to afford tuition, Petitioner stopped attending school after several months.

Petitioner remained in the United States without authorization, and the Department of Homeland Security initiated removal proceedings in August 2011. He conceded removability but, with the assistance of counsel, applied for asylum, withholding of removal, and CAT relief.

An immigration judge ("IJ") held a hearing in Los Angeles in December 2012, where Petitioner testified to the events above. The IJ did not make an adverse credibility finding² but nevertheless denied Petitioner's claims for relief. The BIA affirmed the IJ's decision, and Petitioner now seeks review before this court.

II. JURISDICTION AND STANDARD OF REVIEW

"We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal." Yali Wang v. Sessions , 861 F.3d 1003, 1007 (9th Cir. 2017). Questions of law are reviewed de novo. Retuta v. Holder , 591 F.3d 1181, 1184 (9th Cir. 2010). "We review ‘denials of asylum, withholding of removal, and CAT relief for substantial evidence and will uphold a denial supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ " Yali Wang , 861 F.3d at 1007 (quoting Ling Huang v. Holder , 744 F.3d 1149, 1152 (9th Cir. 2014) ).

"We may reverse the decision of the [BIA] only if the applicant shows that the evidence compels the conclusion that the asylum decision was incorrect." Gu v. Gonzales , 454 F.3d 1014, 1018 (9th Cir. 2006). "This ‘strict standard’ precludes us from ‘independently weighing the evidence and holding that the petitioner is eligible for asylum, except in cases where compelling evidence is shown.’ " Id . at 1018–19 (quoting Kotasz v. INS , 31 F.3d 847, 851 (9th Cir. 1994) ). "We look at the totality of the circumstances in deciding whether a finding of persecution is compelled." Guo v. Ashcroft , 361 F.3d 1194, 1203 (9th Cir. 2004).

III. ANALYSIS

A. Asylum and withholding of removal

"To be statutorily eligible for asylum, [a petitioner] must show that he is a refugee." Baghdasaryan v. Holder , 592 F.3d 1018, 1022–23 (9th Cir. 2010) (citing 8 U.S.C. § 1158(b)(1) ). "A refugee is one who is ‘unable or unwilling to avail himself or herself of the protection of [his or her native] country because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ " Id . at 1023 (first alteration in original) (quoting 8 U.S.C. § 1101(a)(42)(A) ). "The bar for withholding of removal is higher; an applicant ‘must demonstrate that it is more likely than not that he would be subject to persecution’ on one of" these same five protected grounds. Ling Huang , 744 F.3d at 1152 (quoting Al-Harbi v. INS , 242 F.3d 882, 888 (9th Cir. 2001) ). "Persecution is an extreme concept and has been defined as the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Gu , 454 F.3d at 1019 (internal quotation marks and citations omitted).

"An applicant alleging past persecution has the burden of establishing that (1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control." Baghdasaryan , 592 F.3d at 1023. "If past persecution is established, a rebuttable presumption of a well-founded fear [of future persecution] arises ...." Tawadrus v. Ashcroft , 364 F.3d 1099, 1103 (9th Cir. 2004) (citing 8 C.F.R. § 208.13(b)(1) ); see also 8 C.F.R. § 1208.16(b)(1)(i) (establishing the same presumption for withholding of removal).

Here, the BIA found that Petitioner's detention, beating, and release conditions did not amount to past persecution and that he could not demonstrate a well-founded fear that he would face future persecution if returned to China. The BIA therefore denied Petitioner's applications for asylum and withholding of removal.³ As explained immediately below, we conclude that the evidence compels a finding of past persecution, thus requiring us to remand this case to the BIA in order for it to apply the presumption of future persecution.

In...