Jiang Guan v. William Barr , 925 F.3d 1022 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIANG GUAN, No. 17-71966
Petitioner,
Agency No.
v. A206-341-685
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 4, 2019 *
Pasadena, California
Filed May 30, 2019
Before: Ronald M. Gould and Jacqueline H. Nguyen,
Circuit Judges, and Roger T. Benitez, ** District Judge.
Opinion by Judge Nguyen
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Roger T. Benitez, United States District Judge for
the Southern District of California, sitting by designation.
2 GUAN V. BARR
SUMMARY ***
Immigration
The panel denied Guan Chiang’s petition for review of
the Board of Immigration Appeals’ denial of asylum and
withholding of removal on the basis that there were serious
reasons for believing he committed a serious nonpolitical
crime, and granted in part the petition as to the Board’s
denial of protection under the Convention Against Torture,
and remanded.
The panel held that there were serious reasons to believe
that Guan committed a serious nonpolitical crime, where he
was involved in a financial scheme embezzling public funds.
The panel held that Guan was therefore statutorily ineligible
for asylum and withholding of removal.
As to the issue of whether Guan’s crime was
nonpolitical, the panel held that Guan did not rebut the
presumption that his embezzlement crime was a serious
nonpolitical crime because he failed to establish that it had a
political aspect or objective, and admitted that his
involvement in the scheme stemmed from purely economic
reasons. Rejecting Guan’s contention that his crime was
political in nature because the accusations against him were
pretextual, the panel explained that Guan conflated a
politically motivated prosecution with a politically
motivated crime.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GUAN V. BARR 3
As to the issue of whether there were “serious reasons”
or probable cause to believe that Guan committed a serious
nonpolitical crime, the panel held that there was probable
cause, where Guan testified that he knew from the beginning
that the purpose of the scheme was for public money to be
embezzled and that the scheme was illegal.
The panel also held that Guan failed to establish that he
was deprived of due process at his hearings, or that his
counsel provided him with ineffective assistance.
The panel held that Guan failed to meet his burden for
CAT protection based on his fear of torture in connection
with his possible disclosure of alleged corruption by Chinese
government officials, explaining that Guan had not
identified any actions that he took in the United States to
expose the alleged corruption by Chinese government
officials, and torture does not include pain or suffering
arising only from, inherent in, or incidental to lawful
sanctions, including the death penalty.
However, the panel remanded Guan’s CAT claim based
on his fear of torture in connection with his Christian beliefs,
explaining that even if the Board properly rejected on
adverse credibility grounds Guan’s testimony concerning his
past harm in China due to his religious beliefs, the Board
failed to address evidence in the record supporting Guan’s
CAT claim, including evidence that Guan is currently a
practicing Christian and that such individuals face a risk of
torture in China.
4 GUAN V. BARR
COUNSEL
Gita Beri Kapur, Law Offices of Gita B. Kapur, Los
Angeles, California, for Petitioner.
Aric A. Anderson, Trial Attorney; Emily Anne Radford,
Assistant Director; Joseph H. Hunt, Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
NGUYEN, Circuit Judge:
Guan Jiang, a native and citizen of China, seeks review
of a Board of Immigration Appeals (“BIA”) decision
denying him asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”).
We deny the petition as to Guan’s claims for asylum and
withholding of removal. Substantial evidence supports the
agency’s determination that Guan committed a serious
nonpolitical offense and is therefore statutorily ineligible for
asylum and withholding of removal. As to Guan’s claim for
relief under CAT, however, the IJ failed to consider evidence
from Guan’s church that he is a practicing Christian and
evidence from the country reports that Christians are
persecuted and tortured in China. Therefore, we grant the
petition in part and remand to the BIA for further
consideration of CAT relief.
GUAN V. BARR 5
I. Factual Background
A. Guan’s Introduction to Christianity
Guan grew up in Qingdao, China, where his grandmother
raised him “to know the Christian faith.” Guan had “a
positive impression of Christianity,” but he “did not
understand the religious meaning.” When his grandmother
died in 2001, Guan “kept her Bible as a keepsake.” Guan
read the Bible but lacked “a deep comprehension of it.”
