Bingwei Liu v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION MAR 29 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BINGWEI LIU, No. 14-72141
Petitioner, Agency No. A088-116-463
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 8, 2016
Pasadena, California
Before: MURPHY,** PAEZ, and NGUYEN, Circuit Judges.
Bingwei Liu, a native and citizen of China, petitions for review of the
order of the Board of Immigration Appeals (“BIA”) dismissing his appeal
from an immigration judge’s decision denying his application for asylum
*
This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael R. Murphy, Senior Circuit Judge for the
U.S. Court of Appeals, Tenth Circuit, sitting by designation.
and withholding of removal. This court has jurisdiction under 8 U.S.C.
§ 1252, and we review the BIA’s determination for substantial evidence.
Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th Cir. 2006). To prevail
on appeal, Liu must show the record not only supports, but compels the
conclusion that the findings and decision of the BIA are erroneous. Singh
v. INS, 134 F.3d 962, 966 (9th Cir. 1998). We deny the petition in part,
grant it in part, and remand to the BIA for further proceedings.
Liu’s application alleged past and future persecution based on both
political opinion and religion. His political-opinion asylum claim was
based on his opposition to China’s family planning policy. Having
reviewed the record in its entirety, we conclude it does not compel the
conclusion that any economic harm Liu suffered when the government
terminated his family’s land lease rose to the level of persecution.
Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir. 2004) (“[M]ere
economic disadvantage alone does not rise to the level of persecution.”).
Substantial evidence supports the BIA’s determination that Liu is not
entitled to asylum based on past persecution for his political beliefs. 1
1
To be entitled to withholding of removal, a petitioner must
demonstrate “it is more likely than not” that his life or freedom would be
threatened by persecution based on his race, religion, nationality,
(continued...)
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As to Liu’s asylum claim based on his religious beliefs, the totality of
the circumstances compels the conclusion Liu suffered past persecution on
account of his Christian religion. See Korablina v. INS, 158 F.3d 1038,
1044 (9th Cir. 1998) (“The key question is whether, looking at the
cumulative effect of all the incidents a petitioner has suffered, the treatment
she received rises to the level of persecution.”). Liu was arrested by
Chinese authorities while attending Christian services at a home church.
He was held at gunpoint, handcuffed, and transported to a detention
facility. On the first day of his detention, Liu was physically assaulted by
police officers during an interrogation. He was also instructed to stand
motionless with his face against a wall and was struck with a baton when he
moved. During a second interrogation, Liu was hit with a baton when he
refused to provide the names of other members of his church. Liu was
interrogated a third time and beaten when he refused to plead guilty. Liu
remained in detention for seventeen days. He was released only after he
1
(...continued)
membership in a particular social group, or political opinion. Kamalthas v.
INS, 251 F.3d 1279, 1283 (9th Cir. 2001). This standard is more stringent
than the “well-founded fear” standard governing asylum claims. Al-Harbi v
INS, 242 F.3d 882, 888-89 (9th Cir. 2001). Because Liu is not entitled to
asylum on his political opinion claim, he is also not entitled to withholding
of removal on that claim. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150
(9th Cir. 2000).
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signed a forced confession and paid a fine. See Guo v. Ashcroft, 361 F.3d
1194, 1203 (9th Cir. 2004) (holding a finding of persecution was compelled
in a situation where petitioner was detained for a day and a half, physically
assaulted, and coerced into signing an affidavit promising not to practice
Christianity).
Because Liu established past persecution, he is entitled to a rebuttable
presumption that he has a well-founded fear of future persecution on the
basis of his religion, and the evidentiary burden shifts to the government to
rebut the presumption. See Ahmed v. Keisler, 504 F.3d 1183, 1197 (9th
Cir. 2007); 8 C.F.R. § 208.13(b)(1). Accordingly, we remand for the BIA
to decide in the first instance whether the government can meet its burden
to rebut the presumption. See INS v. Ventura, 537 U.S. 12, 16–18 (2002)
(per curiam).
DENIED in part, GRANTED in part, and REMANDED for further
proceedings.
The parties shall bear their own costs on appeal.
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