Hao Lin v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2019
• Docket: 17-73053
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HAO LIN, No. 17-73053

Petitioner, Agency No. A209-869-002

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted March 8, 2019 Pasadena, California

Before: WARDLAW and BENNETT, Circuit Judges, and CARDONE, ** District Judge.

Hao Lin, 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 (“IJ”) denial of his applications for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. jurisdiction under 8 U.S.C. § 1252. We grant Lin’s petition in part, deny it in part,

and remand to the BIA for further proceedings.

Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874

(BIA 1994), to adopt and affirm the IJ’s decision, but also provides its own review

of the evidence and law, we review both the IJ’s and BIA’s decisions. See Ali v.

Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). We review questions of law de novo

and questions of fact for “substantial evidence.” Id. at 1028–29. We also 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 v. Sessions,

861 F.3d 1003, 1007 (9th Cir. 2017). We may reverse the agency’s factual

findings only if the record “compels” a contrary conclusion. Id. (quoting Rizk v.

Holder, 629 F.3d 1083, 1087 (9th Cir. 2011)).

1. The IJ and BIA denied Lin’s asylum application after deciding he had not

suffered past persecution in China and did not have a well-founded fear of future

persecution. The agency’s finding that Lin did not suffer past persecution is not

supported by substantial evidence. The IJ found Lin’s testimony credible but

decided his mistreatment by Chinese authorities on account of his religion did not

rise to the level of persecution. However, the IJ misapplied our opinion in Guo v.

Ashcroft, 361 F.3d 1194 (9th Cir. 2004). The petitioner in that case experienced

2 17-73053 two episodes of mistreatment in China, and we held that each episode

independently rose to the level of past persecution. Id. at 1203. Lin’s arrest,

fifteen-day detention, two- to three-hour interrogation, forced exercise, and

repeated physical abuse surpassed the level of mistreatment that Guo faced during

his first instance of persecution. See id. at 1197–98. Moreover, Lin’s mistreatment

is distinguishable from that in Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006), upon

which the IJ and BIA relied. Lin faced a lengthier detention, was forced to run

long distances and to perform pushups, and lost his job. Cf. id. at 1017–18, 1021

(finding no persecution where petitioner was arrested by Chinese authorities and

detained for three days, interrogated for two hours, hit approximately ten times,

required to report to the police station four or five times, and returned to his

government job “without any negative consequences”). Accordingly, the record

compels the conclusion that Lin suffered past persecution. See Guo, 361 F.3d at

1203.

After deciding Lin did not suffer past persecution, the IJ and BIA considered

whether Lin had independently established a well-founded fear of future

persecution, and found that he had not. “Because the agency made a full and

reasoned determination on the question of well-founded fear, we do not remand,”

and instead we review the decision for substantial evidence. See Mamouzian v.

Ashcroft, 390 F.3d 1129, 1135 (9th Cir. 2004).

3 17-73053 To qualify for asylum based on fear of future persecution, Lin’s fear “must

be both subjectively genuine and objectively reasonable.” See id. (alteration and

citation omitted). A petitioner’s credible testimony that he or she genuinely fears

persecution satisfies the subjective component. Id. at 1136. “The reasonableness

of the fear must be determined in the political, social and cultural milieu of the

place where the petitioner lived, and even a ten percent chance of persecution may

establish a well-founded fear.” Id. at 1135–36 (alteration and citation omitted).

The agency correctly determined that Lin satisfies the subjective component

of the well-founded fear test based on his credible testimony. See id. at 1136.

However, substantial evidence does not support the agency’s finding that Lin’s

fear is not objectively reasonable. To begin, this finding was based in part upon

the agency’s incorrect conclusion that Lin did not face past persecution. Yet,

because Lin has established past persecution, he is entitled to a presumption of a

well-founded fear of future persecution. See Smolniakova v. Gonzales, 422 F.3d

1037, 1051 (9th Cir. 2005). In addition, the IJ and BIA failed to address that

Chinese authorities threatened Lin with more harm if he were again arrested for

practicing his religion. Threats are “evidence probative of the reasonableness of a

fear of future persecution,” and the agency erred by not considering this threat.

