Zhihui Guo v. Jefferson Sessions , 897 F.3d 1208 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHIHUI GUO, No. 15-70617
Petitioner,
Agency No.
A201-200-204
v.
JEFFERSON B. SESSIONS III, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 10, 2018
Pasadena, California
Filed July 30, 2018
Before: Danny J. Boggs,* Jay S. Bybee,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Bybee
*
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 GUO V. SESSIONS
SUMMARY**
Immigration
The panel granted a petition for review as to the Board of
Immigration Appeals’ denial of Zhihui Guo’s applications for
asylum and withholding of removal, and denied the petition
as to protection under the Convention against Torture.
Police arrested Guo for attending a Christian “home
church,” beat him with a baton and detained him for two
days, forbade him from attending his home church, and
required him to report to the police weekly to verify his
compliance.
The panel held that this evidence compelled the
conclusion that Guo suffered past persecution. The panel
explained that in addition to the physical mistreatment, which
caused Guo to seek medical attention, the police effectively
prevented Guo from practicing his religion and living a
Christian life. The panel remanded Guo’s asylum and
withholding claims for the Board to apply the rebuttable
presumption that Guo will experience further persecution if
returned to China.
The panel held that Guo failed to establish a clear
probability of torture.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GUO V. SESSIONS 3
COUNSEL
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.
OPINION
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
1
We refer to Mr. Guo as “Petitioner” to avoid confusion with a case
frequently cited below using the same surname.
4 GUO V. SESSIONS
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
GUO V. SESSIONS 5
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
6 GUO V. SESSIONS
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.
2
The credibility determination in this case is ambiguous. The IJ
concluded that she had “serious questions regarding [Petitioner’s]
credibility and the truthfulness of his religious activities in China,
GUO V. SESSIONS 7
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
particularly a few major inconsistencies between his declaration and his
testimony . . . .” The IJ did not, however, “believe that [there were]
sufficient material inconsistencies to make a negative credibility finding
under current Ninth Circuit case law.” Nonetheless, she went on to
explain that she had “serious concerns about the reason why [Petitioner]
truly came to the United States[,]” stating that she had “doubts it was to
escape religious persecution at the hand of the Chinese government.” The
IJ concluded that the “true reason” was to obtain educational opportunities
that “would improve his future . . . .”
The BIA observed that the IJ “did not enter an explicit credibility
determination on [Guo’s] claim as a whole . . . .” However, it stated that
it would “treat [Guo’s] testimony as credible for purposes of this appeal.”
We do so as well.
8 GUO V. SESSIONS
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
GUO V. SESSIONS 9
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 concluding that Petitioner did not suffer past
persecution, the BIA primarily relied on our decisions in Gu
and Guo—not to be confused with the petitioner of the same
name in this appeal. Both cases involved claims of religious
persecution in China, but only in Guo did we conclude that
the record compelled granting the petition.
3
A “failure to satisfy the lower standard of proof required to establish
eligibility for asylum . . . necessarily results in a failure to demonstrate
eligibility for withholding of deportation.” Halaim v. INS, 358 F.3d 1128,
1132 (9th Cir. 2004) (quoting Pedro-Mateo v. INS, 224 F.3d 1147, 1150
(9th Cir. 2000)).
10 GUO V. SESSIONS
There, the police arrested Guo while he was attending
home-church services, which they deemed an illegal religious
gathering. Guo, 361 F.3d at 1197. After Guo asserted that he
had the right to be a Christian, an officer struck him in the
face twice, “ordered him to do push ups until he could no
longer stand it[,]” and then kicked him in the stomach. Id.
Guo was detained for a day and a half and released after
being forced to sign an affidavit attesting that he would no
longer believe in Christianity. Id.
A week later, Guo was visiting a congregant’s tomb and
witnessed a police officer removing a cross from it. Id.
When he attempted to stop the defacement, the officer used
an electric baton to subdue him. Id. at 1197–98. Guo was
then taken to the police station, where the same officer “hit
him in the face seven or eight times” and then beat him with
a plastic pole. Id. at 1198. Guo was detained for fifteen days.