Years later, Guan ran into a childhood friend, Zhang
Zhen, who told Guan about church gatherings that Zhang
attended every weekend at a private home. Guan
accompanied Zhang to a church meeting “out of curiosity”
in May 2007. At the meeting, Guan was able “to truly
understand God.” The congregants at the house church
“sang hymns, read the Bible, shared testimonies, loved one
another[,] and . . . were very happy.”
Guan attended the church meetings once or twice a
month and eventually on a weekly basis. Guan knew that his
church was not officially registered but “figured that . . . [he]
could continue to participate” because they “had not done
anything wrong.” Guan claimed that he “became a
Christian” when he was baptized in December 2007.
B. Guan’s Participation in the Pyramid Scheme
In January 2009, Guan had dinner with his uncle, Guan
Fengkun (“Uncle Fengkun”), where he met several local
government officials, including Mayor Yu Jiantai and the
director of the propaganda department, Naipeng Jiang. A
few days later, Guan met with Director Jiang and Uncle
Fengkun in his uncle’s office. Jiang told Guan that the
officials, led by Mayor Yu, were planning to form an
6 GUAN V. BARR
investment company “to put together [their] money” and use
it for infrastructure projects in Qingdao.
Jiang explained that it was “not appropriate” for a
government official to manage the company, so they needed
to find a private citizen to do it. Guan agreed to become
involved because it was a “rare” and “precious” opportunity
for a young merchant like him to become acquainted with so
many government officials, and he “had a lot of money on
hand and . . . wanted to do some business.”
The following month, Mayor Yu provided office space
for the venture by ordering the administration of industry
and commerce to vacate its existing premises. A few days
later, Guan received all of the licenses and permits necessary
to operate the Jintailong Investment Company. Mayor Yu’s
secretary, Chen Xing, gave Guan detailed instructions about
what the company would need to do and explained the
different processes for handling funds raised from the public
versus those invested by the government officials’ relatives.
Chen asked Guan to keep these details secret from the
public.
Jintailong opened in July 2009. The company was
registered in Guan’s name, and Guan seeded it with a
¥5 million investment from his own funds. Jintailong’s
clients included both members of the general public and—at
least nominally—the relatives of government officials. A
“large amount of cash” invested in Jintailong in the name of
the officials’ relatives and friends was in fact made by the
government officials themselves and derived from “public
money [that they had] embezzled . . . and their illegal
income.”
During the company’s first five years, it collected around
¥80 million from the general public and ¥700–900 million
GUAN V. BARR 7
from the officials’ family members. On the 18th day of each
month, Guan collected the investors’ money and delivered it
to Mayor Yu via Secretary Chen or Director Jiang. Secretary
Chen set aside some of the money, approximately ¥300,000–
400,000 per month, to pay interest to Jintailong’s investors,
which Guan brought back to Jintailong. Guan knew that
Jintailong lacked the qualifications to receive public deposits
or loans but did not worry because he received his orders
from government officials and he believed that there were
“several million companies like this.”
Mayor Yu and the government officials invested the
money from Jintailong in construction projects and
residential community development. However, these
projects used “[i]nferior materials” and “substandard
products.” The development forced families to relocate and
accept compensation at less than fair market value. When
“numerous civilians” gathered to petition the government,
Mayor Yu had the Public Security Bureau (“PSB”) suppress
them.
C. Guan’s Bar and Nightclub Business
When Jintailong had been operating for a year, Mayor
Yu brought in Sun Tao, a local gang leader with an extensive
criminal record, as a manager. Although Sun was nominally
tasked with safeguarding the large amount of cash flowing
through the company each day, he actually functioned in a
supervisory capacity. He led “a number of social idlers and
former prisoners to control the supply of cement, sand, and
gravel for the development of various living communities,”
and had gang members “take responsibility [for] the security
of construction sites.”
After Sun’s arrival at Jintailong, Guan wanted to leave
the company. He began coming into the office only on
8 GUAN V. BARR
Wednesdays. His participation in Jintailong’s affairs was
limited to the monthly handovers of investment cash and
quarterly handovers of expired investment contracts and
company income statements.
In September 2010, Guan rented a building in which to
start Heshuo Entertainment—a bar and nightclub business.
In early 2011, he told Uncle Fengkun about his plan to resign
from his position at Jintailong and no longer serve as its legal
representative. A few days later, Guan attended a dinner at
which Mayor Yu implicitly threatened to kill Guan if he left
the company.
