Wenbin Liu v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2021
• Docket: 18-73026
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WENBIN LIU, No. 18-73026

Petitioner, Agency No. A077-317-081

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 10, 2021** Pasadena, California

Before: M. SMITH, MURGUIA, and OWENS, Circuit Judges.

Petitioner Wenbin Liu, a native and citizen of China, petitions for review of

the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from

the Immigration Judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Reviewing the agency’s

“denials of asylum, withholding of removal, and CAT relief for substantial

evidence,” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (internal

quotation marks omitted), we deny the petition.

1. To qualify for asylum, Liu must show past persecution or a well-founded

fear of future persecution on account of a protected ground. 8 U.S.C.

§§ 1101(a)(42), 1158(b); 8 C.F.R. § 1208.13(b). Substantial evidence supports the

agency’s conclusion that Liu did not show past persecution or a well-founded fear

of persecution in China on account of his religion.

Liu argues that his arrest, detention, assault, and release conditions show that

he experienced past persecution in China. The record, however, does not compel

that conclusion. See Korablina v. INS, 158 F.3d 1038, 1043 (9th Cir. 1998)

(explaining that under substantial evidence review, the agency’s determination can

be reversed only where “the record compels” the conclusion that the requisite fear

of persecution existed) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)).

Liu is correct that in deciding whether a finding of persecution is compelled, we

look to the totality of the circumstances experienced by the petitioner. Guo v.

Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004). Liu’s past harm closely mirrors the

past harm suffered by the petitioner in Gu v. Gonzales, 454 F.3d 1014 (9th Cir.

2006), where this court concluded “that the evidence [did] not compel a result

2 contrary to the BIA’s.” Gu, 545 F.3d at 1021. Here, as the BIA recognized, Liu

was mistreated. But, because Liu is unable to meaningfully distinguish his arrest,

detention, assault, and release conditions from the harms the petitioner suffered in

Gu, the agency’s conclusion that Liu’s past harm did not rise to the level of

persecution is supported by substantial evidence. See Singh v. INS, 134 F.3d 962,

967–68 (9th Cir. 1998) (noting that comparing similar cases is “perhaps [the] best”

way to answer the heavily fact-dependent question whether mistreatment rises to

the level of persecution); see also Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995)

(holding that “[a]lthough a reasonable factfinder could have found this incident

sufficient to establish past persecution, we do not believe that a factfinder would be

compelled to do so”).

Liu also failed to establish a well-founded fear of persecution, which must

be “subjectively genuine and objectively reasonable.” Rusak v. Holder, 734 F.3d

894, 896 (9th Cir. 2013) (citation omitted). The objective component can be

established by “adducing credible, direct, and specific evidence in the record of

facts that would support a reasonable fear of persecution.” Ladha v. INS, 215 F.3d

889, 897 (9th Cir. 2000) (citation omitted), overruled on other grounds by Abebe v.

Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam). Liu has not

shown that his fear was objectively reasonable with credible, direct, and specific

evidence. Therefore, the agency’s denial of Liu’s application for asylum is

3 supported by substantial evidence.

2. To qualify for withholding of removal, Liu must establish a clear

probability that he would be persecuted on account of a protected ground if

removed to China. Navas v. INS, 217 F.3d 646, 655 (9th Cir. 2000); 8 U.S.C.

§ 1231(b)(3)(A). Because the “clear probability” standard for withholding of

removal is more stringent than the well-founded fear standard for asylum, see

Navas, 217 F.3d at 655, where an applicant fails to establish eligibility for asylum,

Liu necessarily fails to establish eligibility under the more stringent standard for

withholding of removal, Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).

Therefore, the agency’s denial of Liu’s application for withholding of removal is

supported by substantial evidence.

3. To qualify for CAT relief Liu must show that it is more likely than not that

he will be tortured if returned to China. See 8 C.F.R. § 1208.16(c)(2). Although

failure to establish eligibility for asylum “does not necessarily doom” an application

for CAT protection, Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003), this

court has noted that “torture is more severe than persecution and the standard of

proof for the CAT claim is higher than the standard of proof for an asylum claim,”

Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005). Because the record does

not compel a finding that Liu has a well-founded fear of future persecution, the

record does not compel a finding that Liu would more likely than not be tortured if

4 removed to China. Therefore, the agency’s denial of Liu’s application for CAT relief

is supported by substantial evidence.

PETITION FOR REVIEW DENIED.