Id. Afterwards, his employer terminated him, and he was
unable to find other work in China. Id. Although the IJ and
BIA denied Guo relief, we determined that the evidence
compelled the conclusion that these detentions and beatings
amounted to past persecution. Id. at 1203.
By contrast, we denied the petition in Gu, where Chinese
police arrested the petitioner for disseminating Christian
materials in public. 454 F.3d at 1017–18. During his
interrogation, the police struck Gu in the back with a rod ten
times. Id. at 1018. He “testified that he was in pain at the
time and that the strikes left temporary red marks, but
required no medical treatment[,]” and “that no scars, bruises,
welts, or injuries of any kind remain[ed].” Id. Although Gu
was required to report to the police every week for a period
of time, “he did not experience further problems, was able to
GUO V. SESSIONS 11
return to his government job, and obtained a valid passport to
leave China.” Id.
In distinguishing these facts from Guo, we reasoned that
“the petitioner [in Guo] was able to show repeated, lengthy
and severe harassment.” Id. at 1020. Gu, by contrast, “was
detained and beaten on only one occasion, Gu’s interrogation
lasted only two hours, Gu did not require medical treatment
and Gu did not have any adverse employment consequences.”
Id. Moreover, we found that the record did “not demonstrate
that Gu was objectively unable to attend his household
church. Although Gu testified that he ‘did not dare’ attend
his household church after his arrest, he also testified that the
authorities did not prevent him from attending the household
church.” Id. “Indeed, there [was] no suggestion in the record
that Gu was disallowed from meeting with and discussing his
religion with others or disallowed from praying or worshiping
outside his home. Other than ongoing prohibition on
distribution of contraband religious tracts, there [was] no
evidence in the record regarding any state-imposed limitation
on his right to practice his religion.” Id. at 1021 (emphasis
added).
The BIA here concluded that the instant case is more like
Gu than Guo because the detention at issue “was relatively
brief and [Petitioner] did not have any further interrogations
or any further physical mistreatment by the police during the
remainder of his detention.” Although the BIA did not
elaborate on why Petitioner’s beating did not amount to
persecution, the IJ concluded that his “treatment was less
severe than that in Guo, as [Petitioner] was only detained for
two days and hit a few times with a baton that did not leave
12 GUO V. SESSIONS
any lasting physical injuries.”4 The IJ also noted that
Petitioner sought only minor treatment after his release and
that there is “no evidence or testimony that his injuries persist
. . . as a result of these incidents.” Finally, while
acknowledging that Petitioner was no longer allowed to
attend home church, the BIA concluded that, “in contrast to
Guo, [Petitioner] was not asked to renounce his belief in
Christianity.” On appeal, the government advances these
same conclusions, which we find unpersuasive and
unsupported by the record.
Turning to Petitioner’s interrogation, the IJ’s comparison
of the beating he endured to the physical harm inflicted on the
petitioner in Guo is flawed for two reasons. First, the IJ
understated the severity of Petitioner’s beating. Petitioner
testified that the repeated baton blows to various parts of his
body left him unable to stand on his own and that the officers
therefore had to move him to a cell. Although he suffered no
permanent injuries, Petitioner still felt it necessary to be
examined at a hospital immediately upon his release, two
days after the beating.
Secondly, the IJ overstated the degree of harm the
petitioner in Guo experienced. We have explicitly rejected
the implication that our decision stemmed from the severity
of his beating, as “[t]here is no suggestion in Guo that [he]
4
The government agrees that where, as here, the BIA reviewed the
IJ’s decision for clear error and provided more than a “boilerplate
opinion,” we may nevertheless look to the “IJ’s oral decision as a guide
to what lay behind the BIA’s conclusion[s].” Tekle v. Mukasey, 533 F.3d
1044, 1051 (9th Cir. 2008) (alteration omitted) (quoting Kozulin v. INS,
218 F.3d 1112, 1115 (9th Cir. 2000)). “In so doing, we review . . . the
reasons explicitly identified by the BIA, and then examine the reasoning
articulated in the IJ’s oral decision in support of those reasons.” Id.
