FILED NOT FOR PUBLICATION JUL 02 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YING LI, No. 15-71145
Petitioner, Agency No. A099-966-855
v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 5, 2018 Pasadena, California
Before: W. FLETCHER, BERZON, and OWENS, Circuit Judges.
Ying Li (“Li”), a native and citizen of China, petitions for review of a final
order of removal by the Board of Immigration Appeals (“BIA”). The BIA denied
Li’s applications for asylum and withholding of removal under the Immigration
and Nationality Act (“Act”) and for protection under the Convention Against
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Torture (“CAT”). 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. §§
1208.16-1208.18. The BIA determined Li was not credible as to her claim of past
persecution under China’s population control policy. The BIA also determined
that Li was not credible as to her claim of political persecution, and that, even if
she were credible, she had not established past persecution on account of a
protected ground. We have jurisdiction under 8 U.S.C. § 1252(b). We grant the
petition and remand.
We review asylum-related determinations, including credibility
determinations, for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039
(9th Cir. 2010). In doing so, we consider whether the determination below is
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We
reverse only if the evidence compels a contrary conclusion. Singh v. INS, 134 F.3d
962, 966 (9th Cir. 1998). “[O]ur review ‘is limited to the BIA’s decision, except to
the extent the IJ’s opinion is expressly adopted.’” Hosseini v. Gonzales, 471 F.3d
953, 957 (9th Cir. 2006).
To establish eligibility for asylum based on past persecution, Li “must show:
(1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on
account of’ one of the statutorily-protected grounds; and (3) is committed by the
2 government or forces the government is either ‘unable or unwilling’ to control.”
Mengstu v. Holder, 560 F.3d 1055, 1058 (9th Cir. 2009) (quoting Navas v. INS,
217 F.3d 646, 655–56 (9th Cir. 2000)).
Persecution under Population Control Policy
The BIA failed to provide specific and cogent reasons for upholding the IJ’s
adverse credibility finding as to Li’s forced abortion claim. See Alvarez-Santos v.
INS, 332 F.3d 1245, 1254 (9th Cir. 2003). The BIA and IJ based their adverse
credibility findings, in part, on an inaccurate reading of the record. Del Valle v.
INS, 776 F.2d 1407, 1412 (9th Cir. 1985). Li testified that, in 1986, after
becoming pregnant a second time, her work unit ordered her to have an abortion.
Li further testified that “cadres” forcibly took her from work and drove her to the
hospital, where she was tied to a table for the procedure. The IJ concluded that Li
was not credible because she provided insufficient reasons as to why “she did not
mention the abortion procedure during the medical history process prior to the
removal of [her] IUD,” twenty years later in the United States. However, the only
evidence in the record to support this claim is a zero with a horizontal line through
it beside “surgeries” on the medical history form completed by Dr. Erik Chan, who
removed her IUD. Even if one assumes that the notation reflects Li’s failure,
3 during a procedure to remove an IUD, to characterize an abortion as a “surgery”
(rather than her doctor’s characterization), the characterization does little to
support an adverse credibility finding. Many—perhaps most—women would not
call an abortion to mind when asked about “surgery” in general. The IJ also found
the record lacked corroborating evidence of Li’s forced abortion. However, Li’s
forced abortion claim is somewhat corroborated by the gynecologist’s note that the
IUD he removed was 20 years old — reflective of the 1986 date of its insertion
after the abortion to which she testified. Given Li’s consistent testimony and
statements regarding her abortion, as somewhat corroborated by her medical
record, the BIA’s adverse credibility determination was not supported by
substantial evidence. We therefore grant the petition for review and remand Li’s
forced abortion claim for consideration of whether Li is eligible for asylum or
withholding of removal, and for the exercise of discretion by the Attorney General.
See INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam).
Persecution for Imputed Political Beliefs
The BIA found that Li’s claim of political persecution was not credible,
because it was a “material omission” from two of her three asylum statements. See
Zamanov v. Holder, 649 F.3d 969, 973–974 (9th Cir. 2011). The BIA made a
4 mistake of fact. The record shows Li’s initial asylum application notes “political
opinion” as one of her grounds for relief, indicates that she has been “accused,
charged, arrested, detained, interrogated, convicted and sentenced, or imprisoned”
in China, and notes that she is afraid of being subjected to torture in China upon
return. We therefore reverse the BIA’s adverse credibility determination for this
claim. Singh, 134 F.3d at 966.
