Tianhai Cui v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2019
• Docket: 15-72820
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 25 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIANHAI CUI; WENWU CUI, No. 15-72820

Petitioners, Agency Nos. A099-724-518 A099-724-517 v.

MATTHEW G. WHITAKER, Acting MEMORANDUM* Attorney General,

Respondent.

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

Argued and Submitted January 11, 2019 Pasadena, California

Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,** District Judge.

Petitioners Tianhai Cui (“Cui”) and his son Wenwu petition for review of

the denial of their applications for asylum; Cui also petitions for review of the

denial of his application for withholding of removal and protection under the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Convention Against Torture (“CAT”). We grant the petition as to the claims for

asylum and withholding of removal and remand for further proceedings on those

claims. We deny the petition as to the CAT claim.

1. The Board of Immigration Appeals (“BIA”) and Immigration Judge

(“IJ”) determined that Cui did not credibly testify about the circumstances of his

arrest in China. But Cui never mischaracterized the circumstances of his arrest; his

testimony was consistent and was not contradicted by any other evidence in the

record. He consistently claimed that his argument with his neighbor was a

property dispute and that the neighbor had knowledge of Cui’s wife and daughter’s

practice of Christianity. Cui also consistently claimed that after his neighbor

reported him to the authorities, the police interrogated Cui about both the

underground church in his house and the altercation with his neighbor. Therefore,

the BIA’s adverse credibility determination was not supported by substantial

evidence. See Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017).

Furthermore, the IJ did not give Cui adequate notice of the need to provide

corroborative testimony from his son and daughter. The IJ asked Cui for specific

corroborating evidence—which Cui provided—but never asked for testimony from

Cui’s son or daughter. Later, the IJ and the BIA used the lack of testimony from

Cui’s son or daughter to discredit Cui’s testimony and support an adverse

2 credibility finding. The IJ’s failure to give proper notice and an opportunity to

provide this testimony was a significant error, and this lack of corroboration cannot

be held against Cui to support an adverse credibility finding. See Bhattarai v.

Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016).

2. The BIA also concluded that even if Cui’s testimony was credible, he

did not suffer past persecution. But a finding of past persecution is compelled by

the record based on the totality of the circumstances of Cui’s arrest: he was

electrically shocked and kicked for about ten minutes, held in detention for seven

days, forced to confess to his wife’s “crimes,” and admit that the church meeting in

his house was illegal. After his release, he was required regularly to check in with

the police. See Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018); Quan v. Gonzales,

428 F.3d 883, 888–89 (9th Cir. 2005) (“Using an electrically-charged baton on a

prisoner . . . may constitute persecution, even when there are no long-term effects

and the prisoner does not seek medical attention.”). Cui suffered persecution based

on his imputed religion. The underground church was a central reason for Cui’s

arrest and a central topic of the interrogation, even if not the sole reason or topic.

See 8 U.S.C. § 1158(b)(1)(B)(i); see also Parussimova v. Mukasey, 555 F.3d 734,

741 (9th Cir. 2009).

3 A finding of past persecution creates a rebuttable presumption of a well-

founded fear of future persecution. Because Cui testified credibly and established

that he suffered past persecution on the basis of his imputed religion, we remand in

order to afford the government the opportunity to rebut this presumption by

showing a fundamental change in circumstances such that Cui no longer has a

well-founded fear of persecution. See Deloso v. Ashcroft, 393 F.3d 858, 863–64

(9th Cir. 2005).

3. We deny Cui’s petition as to his CAT claim. Cui has not shown it is

more likely than not that he would be tortured if he is returned to China. He claims

only that he would “be arrested and put into prison against [his] freedom” if he

returned, which would not qualify as torture. See Guo, 897 F.3d at 1217.

DENIED in part, GRANTED and REMANDED, in part.