GUO V. SESSIONS 13
was significantly injured as a result of being hit in the face
seven or eight times and beaten with a plastic pole.” Mihalev
v. Ashcroft, 388 F.3d 722, 730 (9th Cir. 2004). Moreover, a
beating “may constitute persecution, even when there are no
long-term effects and the [petitioner] does not seek medical
attention.” Quan v. Gonzales, 428 F.3d 883, 888 (9th Cir.
2005) (rejecting the IJ’s conclusion that the petitioner’s
“electrocution with a rod was not sufficient to present a case
of persecution, because she did not report any resulting
‘medical attention or sustained injury’”). Indeed, “it would
be a strange rule if the absence or presence of a broken arm
were the dispositive fact” in determining whether a petitioner
experienced past persecution. Mihalev, 388 F.3d at 730.
But we need not decide whether Petitioner’s beating alone
amounted to persecution because his asylum claim is also
premised on his release conditions. In relying on the fact
that, unlike in Guo, Petitioner was not forced to disavow his
faith in writing, the BIA missed the forest for the trees; the
local police forbade Petitioner from attending his home
church and from thus practicing his religion. The form of
persecution that the petitioners in Guo and in this case
suffered was effectively the same: they could, in reality,
continue to believe privately whatever they chose to, but were
forbidden by the government from otherwise living a
Christian life. In evaluating religious persecution claims, we
have previously focused on how substantially the government
(or other individuals that it was unable or unwilling to
control) have restrained a petitioner’s practice of his or her
religion. Compare Krotova v. Gonzales, 416 F.3d 1080, 1086
(9th Cir. 2005) (finding that a petitioner’s “inability to
practice her religion [was] significant” in light of the fact that
“skinheads destroyed the makeshift synagogue at which
Petitioner worshiped and left her small congregation too
14 GUO V. SESSIONS
frightened to continue to gather”), with Nagoulko v. INS,
333 F.3d 1012, 1016 (9th Cir. 2003) (holding that the record
did not compel a finding of religious persecution where the
petitioner’s “religious practice and work was not free from
interruption or harassment,” but she was still able to practice
her faith by attending weekly home-church services and
worked full time at a mission).
Further, the degree of religious persecution in this case is
comparable to the persecution in Guo, where the petitioner
attested that he had been “coerced to sign a paper saying that
he would no longer believe in Christianity.” Guo, 361 F.3d
at 1202. Petitioner here was not forced to sign a document
formally renouncing his religion, but he was forced to sign a
document that informed him that he “was not allowed to
participate in the home church for Christianity anymore.”
Moreover, the police here actively ensured that Petitioner
could not practice his faith, forcing him and fellow
congregants to report to the police station weekly and
threatening him with arrest for noncompliance.5 Together
with the beating Petitioner suffered, there is compelling
evidence of the scope and seriousness of the government’s
practices. Religious persecution may take different forms.
We cannot meaningfully distinguish between a government
forcing a petitioner to renounce his beliefs and a government
forcing a petitioner to abandon his religious worship.
5
During oral argument, the government asserted that Petitioner was
prohibited only from attending his particular home church and that he
therefore could have potentially worshiped at a church associated with a
different Christian denomination. Even if true, we reject the proposition
that the existence of state-sanctioned congregations—a notion antithetical
to the freedom of religion—somehow mitigates the persecution that
Petitioner suffered.