The next day, Guan went to Director Jiang’s office,
where PSB Political Commissar Shi Dexin convinced him
not to leave Jintailong. Shi told Guan: “[W]ork hard for
[Mayor Yu]. Develop your own business while taking care
of the company at the same time.” Shi cautioned Guan that
the government officials would not let him go because he
“knew too much.”
Mayor Yu fast-tracked the licensing process for Heshuo
Entertainment, which opened in July 2011. Guan was in
charge of Heshuo’s day-to-day management. The business
flourished, and Guan spent most of his time there.
D. Guan’s Arrest for Religious Activity
In December 2010, before Heshuo had officially opened,
Guan’s church group began meeting there every Sunday to
accommodate its growth. On January 27, 2013, a group of
police raided one such gathering and arrested everyone
present. The police accused the congregants of “having an
illegal gathering,” “spreading evil cult activities,” and
disrupting social order. Guan was taken to the PSB and
detained for three days. Three officers handcuffed and
GUAN V. BARR 9
interrogated Guan. When he refused their order to kneel, the
officers grabbed him by the hair and kicked him in the legs
to force his compliance. For the next three to four hours, the
officers alternatively beat Guan with a baton and
interrogated him, leaving him dizzy and “writhing in pain.”
Around 4:00 the next morning, the three officers
interrogated Guan again. The officers handcuffed him to an
overhead bar, forcing him to stand with his arms raised and
his feet barely touching the ground for about five hours.
During this time, the officers struck Guan with the baton
many times on his head, shoulders, legs, and stomach. Guan
admitted to the officers’ allegations only because he “could
no longer endure the torture.”
E. Guan’s Travel to the United States
The police released Guan on January 30, 2013, after his
wife paid ¥20,000 and Guan signed a letter admitting to his
alleged crimes involving the church. As a condition of
release, Guan was required to report to the police every week
so that they could monitor him, which was “very painful” for
his family because each time they worried that he would be
detained, beaten, or sentenced. Guan was prohibited from
organizing, assisting, and participating in religious activities,
disseminating cult speeches, and contacting his church
friends.
The day after his release, Guan was treated at the hospital
for injuries to his face and head, multiple soft tissue
contusions on his body, swelling on his legs and wrists, an
inability to lift his left arm, and a fracture to his eighth right
rib. He received a CT scan on his head and medication for
the swelling and inflammation.
10 GUAN V. BARR
Guan submitted a complaint to the city on February 5,
2013, but officials at the complaint office told him that the
matter was outside their jurisdiction and that he should speak
with the procuratorate office. 1 Thereafter, police officers
would search Heshuo Entertainment every few days. They
“turned [it] upside down and sometimes just took products,”
scared off his customers, and soon ruined his business.
Fearing re-arrest, Guan and his wife made plans to escape
the country.
Guan last worked at Jintailong in March 2013. The
government officials stopped paying him in April 2013
because he had used the business permit specially authorized
by Mayor Yu to engage in church activities, which they
feared would threaten their positions.
Guan traveled to the United States via Hong Kong in
October 2013. Since arriving in the United States, he has
regularly attended a Lutheran church in Monterey Park.
F. China’s Extradition Request
After Guan arrived in the United States, he heard from
his parents that the police were “infuriated” by his failure to
report and other violations of supervised release. The police
often came to Guan’s home to check on his whereabouts.
They asked his father to persuade him to surrender
immediately and threatened that they would “eventually
catch [Guan] and bring [him] to justice by sending [him] to
1
As of October 2010, Chinese law provided that “law enforcement
and administrative operations of criminal detention facilities such as the
detention, exchange of custody, and incarceration of criminal suspects or
defendants shall be subject to the legal supervision of the procuratorial
authorities.”
GUAN V. BARR 11
[a] reeducation labor camp for the rest of [his life].” Guan
lived “in deep fear” of this.
China issued an Interpol Red Notice seeking Guan’s
extradition in January 2014. 2 The Red Notice alleged that
Guan “illegally received public deposits with high interest
promise” through Jintailong, knowing that the company “did
not have the qualification to receive public deposits or grant
loans.” It further alleged that Guan “and other suspects
illegally received public deposits of [¥]97 million from
570 persons.”
