Cheng Xu v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHENG XU, No. 15-72081
Petitioner, Agency No. A089-882-703
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2018**
Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,*** Chief
District Judge.
Cheng Xu, a citizen of China, petitions for review of the Board of
Immigration Appeal’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
decision finding him ineligible for asylum and withholding of removal as an alien
who has been persecuted on account of religion under the Immigration and
Nationality Act (“INA”) §§ 208 and 241, 8 U.S.C. §§ 1158(b)(1) and
1231(b)(3)(A). We have jurisdiction to review the BIA’s final order of removal
and denial of asylum under 8 U.S.C. § 1252, and we reverse.
The BIA conducted a de novo review of Xu’s claims and did not expressly
adopt the IJ’s opinion; accordingly, this Court need only review the decision of the
Board itself, not the decision of the IJ. Hosseini v. Gonzales, 471 F.3d 953, 957
(9th Cir. 2006). We review questions of fact for substantial evidence. See Hoque
v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004). Where evidence may support a
contrary finding but does not compel it, this Court does not reverse BIA decisions.
See 8 U.S.C. § 1252(b)(4); I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)
(“To reverse the BIA finding we must find that the evidence not only supports that
conclusion, but compels it.” (emphasis in original)).
Substantial evidence does not support the IJ’s conclusion that Xu failed to
establish asylum eligibility on the basis of past persecution under 8 C.F.R.
§ 1208.13(b)(1). Xu, an adherent of the Christian faith, was arrested with his
fellow believers during a prayer meeting held in the home of another member of
the fellowship. Chinese police detained Xu for fifteen days. During that time, Xu
was interrogated, accused of participating in an “evil cult,” slapped, punched,
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kicked to the ground, and beaten while on the ground. The police released Xu only
after his parents paid an 8,000 RMB bond and, as conditions for his release, Xu
was prohibited from speaking to anyone about his treatment during detention,
prohibited from contacting members of his Christian fellowship, and required to
report weekly to the police. Xu reported to the police a total of twenty-eight times
before leaving China six months later. Considering the totality of the
circumstances, including Xu’s prohibition from Christian fellowship, these actions
compel a finding of persecution. See Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th
Cir. 2004) (concluding that the totality of the circumstances compelled a finding of
persecution where petitioner was detained for a day and a half and coerced into
signing a document saying he would no longer believe in Christianity).
Accordingly, the BIA erred in concluding that Xu did not suffer past persecution.
Because we conclude that Xu has established past persecution, he is entitled
to a rebuttable presumption of a well-founded fear of future persecution under 8
C.F.R. § 1208.13(b)(1). “The government must then rebut that presumption by
demonstrating by a preponderance of evidence that circumstances have
fundamentally changed or that relocation is possible, so that the petitioner no
longer has a well-founded fear that [he] would be persecuted.” Mohammed v.
Gonzales, 400 F.3d 785, 798–99 (9th Cir. 2005) (citing 8 C.F.R. § 1208.13(b)(1)(i)
(2005)). Just as in the asylum context, the establishment of past persecution on the
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basis of religion entitles Xu to a presumption that his “life or freedom would be
threatened in the future in the country of removal” for purposes of the regulatory
scheme governing the relief of withholding of removal. Qu v. Gonzales, 399 F.3d
1195, 1198 (9th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)(1)(i) (2005)). Again,
the presumption can be rebutted by the government by a preponderance
of the evidence if either of two exceptions, which mirror those in the
asylum context, is proved: (1) ‘[t]here has been a fundamental change
in circumstances such that the applicant’s life or freedom would not be
threatened . . .’ or (2) ‘[t]he applicant could avoid a future threat to his
life or her life or freedom by relocating to another part of the proposed
country of removal . . . .’
Id. (quoting 8 C.F.R. § 1208.16(b)(1)(i)). However, because neither the IJ nor the
BIA reached these questions with the burden appropriately placed on the
Government, we remand to the agency for a determination of whether the
Government can rebut these presumptions. See Guo, 361 F.3d at 1204; see also
Chand v. I.N.S., 222 F.3d 1066, 1079 (9th Cir. 2000) (“[W]e have long held that
the determination of whether or not a particular applicant’s fear is rebutted by
general country conditions information requires an individualized analysis that
focuses on the specific harm suffered and the relationship to it of the particular
information contained in the relevant country reports.”); I.N.S. v. Ventura, 537 U.S.
12, 16 (2002) (holding that “a court of appeals should remand a case to an agency
for decision of a matter that statutes place primarily in agency hands.”).
PETITION GRANTED and REMANDED.
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