GUO V. SESSIONS 15
The government nonetheless argues that this case is more
comparable to Gu, framing Petitioner’s experience as a
“single, isolated encounter with the authorities.”6 Gu,
454 F.3d at 1020. This contention disregards the reality that,
because Petitioner was forbidden from attending church and
required to report to the police weekly, his persecution was
ongoing. Indeed, we distinguished Gu—where we denied the
petition for review—from Guo on the critical point that “there
[was] no evidence in [Gu] regarding any state-imposed
limitation on [Gu’s] right to practice his religion.” Id. at
1021. Here, the opposite is true.
Finally, we acknowledge the government’s submission of
out-of-circuit authorities after oral argument, but we find
them inapposite or otherwise unpersuasive. Of the two
published decisions cited, only one addressed a claim of past
persecution premised on Chinese authorities forcing the
petitioner to sign a guarantee letter promising not to attend a
home church.7 Xue v. Lynch, 846 F.3d 1099, 1102, 1106–07
6
We note that the government’s approach to distinguishing Gu from
Guo—one beating in the former versus two beatings in the latter—is
overly formalistic and can lead to absurd results. The police beat the
petitioner in Guo a second time only because he opposed their defacement
of a Christian tomb. By contrast, Petitioner here was very likely spared
a subsequent beating only because he complied with the religiously-
oppressive release conditions under threat of future detention and physical
harm. Guo does not stand for the proposition that a member of a religious
minority must place himself in physical danger in order to practice or
defend his faith before being able to demonstrate that he was persecuted.
7
In Ai Hua Chen v. Holder, the petitioners did “not claim to have
suffered past persecution, but [sought] asylum based on their fear of future
persecution.” 742 F.3d 171, 178 (4th Cir. 2014). Accordingly, the Fourth
Circuit addressed only whether the documentary and testimonial evidence
presented compelled the conclusion that Chinese authorities would harm
16 GUO V. SESSIONS
(10th Cir. 2017). In Xue, the Tenth Circuit primarily rejected
the petitioner’s proposed bright-line rule “that any time an
asylum seeker was ordered, under threat of penalty, to stop
practicing his religion, persecution is established.” Id. at
1108. Petitioner here, however, does not argue for a
comparable bright-line rule. And on its facts, Xue is
distinguishable because, unlike this case, the petitioner there
returned to his home church two weeks after his detention and
beating without further consequences. Id.
Accordingly, when we consider the record as a whole, we
are compelled to conclude that Petitioner suffered past
religious persecution. Because Petitioner is therefore entitled
to a presumption of future persecution, we will remand this
case to the BIA to determine in the first instance whether the
government can rebut that presumption for his asylum and
withholding claims. See Mamouzian v. Ashcroft, 390 F.3d
1129, 1135 (9th Cir. 2004).
B. CAT claim
“To qualify for CAT relief, a petitioner must establish that
‘it is more likely than not that he or she would be tortured if
the petitioners for attending a home church. See id. at 183 (“Although
these materials certainly reported isolated cases of official harassment, the
general picture presented by both reports was simply that official
treatment of Christians who attend unregistered house churches varies
substantially based on locale and that such Christians in many regions
practice their religion without interference.”). The court therefore had no
cause to consider whether being forbidden from attending a home church
amounted to persecution.
We decline to address the remainder of the government’s cited
authorities, as they are unpublished dispositions.
GUO V. SESSIONS 17
removed to the proposed country of removal.’” Cole v.
Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting 8 C.F.R.
§ 208.16(c)(2)). “In other words, [Petitioner] ‘must show
only a chance greater than fifty percent that he will be
tortured if removed to’” China. Id. (quoting Hamoui v.
Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004)). “Torture is
defined, in part, as ‘any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person . . . for any reason based on discrimination of any
kind.’” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079
(9th Cir. 2015) (quoting 8 C.F.R. § 1208.18(a)(1)). This
concept “is more severe than persecution . . . .” Nuru v.
Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005).
Here, Petitioner merely contends that he will be arrested
upon his return to China, contending that this would
constitute torture. But such a summary assertion does not
provide the substantial evidence—or any
evidence—necessary to overcome the BIA’s conclusion that
he has not demonstrated a likelihood of being tortured in
China. Accordingly, we deny the petition as to the CAT
claim.
IV. CONCLUSION
We GRANT Zhihui Guo’s petition for review in part as
to his claims for asylum and withholding of removal. Having
determined that the record compels a finding of past
persecution, we REMAND this case to the BIA in order for
it to apply the resulting presumption of future persecution.
We DENY the petition in part as to his CAT claim.
Costs are to be taxed against Respondent.