Around the beginning of June 2014, Guan learned from
his attorney that he was wanted by the Chinese authorities.
Guan called Uncle Fengkun and various government
officials to find out what was going on. He learned that in
October 2013, the government authorities dismantled
Jintailong after Guan failed twice to show up for reporting.
Guan claims that he will be executed if he returns to China.
II. Procedural History
In April 2014, four days before Guan’s visa expired, he
applied for asylum, withholding, and CAT protection,
claiming that he feared persecution by the Chinese
government due to his Christian religion and his hosting an
2
“A Red Notice is a request to locate and provisionally arrest an
individual pending extradition. It is issued by [Interpol’s] General
Secretariat at the request of a member country or an international tribunal
based on a valid national arrest warrant.” Interpol, Red Notices,
https://www.interpol.int/INTERPOL-expertise/Notices/Red-Notices.
Although a Red Notice “is not an international arrest warrant,” id., it “is
the closest instrument to an international arrest warrant in use today.”
Department of Justice, Criminal Resource Manual § 611,
https://www.justice.gov/jm/criminal-resource-manual-611-interpol-red-
notices.
12 GUAN V. BARR
unregistered house church. The government commenced
removal proceedings in June 2014 and took Guan into
custody in 2016.
To support his claim, Guan offered his own testimony
and various evidentiary exhibits, including country reports
and a letter from the leader of his church in the United States.
Guan’s October 2016 merits hearing was cut short when,
after the morning session had ended, the IJ learned that Guan
had been fasting in solidarity with his “blood brother.” The
IJ, concerned that the fasting could affect Guan’s ability to
concentrate, continued the hearing to ensure that Guan was
“healthy and ready to go.” The IJ also continued the
subsequent merits hearing when it became clear that the
interpreter spoke a different dialect than Guan and was
having difficulty communicating with him. Guan completed
his testimony at a January 2017 merits hearing.
The IJ determined that Guan was ineligible for asylum
and withholding of removal based on religious persecution.
The IJ found that Guan was “not . . . a credible witness and
[did] not afford his testimony any weight.” The IJ based the
adverse credibility finding on inconsistencies in Guan’s
statements about whether he knew that his participation in
Jintailong was misconduct or criminal activity.
Alternatively, the IJ found probable cause to believe that
Guan committed a serious nonpolitical offense in China
based on Guan’s admissions and the arrest warrant. The IJ
found that there was “no political aspect to [Guan’s being
accused] of committing a crime in China” and that in arguing
otherwise, Guan “conflated a request for asylum based upon
GUAN V. BARR 13
his Christian beliefs with the [Chinese] arrest warrant” for
an economic crime. 3
The following month, the IJ also denied CAT relief. The
IJ found that Guan failed to show a likelihood of being
tortured in China because of his religious beliefs “for all the
reasons stated in [the] decision regarding asylum and
withholding of removal.” In addition, the IJ found Guan
ineligible for CAT relief based on his anticipated death
sentence for economic crimes because “any punishment
flowing from [his crimes] would constitute lawful
sanctions.”
The BIA affirmed the IJ’s rulings regarding asylum,
withholding of removal, and CAT relief on the grounds that
Guan lacked credibility, there was probable cause to find that
he had committed a serious nonpolitical offense in China,
and he had failed to show that he would more likely than not
be tortured if he returned to China. The BIA rejected Guan’s
additional argument that he was denied due process because
the IJ relied on testimony he gave while fasting and having
difficulty with the interpreter and because his counsel failed
to object to the admission of the asylum officer’s notes.
III. Jurisdiction and Standard of Review
We have jurisdiction over final orders of removal
pursuant to 8 U.S.C. § 1252. The BIA’s legal determinations
are reviewed de novo and its factual findings for substantial
evidence. Diaz-Jimenez v. Sessions, 902 F.3d 955, 958 (9th
3
The IJ also found Guan’s testimony that he had been harmed and
feared further harm in China on account of his religious beliefs to be
unpersuasive and lacking corroboration. Because the BIA did not reach
this ground, we do not consider it here. See INS v. Orlando Ventura,
537 U.S. 12, 16–17 (2002).
14 GUAN V. BARR
Cir. 2018). To the extent the BIA reviewed the IJ’s decision
and incorporated portions of it as its own, we treat the
incorporated parts of the IJ’s decision as the BIA’s. Parada
v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018).
