Mingzhu Li v. Loretta E. Lynch

Opinion

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT FILED APR 08 2016 MINGZHU LI, No. 14-71556 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Petitioner, Agency No. A098-468-123

v. ORDER LORETTA E. LYNCH, Attorney General,

Respondent.

Before: MURPHY,* PAEZ, and NGUYEN, Circuit Judges.

The motion to amend is GRANTED. The prior memorandum disposition

filed on March 30, 2016 is hereby amended. The amended memorandum

disposition filed concurrently with this order.

* The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. FILED NOT FOR PUBLICATION APR 08 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINGZHU LI, No. 14-71556

Petitioner, Agency No. A098-468-123

v. AMENDED MEMORANDUM* LORETTA E. LYNCH, Attorney General,

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

Submitted March 8, 2016** Pasadena, California

Before: MURPHY,*** PAEZ, and NGUYEN, Circuit Judges.

Mingzhu Li appeals the decision by the Board of Immigration Appeals

(BIA) denying her applications for asylum and withholding of removal.

* 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). *** The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. We affirm that substantial evidence supports the BIA’s determination that Li

did not suffer past persecution. Gu v. Gonzales, 454 F.3d 1014, 1019-22 (9th Cir.

2006). However, the BIA incorrectly determined that Li failed to show a nexus

between her claims of future persecution and a protected ground. The record

compels the conclusion that Li’s political opinion is “one central reason” that she

fears persecution upon returning to China. 8 U.S.C. § 1158(b)(1)(B)(i).

Li, a Chinese citizen, supervised about 100 workers at a state-owned paper

mill. When her numerous complaints to management about unexplained

reductions in workers’ salaries were ignored, Li helped to organize and attended a

peaceful demonstration seeking a government solution to the corruption. After

police raided the rally, Li was detained and interrogated. Li expressed her political

opinion that the government should address the workers’ demands to authorities

both at the protest and during questioning. At a second rally that Li organized to

protest the government’s lengthy detention of two of her coworkers, police officers

violently targeted and physically restrained Li. Li escaped, and that same evening

the police came looking for her at her home. Since that time, police continued to

check for Li at her home every three to five months, and two of her co-organizers

were sentenced to prison.

2 The BIA erred in concluding that Li’s participation in a demonstration

motivated by the nonpayment of wages, coupled with her pro-labor, anti-

corruption statements made to government officials, did not create a nexus to her

political opinion. We have found labor speech to be political even when motivated

by economic interests. Hu v. Holder, 652 F.3d 1011, 1018 (9th Cir. 2011).

Officials’ accusations that Li was a “conspirator” and a “plotter behind the curtain”

indicate that her arrest was motivated by an imputed anti-government or pro-labor

political opinion, either of which satisfies the nexus requirement. See id. at 1017.

The fact that she denied these accusations is immaterial. Id. Further, by leading

the second demonstration protesting the detention of her fellow workers, Li

expressed an anti-government political opinion. Id. at 1017-18. Finally, because

officials had no legitimate prosecutorial purpose for detaining and physically

abusing Li, the record compels the conclusion that she was targeted on account of

her actual or imputed political opinion.1 Li v. Holder, 559 F.3d 1096, 1113 (9th

Cir. 2009).

1 The dissent argues that Li’s detention, as well as the two-year prison sentences that her co-workers received, could have been predicated upon the offense of disturbing the peace. Based on the peaceful nature of the protests, substantial evidence does not support this conclusion.

3 The record also compels the conclusion that Li has a well-founded fear of

future persecution on the basis of a protected ground. Li has already been detained

once, and two of her colleagues were sentenced to prison. The police’s continued

visits to her husband’s home–which spanned at least seven years–indicate that the

government maintains a strong interest in her whereabouts. See Hoxha v. Ashcroft,

319 F.3d 1179, 1184 (9th Cir. 2003) (holding that the government’s continued

efforts to detain the applicant demonstrated a particularized risk of future

persecution). Li’s numerous complaints to executives at a government-run

company, her organizational role in the protests, and the fact that officials came to

her home for the first time soon after the second protest show that there is a

“reasonable possibility” Li will be persecuted if she returns to China. 8 C.F.R. §

1208.13(b)(2)(i).