See Gui v. INS, 280 F.3d 1217, 1229 (9th Cir. 2002). The IJ and BIA also erred by

not considering the letter Lin’s father submitted, which stated that after Lin left

4 17-73053 China, the police notified his parents that Lin “should turn himself into the

authorities” if he returns. See id.

The agency also wrongly concluded that “the documentary evidence”—

namely, the country-conditions reports Lin had filed—“does not establish that

[Lin] . . . would be persecuted on account of a religious belief.” The agency

“mischaracterize[ed] the conclusions of the reports” by ignoring large portions

indicating Lin’s risk of future harm in China. See Mamouzian, 390 F.3d at 1137.

Viewing these reports in their entirety, they “actually bolster,” rather than

undermine, Lin’s testimony. See id. Although the reports acknowledge “some

improvements in the ability of some house churches to meet and operate” in China,

proselytizing in public “is not permitted,” and Chinese authorities “still regularly

harassed and detained small groups that met for religious purposes in homes and

other locations.” Moreover, “adherents of both registered and unregistered

religious groups” were “physically abused, detained, arrested, tortured, sentenced

to prison, or harassed” for their “religious beliefs and practices.” And, while the IJ

correctly noted that the reports “do not highlight any such practices in the Fujian

region,” where Lin lived, they apparently emphasize only a small number of well-

publicized cases of abuse occurring in the years preceding publication. By no

means do they purport to be exhaustive of every major incident of abuse. Indeed,

the reports explain that religious oppression occurs “[t]hroughout the county.”

5 17-73053 The reports also give credence to Lin’s testimony that he would easily be

identified and rearrested if he returned to China. China has “issued a directive

mandating the establishment of a centralized ‘social credit system’ to evaluate the

trustworthiness of all individuals” in the country. The system is intended to

subject people “to targeted daily monitoring, random inspections, and possible

arrest and criminal prosecution” for “trust-breaking” conduct. To this end, China

has installed “tens of millions of surveillance cameras throughout the country to

monitor the general public,” and has “covered every corner” of Beijing with a

video surveillance system.

In sum, then, Lin presented credible, direct, and specific evidence from

which “no reasonable fact-finder could conclude that [he] has less than a ten

percent chance of future persecution” in China. See Smolniakova, 422 F.3d at

1051. The record thus compels the conclusion that Lin has a well-founded fear of

future religious persecution. See id. at 1050; Mamouzian, 390 F.3d at 1137–38.

Lin is statutorily eligible for asylum. See Smolniakova, 422 F.3d at 1053;

Mamouzian, 390 F.3d at 1138. Accordingly, we grant Lin’s petition for review

with regard to his asylum claim and remand for the Attorney General to exercise

his discretion whether to grant asylum. See Singh v. Holder, 764 F.3d 1153, 1163

(9th Cir. 2014); Smolniakova, 422 F.3d at 1053.

6 17-73053 2. The IJ also denied Lin’s application for withholding of removal,

explaining that since he had failed to qualify for asylum, he necessarily “failed to

meet the higher burden required for relief under withholding of removal.” The

BIA affirmed this decision.

However, because the record compels the conclusion that Lin experienced

past persecution, he is presumed eligible for withholding of removal. See Vitug v.

Holder, 723 F.3d 1056, 1064 (9th Cir. 2013). To rebut this presumption, “the

government must show by a preponderance of the evidence that there has been a

fundamental change in circumstances such that the petitioner’s life or freedom

would not be threatened or that the petitioner could relocate internally within his

home country to avoid persecution.” See id. at 1065 (alterations and internal

quotation marks omitted) (quoting 8 C.F.R. § 1208.16(b)(1)). We therefore grant

Lin’s petition with regard to his withholding of removal claim and remand to the

BIA to decide in the first instance whether the government can meet its burden of

rebuttal. See Mihalev v. Ashcroft, 388 F.3d 722, 731 (9th Cir. 2004).