IV. Discussion
A. Asylum and Withholding of Removal
An applicant is ineligible for asylum and withholding if
there are “serious reasons” to believe that he “committed a
serious nonpolitical crime” outside the United States prior to
his arrival. 8 U.S.C. § 1158(b)(2)(A)(iii) (asylum); id.
§ 1231(b)(3)(B)(iii) (withholding). The “serious reasons”
standard is “tantamount to probable cause.” Silva-Pereira v.
Lynch, 827 F.3d 1176, 1188 (9th Cir. 2016) (quoting Go v.
Holder, 640 F.3d 1047, 1052 (9th Cir. 2011)).
1. Serious Nonpolitical Crime
“[A] ‘serious non-political crime’ is a crime that was not
committed out of ‘genuine political motives,’ was not
directed toward the ‘modification of the political
organization or . . . structure of the state,” and in which there
is no direct, ‘causal link between the crime committed and
its alleged political purpose and object.’” McMullen v. INS,
788 F.2d 591, 595 (9th Cir. 1986) (quoting G. Goodwin-Gill,
The Refugee in International Law 60–61 (1983)), overruled
on other grounds by Barapind v. Enomoto, 400 F.3d 744 (9th
Cir. 2005) (en banc) (per curiam). “In evaluating the
political nature of a crime, we consider it important that the
political aspect of the offense outweigh its common-law
character. This would not be the case if the crime is grossly
out of proportion to the political objective or if it involves
acts of an atrocious nature.” INS v. Aguirre-Aguirre,
GUAN V. BARR 15
526 U.S. 415, 422 (1999) (quoting In re McMullen, 19 I. &
N. Dec. 90, 97–98 (B.I.A. 1984)).
A large financial crime in the nature of theft, such as
embezzlement, is normally a serious nonpolitical crime. See
Guo Qi Wang v. Holder, 583 F.3d 86, 90 (2d Cir. 2009); In
re Ballester-Garcia, 17 I. & N. Dec. 592, 595 (B.I.A. 1980)
(finding nonviolent theft serious in part because “it
involve[d] a very large sum of money”); see also Kenyeres
v. Ashcroft, 538 U.S. 1301, 1302 (2003) (Kennedy, J.,
denying application for stay of removal) (classifying
embezzlement as a serious nonpolitical crime). To rebut this
presumption, the applicant must “identify . . . facts showing
that his offense had some ‘political aspect’ or ‘political
objective.’” Go, 640 F.3d at 1052.
Guan argues that his crime was political in nature
because the accusations against him are pretextual; the
Chinese government’s “true intent” in seeking his
extradition is “to stifle his ability to further expose the degree
and extent of corruption that Chinese government officials
engaged in while involved with Jintailong.” However, Guan
conflates a politically motivated prosecution with a
politically motivated crime. 4 He admitted that his
4
In a related context, the Immigration and Naturalization Act
provides that aliens are inadmissible if they committed a crime involving
moral turpitude or have multiple criminal convictions, but excludes from
these categories “purely political offenses.” 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), (a)(2)(B). The BIA applies this exception to
nonpolitical crimes that were prosecuted for purely political reasons. See
22 C.F.R. §§ 40.21(a)(6), 40.22(d) (interpreting “purely political
offense” to include “offenses that resulted in convictions obviously
based on fabricated charges or predicated upon repressive measures
against racial, religious, or political minorities”); In re O’Cealleagh,
23 I. & N. Dec. 976, 980 n.5 (B.I.A. 2006); cf. In re B—, 1 I. & N. Dec.
16 GUAN V. BARR
involvement in the Jintailong scheme stemmed from purely
economic reasons: he had a lot of money on hand and
“wanted to do some business.” Therefore, he fails to rebut
the presumption that his alleged crime was nonpolitical.
2. Probable Cause
Guan also argues that there is insufficient evidence to
support the IJ’s probable cause finding because he was
unaware that the funds would not be repaid. 5 We disagree.
Guan testified that “[t]he purpose of Mayor Yu’s
establishing [Jintailong]” was for public money to be
embezzled, and Guan “knew [this] from the beginning.”