Persecution is “the infliction of suffering or harm upon those who differ (in
race, religion, or political opinion) in a way regarded as offensive.” Kovac v. INS,
407 F.2d 102, 107 (9th Cir.1969). Li adduced substantial evidence to show that
her arrest, detention, and physical assault rose to the level of persecution. Li
testified that she and other laid-off workers were arrested for organizing and
participating in a pro-labor protest outside of a government compound. Li testified
that during her interrogation, police slapped her in the face several times, kicked
her to the ground, and repeatedly punched her in the thighs, chest and head. Guo v.
Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (holding that detainment and beating
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION JUL 02 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YING LI, No. 15-71145
Petitioner, Agency No. A099-966-855
v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 5, 2018 Pasadena, California
Before: W. FLETCHER, BERZON, and OWENS, Circuit Judges.
Ying Li (“Li”), a native and citizen of China, petitions for review of a final
order of removal by the Board of Immigration Appeals (“BIA”). The BIA denied
Li’s applications for asylum and withholding of removal under the Immigration
and Nationality Act (“Act”) and for protection under the Convention Against
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Torture (“CAT”). 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. §§
1208.16-1208.18. The BIA determined Li was not credible as to her claim of past
persecution under China’s population control policy. The BIA also determined
that Li was not credible as to her claim of political persecution, and that, even if
she were credible, she had not established past persecution on account of a
protected ground. We have jurisdiction under 8 U.S.C. § 1252(b). We grant the
petition and remand.
We review asylum-related determinations, including credibility
determinations, for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039
(9th Cir. 2010). In doing so, we consider whether the determination below is
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We
reverse only if the evidence compels a contrary conclusion. Singh v. INS, 134 F.3d
962, 966 (9th Cir. 1998). “[O]ur review ‘is limited to the BIA’s decision, except to
the extent the IJ’s opinion is expressly adopted.’” Hosseini v. Gonzales, 471 F.3d
953, 957 (9th Cir. 2006).
To establish eligibility for asylum based on past persecution, Li “must show:
(1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on
account of’ one of the statutorily-protected grounds; and (3) is committed by the
2 government or forces the government is either ‘unable or unwilling’ to control.”
Mengstu v. Holder, 560 F.3d 1055, 1058 (9th Cir. 2009) (quoting Navas v. INS,
217 F.3d 646, 655–56 (9th Cir. 2000)).
Persecution under Population Control Policy
The BIA failed to provide specific and cogent reasons for upholding the IJ’s
adverse credibility finding as to Li’s forced abortion claim. See Alvarez-Santos v.
INS, 332 F.3d 1245, 1254 (9th Cir. 2003). The BIA and IJ based their adverse
credibility findings, in part, on an inaccurate reading of the record. Del Valle v.
INS, 776 F.2d 1407, 1412 (9th Cir. 1985). Li testified that, in 1986, after
becoming pregnant a second time, her work unit ordered her to have an abortion.
Li further testified that “cadres” forcibly took her from work and drove her to the
hospital, where she was tied to a table for the procedure. The IJ concluded that Li
was not credible because she provided insufficient reasons as to why “she did not
mention the abortion procedure during the medical history process prior to the
removal of [her] IUD,” twenty years later in the United States. However, the only
evidence in the record to support this claim is a zero with a horizontal line through
it beside “surgeries” on the medical history form completed by Dr. Erik Chan, who
removed her IUD. Even if one assumes that the notation reflects Li’s failure,
3 during a procedure to remove an IUD, to characterize an abortion as a “surgery”
(rather than her doctor’s characterization), the characterization does little to
support an adverse credibility finding. Many—perhaps most—women would not
call an abortion to mind when asked about “surgery” in general. The IJ also found
the record lacked corroborating evidence of Li’s forced abortion. However, Li’s
forced abortion claim is somewhat corroborated by the gynecologist’s note that the
IUD he removed was 20 years old — reflective of the 1986 date of its insertion
after the abortion to which she testified. Given Li’s consistent testimony and
statements regarding her abortion, as somewhat corroborated by her medical
record, the BIA’s adverse credibility determination was not supported by
substantial evidence. We therefore grant the petition for review and remand Li’s
forced abortion claim for consideration of whether Li is eligible for asylum or
withholding of removal, and for the exercise of discretion by the Attorney General.
See INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam).
Persecution for Imputed Political Beliefs
The BIA found that Li’s claim of political persecution was not credible,
because it was a “material omission” from two of her three asylum statements. See
Zamanov v. Holder, 649 F.3d 969, 973–974 (9th Cir. 2011). The BIA made a
4 mistake of fact. The record shows Li’s initial asylum application notes “political
opinion” as one of her grounds for relief, indicates that she has been “accused,
charged, arrested, detained, interrogated, convicted and sentenced, or imprisoned”
in China, and notes that she is afraid of being subjected to torture in China upon
return. We therefore reverse the BIA’s adverse credibility determination for this
claim. Singh, 134 F.3d at 966.
Persecution is “the infliction of suffering or harm upon those who differ (in
race, religion, or political opinion) in a way regarded as offensive.” Kovac v. INS,
407 F.2d 102, 107 (9th Cir.1969). Li adduced substantial evidence to show that
her arrest, detention, and physical assault rose to the level of persecution. Li
testified that she and other laid-off workers were arrested for organizing and
participating in a pro-labor protest outside of a government compound. Li testified
that during her interrogation, police slapped her in the face several times, kicked
her to the ground, and repeatedly punched her in the thighs, chest and head. Guo v.
Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (holding that detainment and beating
could constitute persecution). Li was then detained in solitary confinement for 15
days, with no judicial process, and received just two meals a day. After her
husband paid 5,000 RMB, police released Li under “surveillance,” requiring that
she appear at the station when called or face imprisonment. Li was also forced to
5 sign a “letter of promises,” stating that she would not “organize,” “make trouble,”
or “disrupt any social order” in the future. Following Li’s release, a doctor noted
bruises on her cheeks, arms, legs and signs of a concussion.
We remand for the BIA to consider, in light of this court’s intervening
authority, Xinbing Song v. Sessions, 882 F.3d 837 (9th Cir. 2017), whether
substantial evidence supports Li’s claim of persecution on account of the
statutorily-protected ground of her imputed political beliefs. For Li to establish a
requisite nexus between the harm she experienced and her imputed political
opinion, Li must show: “(1) that [s]he held, or [her] persecutors believed that [s]he
held, a political opinion; and (2) that [s]he was harmed because of that political
opinion.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.2010) (citing
Navas, 217 F.3d at 656).
Li testified to the motivation of her alleged persecutors through both direct
and circumstantial evidence. See Elias-Zacarias, 502 U.S. at 483. Chinese police
officials detained and assaulted Li for “organizing a riot” and “disrupt[ing] social
order,” after she participated in a protest that took place in front of a government
compound. Li testified that she explained to the police that she was protesting at
“the municipal government” “for the sake of [her] life,” and that she was “not an
unlawful element.” Police still proceeded to assault her.
6 The IJ found that Li and other protestors were arrested because they were
obstructing access to a government office, and not on account of actual or imputed
political opinion or any other protected ground. However, in light of Song, we
remand for the IJ and BIA to take into account the “full spectrum of [Li’s]
actions.” 882 F.3d at 842–843 (holding “the IJ and BIA took a very narrow view
of what could qualify as an actual political opinion in the asylum context.”).
CAT Claim
We also remand Li’s CAT claim for the BIA to provide a reasoned
explanation of its decision. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th
Cir. 2005). Under CAT’s implementing regulations, the BIA must consider all
evidence of country conditions to determine the likelihood that an applicant would
be tortured. Madrigal v. Holder, 716 F.3d 499, 508–09 (9th Cir. 2013); see also 8
C.F.R. § 1208.16(c)(3). The BIA did not indicate whether it considered the State
Department Report describing prominent custodial torture in China when it denied
Li protection under CAT. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th
Cir. 2005) (“[T]he BIA [is] not free to ignore arguments raised by a petitioner.”).
We therefore instruct the BIA on remand to provide a reasoned explanation for its
7 decision on Li’s CAT claim. See Zhiqiang Hu v. Holder, 652 F.3d 1011, 1020 (9th
Cir. 2011).
PETITION GRANTED and REMANDED.