Wenhao Gu v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION SEP 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WENHAO GU, No. 10-71132
Petitioner, Agency No. A088-101-255
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Wenhao Gu, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s (“IJ”) decision denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual
findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny
in part and grant in part the petition for review, and we remand.
In his proceedings before the IJ, Gu testified that, due to his participation in
an underground Christian church, he lost his job in March 2006; the police arrested
him on June 16, 2006, detained him for 15 days, physically mistreated him, and
told him not to continue participating in underground church activities or he would
face more severe punishment; and the neighborhood watch visited him regularly
after his release. Gu also testified that the neighborhood watch continued to
inquire about his whereabouts after he came to the United States. Gu’s interview
with an asylum officer took place on February 1, 2007. At the conclusion of the
merits hearing, the IJ found Gu’s account credible.
Substantial evidence supports the agency’s denial of CAT relief because Gu
failed to establish it is more likely than not that he will be tortured if returned to
China. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir. 2006).
However, in light of the IJ’s finding that Gu was credible, the record does
not support the agency’s determination that his asylum application was untimely.
See Khunaverdiants v. Mukasey, 548 F.3d 760, 766-67 (9th Cir. 2008) (agency
erred in finding application untimely where IJ credited petitioner’s testimony about
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experiences in Iran that occurred less than one year before he filed his asylum
application).
Further, the record compels the conclusion that the mistreatment Gu suffered
due to his participation in an underground Christian church rose to the level of
persecution. See Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (totality of
circumstances compelled finding of persecution where petitioner was physically
harmed, detained for a day and a half, and coerced into signing document saying he
would no longer believe in Christianity). Because Gu suffered past persecution, he
is entitled to a presumption of future fear. See 8 C.F.R. §§ 1208.13(b)(2),
1208.16(b)(1). The agency did not reach the question of whether this presumption
was rebutted. Accordingly, we grant the petition as to Gu’s asylum and
withholding of removal claims and remand for the agency to apply the
presumption of future fear in its analysis of these claims. See Guo, 361 F.3d at
1204; INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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