Tianhai Cui v. Matthew Whitaker ( 2019 )

FILED
NOT FOR PUBLICATION
JAN 25 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIANHAI CUI; WENWU CUI, No. 15-72820
Petitioners, Agency Nos. A099-724-518
A099-724-517
v.
MATTHEW G. WHITAKER, Acting MEMORANDUM*
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 11, 2019
Pasadena, California
Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,**
District Judge.
Petitioners Tianhai Cui (“Cui”) and his son Wenwu petition for review of
the denial of their applications for asylum; Cui also petitions for review of the
denial of his application for withholding of removal and protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Convention Against Torture (“CAT”). We grant the petition as to the claims for
asylum and withholding of removal and remand for further proceedings on those
claims. We deny the petition as to the CAT claim.
1. The Board of Immigration Appeals (“BIA”) and Immigration Judge
(“IJ”) determined that Cui did not credibly testify about the circumstances of his
arrest in China. But Cui never mischaracterized the circumstances of his arrest; his
testimony was consistent and was not contradicted by any other evidence in the
record. He consistently claimed that his argument with his neighbor was a
property dispute and that the neighbor had knowledge of Cui’s wife and daughter’s
practice of Christianity. Cui also consistently claimed that after his neighbor
reported him to the authorities, the police interrogated Cui about both the
underground church in his house and the altercation with his neighbor. Therefore,
the BIA’s adverse credibility determination was not supported by substantial
evidence. See Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017).
Furthermore, the IJ did not give Cui adequate notice of the need to provide
corroborative testimony from his son and daughter. The IJ asked Cui for specific
corroborating evidence—which Cui provided—but never asked for testimony from
Cui’s son or daughter. Later, the IJ and the BIA used the lack of testimony from
Cui’s son or daughter to discredit Cui’s testimony and support an adverse
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credibility finding. The IJ’s failure to give proper notice and an opportunity to
provide this testimony was a significant error, and this lack of corroboration cannot
be held against Cui to support an adverse credibility finding. See Bhattarai v.
Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016).
2. The BIA also concluded that even if Cui’s testimony was credible, he
did not suffer past persecution. But a finding of past persecution is compelled by
the record based on the totality of the circumstances of Cui’s arrest: he was
electrically shocked and kicked for about ten minutes, held in detention for seven
days, forced to confess to his wife’s “crimes,” and admit that the church meeting in
his house was illegal. After his release, he was required regularly to check in with
the police. See Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018); Quan v. Gonzales,
428 F.3d 883, 888–89 (9th Cir. 2005) (“Using an electrically-charged baton on a
prisoner . . . may constitute persecution, even when there are no long-term effects
and the prisoner does not seek medical attention.”). Cui suffered persecution based
on his imputed religion. The underground church was a central reason for Cui’s
arrest and a central topic of the interrogation, even if not the sole reason or topic.
See 8 U.S.C. § 1158(b)(1)(B)(i); see also Parussimova v. Mukasey, 555 F.3d 734,
741 (9th Cir. 2009).
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A finding of past persecution creates a rebuttable presumption of a well-
founded fear of future persecution. Because Cui testified credibly and established
that he suffered past persecution on the basis of his imputed religion, we remand in
order to afford the government the opportunity to rebut this presumption by
showing a fundamental change in circumstances such that Cui no longer has a
well-founded fear of persecution. See Deloso v. Ashcroft, 393 F.3d 858, 863–64
(9th Cir. 2005).
3. We deny Cui’s petition as to his CAT claim. Cui has not shown it is
more likely than not that he would be tortured if he is returned to China. He claims
only that he would “be arrested and put into prison against [his] freedom” if he
returned, which would not qualify as torture. See Guo, 897 F.3d at 1217.
DENIED in part, GRANTED and REMANDED, in part.
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