Because Li has established a well-founded fear of future persecution on

account of a protected ground, we need not reach her withholding of removal

claim.

Each side shall bear its own costs.

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED for further proceedings.

4 FILED Mingzhu Li v. Lynch, No. 14-71556 APR 08 2016

MURPHY, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I agree that substantial evidence supports the BIA’s conclusion Li

failed to demonstrate past persecution. I disagree, however, with the

majority’s assertion that the record compels the conclusion there is a nexus

between Li’s political opinion and any potential persecution she might

suffer upon return to China.

To establish a well-founded fear of future persecution, Li must show

her “fear of persecution is subjectively genuine and objectively

reasonable.” Bringas-Rodriguez v. Lynch, 805 F.3d 1171, 1182 (9th Cir.

2015) (quotation omitted). While Li’s subjective fear of future persecution

based on political opinion may be genuine, the record does not compel the

conclusion that her fear is objectively reasonable.

The record does not conclusively establish that the purpose of the

first rally was political, rather than economic, in nature. Hu v. Holder, 652

F.3d 1011, 1018 (9th Cir. 2011) (noting there is “no easy test” to make that

determination). Instead, it can be read to support the BIA’s determination

that the protestors, specifically including Li, were seeking the assistance of

the local government to correct mismanagement at the mill and that Li’s

actions, in this particular case, were economic rather than political. Nor does the record support the majority’s conclusion that Li expressed her

political opinions during questioning by authorities. During that

interrogation, Li denied being an organizer of the protest and stated she

merely wanted authorities to pay attention to the difficulties of the

employees. 1 Unlike the other organizers, Li was quickly released from

custody. For these reasons, the majority’s reliance on Zhiqiang Hu v.

Holder, a case involving interrogators imputing a specific anti-government

opinion to the petitioner, is misplaced. 652 F.3d 1011, 1017-18 (9th Cir.

2011); see also INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)

(holding that on appeal a petitioner must come forward with such

compelling evidence of her persecutors’ motives that no reasonable

factfinder would rule against her).

The record does not compel the conclusion Chinese authorities

“violently targeted” Li at the second protest. Instead, the record fully

supports the BIA’s determination that the authorities did not know Li was

an organizer of the second protest at any point prior to the confrontation

between the police and the protestors. The record likewise supports the

1 The majority asserts authorities “accused” Li of being a “conspirator” and “plotter behind the curtain.” The BIA reasonably interpreted the interrogation as questioning whether Li was an organizer, rather than accusing her of being one. 2 BIA’s determination that the baton blow and kick suffered by Li were the

result of the chaotic situation, rather than a targeted attack. 2

That leaves the following facts: authorities came to Li’s home to look

for her the night of the second protest, have continued to go to her house to

check for her presence, and two other protest organizers have been

imprisoned. The record does not, however, indicate upon what basis Li’s

co-organizers were imprisoned. It is entirely possible they were cautioned

after the first protest, as was Li, to avoid activities that might lead to public

unrest (i.e., large street rallies) and were imprisoned when they failed to

comply with these directives. See Elias-Zacarias, 502 U.S. at 483-84.

Although the record in this case would allow a factfinder to conclude

there was a nexus between any persecution Li might suffer upon her return

2 In support of the assertion Chinese authorities violently targeted Li, the majority relies on a narrow portion of the record. The only pertinent portion is the following statement from Li: “The police, after getting out of their vehicles, started to, you know, catch and we, several leaders, and they whipped their police batons onto our employers.” This ambiguous statement is not sufficient to mandate a finding that authorities “targeted” Li at the second protest. This is especially true when one considers the broader record. That is, the record supports the BIA’s conclusion authorities did not know Li was an organizer at any point prior to the second protest; demonstrates Li just happened to be walking toward the front of the group of protestors; and supports the BIA’s finding that the blows resulted from chaotic police/protestor interactions, rather than from targeted violence. Thus, the record does not compel the conclusion Li was “targeted” for her political opinion at the second protest. 3 to China and a political opinion imputed to her by Chinese authorities, the

record does not compel such a conclusion. As a consequence, there exists

substantial evidence to support the BIA’s no-nexus finding. Id. For that

reason, I respectfully dissent.