3. Lastly, the IJ and BIA denied Lin’s application for protection under CAT.

Lin waived his challenge to this denial by failing to substantively address it in his

petition for review. See Rios v. Lynch, 807 F.3d 1123, 1125 n.1 (9th Cir. 2015)

(explaining the petitioner had “abandoned his claims for asylum and CAT

7 17-73053 protection by not addressing them with any specificity in his briefs”). As a result,

we deny Lin’s petition for review with regard to his CAT claim.

GRANTED in part, DENIED in part, and REMANDED for further

proceedings.

8 17-73053 FILED Lin v. Barr, No. 17-73053 APR 11 2019 MOLLY C. DWYER, CLERK BENNETT, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS

I agree with the majority’s holding regarding Lin’s withholding of removal

and CAT claims. I also agree that the record compels the conclusion that Lin

suffered past persecution, which raises a presumption that Lin has a well-founded

fear of future persecution. See Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir.

2018). I respectfully dissent, however, from the majority’s decision that the record

compels the conclusion that Lin has a well-founded fear of future persecution.

“Our review of the BIA’s determination that an applicant has not established

eligibility for asylum is highly deferential.” Gu v. Gonzales, 454 F.3d 1014, 1018

(9th Cir. 2006). “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.” Id. “This ‘strict standard’ precludes us from ‘independently weighing

the evidence and 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)).

To establish asylum eligibility based on a well-founded fear of future

persecution, a petitioner’s fear must be both “subjectively genuine and objectively

reasonable.” Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (internal

brackets omitted) (quoting Arriaga-Barrientos v. INS, 925 F.2d 1177, 1178 (9th

1 Cir. 1991)). Here, the agency determined that Lin subjectively fears persecution,

but that Lin’s fear is not objectively reasonable.

In my view, the record does not compel a conclusion that Lin’s fear is

objectively reasonable. As noted by the immigration judge (“IJ”), after Lin’s

arrest, he was able to attend house church gatherings at the same house twice

without incident, and the house church continued to hold regular gatherings even

though the house church leader was arrested at the same time as Lin. Further,

when asked by the IJ why he returned to the house church only twice after his

arrest, Lin responded that it was because “his parents were more strict.” Lin also

stated that he would continue attending church in China if he returned.

The majority places significant weight on the country-conditions reports in

the record to support its conclusion that Lin’s fear is objectively reasonable.1 But

the country-conditions reports present a mixed picture of the treatment of

Christians in China. For example, one report states that local authorities punished

members of Christian house churches, but also states, in the same paragraph, “[i]n

some parts of the country, however, local authorities allowed or at least did not

interfere with the activities of unregistered religious groups.” Significantly, the

1 The majority references a “social credit system” in China. I note that the country- conditions reports indicate that the Chinese government issued a directive mandating the establishment of a centralized “social credit system,” but it is unclear from the record whether or to what extent this system has been established in China. 2 reports do not highlight house church incidents in the Fujian region, where Lin is

from.

While the majority points to evidence that could support a conclusion that

Lin’s fear is objectively reasonable, that evidence, when considered with the rest of

the record, does not compel such a conclusion, given the highly deferential

standard of review. See Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007)

(en banc) (“We must uphold the BIA’s determination unless ‘the evidence not only

supports, but compels the conclusion that the asylum decision was incorrect.’

Even if we might have reached a conclusion different from that reached by the

BIA, we may not reverse unless we determine that any reasonable factfinder would

have been compelled to reach that conclusion.” (citation omitted)).

I would therefore grant Lin’s petition for review as to his asylum claim and

direct the BIA, on remand, to determine whether the government can rebut the

presumption of a well-founded fear of future persecution.2 See 8 C.F.R.

§ 208.13(b)(1).

2 During oral argument, counsel for both parties indicated that remand would be the appropriate remedy. 3