Zhiqiang Hu v. Eric H. Holder Jr.

Decision Date14 July 2011
Docket NumberNo. 09–70240.,09–70240.
Citation11 Cal. Daily Op. Serv. 8860,2011 Daily Journal D.A.R. 10631,652 F.3d 1011
PartiesZHIQIANG HU, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Peter Afrasiabi (argued), One LLP, Newport Beach, CA, and Kathryn Marie Davis, Pasadena, CA, for the petitioner.David H. Wetmore (argued), U.S. Department of Justice, Office of Immigration Litigation, and Channah Farber, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A099–736–933.Before: HARRY PREGERSON, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.

OPINION

PREGERSON, Circuit Judge:

Zhiqiang Hu, a native and citizen of China, petitions for review of a final order of removal by the Board of Immigration Appeals (“BIA”). The BIA denied Hu's applications for asylum and withholding of removal because it concluded that Hu had failed to establish that his past mistreatment was on account of a protected ground. The BIA also denied Hu's application for protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand to the agency for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background1

Zhiqiang Hu is a fifty-one year old native and citizen of China. He testified at his hearing before the Immigration Judge (“IJ”) that he had been a machinery mechanic for a “mid size nationally owned” factory and that he had worked at this government-owned factory since December 1979. In the affidavit Hu submitted in support of his asylum application, he stated that the government-owned factory was very successful, [h]owever, good profit and sufficient funds encouraged corruption of the factory leadership.” Hu further stated that “factory officials often enjoyed themselves with eating, drinking and giving gifts to their business connections at public expense[.] Hu explained that the factory leadership “spent public funds on traveling, sightseeing and took factory property as their own property.” Hu believed that the “factory was heavily in debt” because of these corrupt activities.

On March 5, 2004, Hu and approximately 500 other workers were laid off from their jobs at the government-owned factory and the factory was shut down. The workers were told that the factory was “deeply in debt” and could not pay their salaries. The laid-off workers were promised “supplemental pay” of 6,000 yuan 2 and an additional monthly salary depending on each employee's work history.

Hu testified that these “promise[s] were not kept.” Hu and two other factory leaders, acting as representatives of the factory workers, “wrote [two] complaint letters to the [government agency in charge of the factory] to request proper arrangement for the laid-off workers.” Initially, they did not receive a response from the agency, but after further inquiry, were told to “wait.”

Faced with “life pressure[s,] and believing they had no other options, Hu and the other two worker representatives organized a group of “more than 100 laid off workers to protest in front of the city government building.” Hu testified that the protestors did not obtain a permit for the demonstration because he believed “the government will not issue it.” Hu testified that on September 3, 2004, he arrived at the government building with the other organizers and laid-off workers at about 8:30 a.m., but the front door was “closed tightly.” The laid-off workers “wanted to go into the city government to explain [their] situation,” but the guard would not allow them to enter. The government employees in the building “did not come out to see [the protestors] and they did not allow [the protestors] to go in[side].” Thus, the group “sat quietly in front of the front gate.”

Hu testified that he believed a guard “called the police, telling them that [the protestors] are here to cause trouble.” At about 11 a.m., four police vehicles arrived at the city building and, with “police batons in their hands[, the police] rushed through the crowd of workers ... and beat the crowd.” Hu and the other two worker representatives tried to reason with the police, but the police would not talk to them. Instead, the police handcuffed them, pushed them into police cars, and took them to the police station, where they were held separately and not given any food or water.

The morning after his arrest, Hu was taken in for an interrogation. The police “accuse[d] [Hu] of gathering a crowd to cause trouble and disturb the order of the society. Acting against the government and against the [Communist] party.” The police tried to get Hu to confess to these accusations, but he refused. Hu told the police that he was “not against the government and [ ] did not disturb the order of society. [He was] just [in favor of] the legal rights of those laid off workers.” A police officer grabbed Hu, punched and kicked him, and slapped him in the face. Another police officer beat Hu with a baton.

Hu was placed in a cell with six other people. He testified that the room was locked, had no light, and had only a small window about one square foot in size. Hu was detained there for an additional ten days. He was given porridge and pickles to eat, and was only allowed to leave the cell “in the morning for personal hygiene.”

Hu was released after his family and friends paid “a guarantee money” of 3,000 RMB.3 As a condition of his release, Hu was required to report every Tuesday to the police station, and was placed under the supervision of the neighborhood committees. Hu stated in his affidavit that if he violated these rules, he “would be arrested again.”

Hu diligently reported weekly to the police. He stated in his affidavit that he “was living in terror everyday[because he] was afraid that [he] may be arrested again one day.” A friend suggested Hu flee the country. Hu decided to go to the United States and his friend's friend “handled all matters related to the visa,” including filling out Hu's visa application. On Hu's visa application, this friend's friend stated that the reason for Hu's travel to the United States was business-related and that he would be traveling with a colleague. At Hu's consular interview, Hu told U.S. officials that he was traveling to the United States for business purposes. Hu testified before the IJ that the information in the visa application regarding his education, employment history, and current employment was false, and that he did not indicate on the visa form that he had been arrested because he believed the Chinese government would not allow him to leave the country if he did so.

On April 24, 2005, Hu arrived in the United States on a visa that was valid until July 23, 2005. Hu's wife remained in China with their son, who at the time was very ill with a blood vessel tumor. Hu's wife informed him that the police visited their house every ten to fourteen days looking for Hu. His wife also told Hu, “no matter what[,] you cannot come back, they have already [told] us that your charges[have] been changed. Now you are being charged for betraying your country. If you come back, you will surely die.” Hu testified that he is afraid that he would be persecuted if he is forced to return to China [b]ecause [he] was trying to seek the legal benefit of all the laid off workers and [their] laid off salary pay.” Hu explained that he is afraid that he would be arrested again and “give[n] even more harsh punishment.”

B. The IJ and BIA Decisions

Without citing a single case, the IJ denied Hu's applications for asylum, withholding of removal, and protection under the CAT. The IJ concluded that Hu was not credible because his visa application “states that he worked as a manager for a company,” but Hu testified that he had been laid off from his employment.” The IJ also concluded that Hu had failed to establish that he had suffered persecution on account of any of the protected grounds. The entirety of the IJ's reasoning is as follows:

Assuming that the 9th Circuit standard for credibility holds that his statements in his declaration are consistent, the respondent was involved in a protest outside a government office for which he did not have authorization. The respondent protested being laid off. However, there is no right to employment or he has not shown that the fact that the factory was closed and that 500 employees were laid off was in any way on account of any of the protected grounds. It was an economic, at best, decision but there is no evidence that this was, in any way, related to a protected ground. Therefore, the respondent has failed to establish a nexus between the laying off. As to whether or not the respondent's protest is protected, the Court finds that it was not and that there is no evidence that [Hu] was participating in any conduct which is protected by the asylum laws. His protest seems to have been an illegal gathering for which he was arrested for disturbing the peace. Therefore, he has not established a nexus with that conduct either. Having failed to establish a nexus for asylum, he has also failed to establish a nexus for withholding.

Finally, the IJ concluded that Hu had not established a clear probability that he would be tortured and thus also denied Hu protection under the CAT.

The BIA did not explicitly affirm the IJ's adverse credibility finding, but “agree[d] with the [IJ's] determination that the respondent had not established a nexus to a protected ground.” The BIA explained that [e]ven if credible, it appears that respondent's mistreatment arose solely because of a private dispute which does not qualify him for relief.” The BIA also rejected Hu's claim that he was expressing a political opinion because he was a whistle-blower.

According to the BIA, Hu...

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