Moreover, Guan knew that Jintailong was an illegal
enterprise because he was aware that the government
officials backing it had used financial crime laws to put
similar, rival schemes out of business when they became a
competitive threat. Thus, substantial evidence supports the
IJ’s finding that there was probable cause to believe Guan
47, 50 (B.I.A. 1941) (finding that fraud conviction in Nazi Germany was
not a crime of moral turpitude where the “conviction occurred primarily
because of political considerations, to wit: the fact that the defendant was
a Jew”). We need not decide whether this doctrine applies in the present
context, however, because Guan fails to show that the charges against
him are fabricated or that he was singled out for prosecution on account
of his religious beliefs.
5
It is unclear that the crime with which he is charged even has a
knowledge element. Article 176 of the Chinese Criminal Law punishes
“[w]hoever takes deposits from people illegally or in disguised form and
disrupts financial order.” Other crimes “Undermining the Order of
Financial Management” explicitly require knowledge of the financial
wrongdoing. See, e.g., Chinese Criminal Law, art. 172 (punishing
“[w]hoever knowingly possesses or uses a substantial amount of
counterfeit money”). The absence of a knowledge element in article 176
suggests it could be satisfied by criminal negligence.
GUAN V. BARR 17
committed a serious nonpolitical crime, and Guan is
statutorily ineligible for asylum or withholding of removal.
B. Alleged Due Process Violations
The Due Process Clause of the Fifth Amendment
guarantees that aliens in removal proceedings have “a full
and fair opportunity to be represented by counsel, to prepare
an application for . . . relief, and to present testimony and
other evidence in support of [that] application.” Go,
640 F.3d at 1055.
1. Guan’s Fasting
Guan argues that he did not receive a full and fair hearing
because his fasting impeded his ability to testify at the
October 2016 hearing. While a significant amount of Guan’s
testimony was taken at that hearing, his testimony largely
repeated information provided in his written statement.
Moreover, nothing in the record suggests that Guan was
impaired in any way. To the contrary, when questioned at
the hearing about his fasting, Guan stated that he was “in a
very good condition” and that the fasting “didn’t affect” any
of his answers. He explained that fasting “doesn’t mean that
we don’t eat at all” and stated that he “want[ed] to finish the
case” that day. The IJ continued the proceedings only out of
an abundance of caution. There was no due process
violation.
2. Interpreter Problems
Guan also argues that he did not receive a full and fair
hearing because of problems communicating with the
interpreter at the December 2016 hearing. However, very
little testimony was taken prior to the continuance. And the
testimony that was taken involved counsel for the
18 GUAN V. BARR
government asking “the same questions again” to elicit “the
information [Guan] provided at the last hearing . . . so the
record [would] be clear.” Neither the IJ nor BIA cited
testimony from that day in reaching their findings, and Guan
does not explain how the problems with the interpreter
affected his testimony or otherwise impacted the hearing’s
fairness. Therefore, he fails to show a due process violation.
3. Assistance of Counsel
Guan contends that his original counsel was ineffective
for failing to object to the admission of the asylum officer’s
notes in the proceedings before the IJ. The right to be
represented by counsel in an immigration proceeding at
one’s own expense “is protected as an incident of the right
to a fair hearing under the Due Process Clause of the Fifth
Amendment.” Gomez-Velazco v. Sessions, 879 F.3d 989,
993 (9th Cir. 2018). Because Guan failed to comply with the
procedural requirements for such a claim, see In re Lozada,
19 I. & N. Dec. 637, 639 (B.I.A. 1988), 6 he is entitled to
relief only if “the ineffectiveness of counsel was plain on its
face.” Tamang v. Holder, 598 F.3d 1083, 1090 (9th Cir.
2010). A claim that counsel’s ineffectiveness in
immigration proceedings violated due process “requires a
showing of inadequate performance and prejudice.”
6
These requirements are: “(1) the alien should submit an affidavit
detailing the agreement with former counsel; (2) the alien must notify his
former counsel of the allegations and afford counsel an opportunity to
respond; and (3) ‘the motion should reflect whether a complaint has been
filed with appropriate disciplinary authorities regarding such
representation, and if not, why not.’” Correa-Rivera v. Holder, 706 F.3d
1128, 1131 (9th Cir. 2013) (quoting Lozada, 19 I. & N. Dec. at 639); see
8 C.F.R. § 1208.4(a)(5)(iii)(A)–(C).
GUAN V. BARR 19
Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th
Cir. 2015).
The record does not show that counsel performed
deficiently. Agency regulations specifically provide for the
asylum officer’s notes to be included in the record reviewed
by the IJ, see 8 C.F.R. § 208.30(g)(2)(ii), and Guan does not
argue that this regulation is invalid. Guan likewise fails to
show prejudice. Neither the IJ nor the BIA based its
decisions on the asylum officer’s findings. Rather, their
decisions were based primarily on Guan’s subsequent
testimony and written statement and the government’s
evidence. There is no reason to suspect that Guan’s
counsel’s failure to object to the admission of the asylum
officer’s notes “may have affected the outcome of the
proceedings.” Martinez-Hernandez, 778 F.3d at 1088
(quoting Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858
(9th Cir. 2004)).
C. Convention Against Torture
“To obtain relief under [the] CAT, a petitioner must
prove that it is more likely than not that he or she will be
tortured in the country of removal.” Parada, 902 F.3d
at 914; see 8 C.F.R. § 1208.16(c)(2). Guan claims that he is
likely to be tortured in China “because of his knowledge and
willingness to disclose information in the United States
regarding the extent of corruption by Chinese government
officials involved with Jintailong” and “due to his Christian
beliefs and practices.”
20 GUAN V. BARR
1. Torture in Connection with Guan’s Disclosure of
Alleged Corruption by Chinese Governmental
Officials
Guan has not identified any actions that he took in the
United States to expose the alleged corruption by Chinese
government officials. Statements and testimony in
connection with an asylum application are normally kept
confidential. See 8 C.F.R. § 208.6. Nor has Guan presented
any evidence that he is likely to be tortured on this ground.
“Torture does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions. Lawful
sanctions include judicially imposed sanctions and other
enforcement actions authorized by law, including the death
penalty . . . .” 8 C.F.R. § 1208.18(a)(3). As Guan had the
burden of proof, see 8 C.F.R. § 1208.16(c)(2), the IJ did not
err in finding that Guan failed to meet it.
2. Torture in Connection with Guan’s Religious
Beliefs
Guan’s claim of probable torture due to his religious
beliefs and practices is more substantial. The BIA, in its
conclusory affirmance of the IJ, apparently adopted the IJ’s
adverse credibility finding by citing to Farah v. Ashcroft,
348 F.3d 1153, 1156–57 (9th Cir. 2003). In Farah, we
upheld the BIA’s determination that the petitioner and his
witnesses were not credible, and because the petitioner’s
CAT claims were based on the same statements with “no
other evidence,” we also upheld the denial of CAT relief. Id.
at 1157.
Farah is distinguishable, however, because Guan
offered additional evidence in support of his claim of
religion-based torture that neither the BIA nor the IJ
addressed. In particular, Guan presented country reports
GUAN V. BARR 21
indicating that Christians in China are subject to torture, and
he presented a letter from a leader of his church in the United
States stating that Guan began attending services there in
2014, shortly after he arrived in the United States. Thus,
even if as a result of the adverse credibility finding the IJ
properly rejected Guan’s testimony that he participated in
religious activities in China and was beaten up by the police
for it, the unaddressed evidence still supports his CAT claim.
It suggests that Guan is currently a practicing Christian and
that such individuals face a risk of persecution in China,
including torture.
In Kamalthas v. INS, we remanded a CAT claim when
“the BIA failed to consider probative evidence in the record
of country conditions which confirm that Tamil males [like
the petitioner] have been subjected to widespread torture in
Sri Lanka”—notwithstanding the agency’s undisputed
finding that the petitioner was not credible for asylum
purposes. 251 F.3d 1279, 1284 (9th Cir. 2001). We were
“not comfortable with allowing a negative credibility
determination in the asylum context to wash over the torture
claim; especially when the prior adverse credibility
determination is not necessarily significant in this situation.”
Id.
We subsequently distinguished Kamalthas in a case
where a Yemeni petitioner’s CAT claim relied on “his
discredited testimony and general reports indicating that
torture occurs in Yemen.” Almaghzar v. Gonzales, 457 F.3d
915, 922 (9th Cir. 2006). Almaghzar deferred to the BIA’s
determination that CAT relief was unavailable because “the
reports alone” did not “compel the conclusion that [the
petitioner] would be tortured if returned.” Id. at 922–23.
Here, in contrast, the country reports did not contain
generalized statements that torture occurs in China. Rather,
22 GUAN V. BARR
they stated that members of particular religious groups,
including Christians, are subject to torture. Moreover, Guan
did not rely solely on the country reports and his discredited
testimony; he also submitted proof from his U.S. church that
he was a practicing Christian.
As in Kamalthas, the BIA’s adverse credibility finding
in the asylum context had little to do with the petitioner’s
claim for CAT relief. Guan’s argument to the BIA for CAT
relief, which he repeats here, focused mainly on his religious
beliefs and practices and included only a conclusory
statement that torture was also likely based on his Jintailong-
related actions. The BIA’s adverse credibility finding,
which was based on an apparent inconsistency in Guan’s
testimony about his knowledge that the government officials
were stealing from the general public, had nothing to do with
his claim that he expects to be tortured based on his religious
practices. Although an inconsistency serving as the basis for
an adverse credibility finding “no longer need to ‘go to the
heart’ of the petitioner’s claim,” Shrestha v. Holder,
590 F.3d 1034, 1043 (9th Cir. 2010) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)), it “should not be a mere trivial error,”
id. at 1044.
Even with respect to Guan’s asylum and withholding
claims, where his knowledge of wrongdoing at Jintailong
was relevant, the adverse credibility finding was not
particularly strong, being based on a single statement by
Guan that the IJ may have misinterpreted. 7 In Almaghzar,
7
Guan consistently testified that he knew Jintailong “did not have
the qualifications to receive public deposits or loans,” he “continued to
work for [the government officials] knowing what they were doing was
illegal,” and he “knew from the beginning that [the officials] were going
to steal money from the public.” The IJ focused on Guan’s purportedly
GUAN V. BARR 23
the adverse credibility evidence was much more substantial,
see 457 F.3d at 918 (“Almaghzar . . . told two different tales
. . . .”), so much so that the petitioner “[did] not argue that
the IJ erred in determining that the stories were inconsistent
to the point that they were not credible” or “that translation
errors caused the inconsistencies,” id. at 918 n.5. Guan, in
contrast, forcefully disputes the adverse credibility finding. 8
“It is well-accepted that country conditions alone can
‘play a decisive role in granting relief under [CAT].’” Nuru
v. Gonzales, 404 F.3d 1207, 1219 (9th Cir. 2005) (quoting
Kamalthas, 251 F.3d at 1283). Because “the BIA abused its
discretion when it failed to . . . show proper consideration of
all factors when weighing equities and denying relief,”
Kamalthas, 251 F.3d at 1284 (alterations omitted) (quoting
Arrozal v. INS, 159 F.3d 429, 432 (9th Cir. 1998)), we
remand for reconsideration of Guan’s CAT claim.
inconsistent statement that the money he collected for Jintailong was “all
going to be returned.” Guan may have meant that Jintailong’s investors
received a “return” on their investment in the form of regular interest
payments. We need not reach the credibility issue, however, because the
BIA’s denial of Guan’s asylum and withholding claims is supported by
the independent ground that Guan committed a serious nonpolitical
crime.
8
Almaghzar did not remand for reconsideration of the CAT claim
under Ventura and Gonzales v. Thomas, 547 U.S. 183 (2006) (per
curiam), because the “IJ generally said that he had considered all
evidence” and “the IJ and BIA decided the merits of [the] CAT claim
with the benefit of the country condition reports.” Almaghzar, 457 F.3d
at 918 n.11. In contrast, here, the IJ did not make such a generalized
statement in the decision regarding CAT relief. The BIA’s decision cited
Farah, where the BIA applied its adverse credibility finding from the
asylum claim to the CAT claim “based on the same [discredited]
statements” by the petitioner and “no other evidence,” 348 F.3d at 1157,
indicating that the BIA here also considered no other evidence.
24 GUAN V. BARR
V. Conclusion
We deny Guan’s petition for review as to his claims for
asylum and withholding of removal. We grant the petition
as to his claim for CAT relief and remand for the BIA to
reconsider that claim in light of the country reports and the
letter from Guan’s U.S. church.
PETITION GRANTED in part, DENIED in part,
and REMANDED.