Cha Liang v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-3353
_______________
CHA LIANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA
_______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(No. A201-123-167)
Immigration Judge: Amit Chugh
_______________
Argued: July 7, 2021
Before: AMBRO, JORDAN, and BIBAS, Circuit Judges.
(Filed: October 12, 2021)
_______________
David Yan [ARGUED]
LAW OFFICES OF DAVID YAN
3606 30th Street, Suite 11E
Long Island City, NY 11106
Counsel for Petitioner
Lance L. Jolley [ARGUED]
Anthony C. Payne
U.S. DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Divide and conquer is a good military strategy but a bad
judicial one. Judges must consider how related facts weave to-
gether into a narrative.
Chinese officials caught Cha Liang practicing his faith, so
they beat, jailed, and then threatened him. When he sought asy-
lum, the Board of Immigration Appeals minimized the threats
and physical abuse as discrete incidents. But Liang’s twenty-
minute beating and fifteen days in jail made the later threats
2
more menacing. Because the Board should not have ignored
this context, we will grant the petition and remand.
I. BACKGROUND
Liang is from China. In 1997, he learned that his then-
girlfriend (now wife) was expecting their child. But because
they had not yet married, Chinese government officials forced
her to abort their baby. To protest the forced abortion, Liang
met with a local official. A scuffle ensued. It ended when a
security guard slammed a door on his hand, scarring it.
Shattered, Liang found solace in Christianity. He began at-
tending underground church meetings. In 2000, Chinese police
burst into an underground-church meeting and declared it an
illegal religious gathering. They arrested several people, in-
cluding Liang, and brought them to the police station.
At the station, the police abused Liang. They stripped him
down to his underpants. They bent him over and cuffed his
hands behind his back. Then, they beat him. They held him by
his hair and struck him in the face and ears. They pounded his
back and legs. They pummeled him so hard, for twenty
minutes, that he suffers hearing loss to this day. After that, they
locked him in a cold cell, gave him little to eat, and kept him
there for fifteen days.
Before letting Liang go, the police warned him: if we catch
you in church again, we will throw you back in jail. Once out,
Liang kept going to church. But to avoid the police, the group
met less often and constantly changed where it gathered.
3
Almost a decade later, Liang fled to the United States. He
sought asylum, claiming both political persecution (based on
the 1997 scuffle over the forced abortion) and religious perse-
cution (based on the 2000 arrest, beating, jailing, and threats).
At the hearing, the government seemed to concede past perse-
cution. In challenging Liang’s credibility, the government’s
lawyer said he “would certainly not argue that” the 2000 inci-
dent, if true, was not persecution. AR 210. Though the immi-
gration judge found Liang credible, he found that he had not
been persecuted. He did not mention the government’s appar-
ent concession.
The Board of Immigration Appeals affirmed. It noted that
Liang had opposed China’s coercive abortion policy. And it
construed his opposition as a political opinion. But having a
door slammed on his hand, it held, was not severe enough to
count as persecution.
The Board also rejected his religious-persecution claim be-
cause Liang’s ordeals in 2000 were not “sufficiently egre-
gious.” AR 4. It suggested that his mild hearing loss was not
“sufficiently ‘severe.’ ” Id. (quoting Kibinda v. Att’y Gen., 477
F.3d 113, 119–20 (3d Cir. 2007)). It also held that the threat of
rearrest was not “concrete and menacing” enough to count as
persecution because he kept going to church for nine more
years. AR 4 (quoting Herrera-Reyes v. Att’y Gen., 952 F.3d
101, 108 (3d Cir. 2020)).
Finally, the Board held that Liang’s fear of future persecu-
tion was not well-founded. After his 2000 jailing, he had no
more trouble with the authorities. True, Liang submitted five
letters from people in China telling him that if he returned, he
4
would be arrested. But, it found, the letters were identical and
too vague to credit. The Board also denied his claims under the
Convention Against Torture and for withholding of removal.
Liang challenges only the denial of asylum. He argues that
the immigration judge had to accept the government’s conces-
sion of past persecution. In any event, he challenges the
Board’s rulings on past and future persecution.
“[W]e appl[y] de novo review to the question of whether
the [Board] misapprehended the legal methodology we have
prescribed for assessing persecution.” Thayalan v. Att’y Gen.,
997 F.3d 132, 137 n.1 (3d Cir. 2021).
II. THE BOARD’S PAST-PERSECUTION ANALYSIS WAS
FLAWED
The Board held that Liang had suffered neither political nor
religious persecution in China. It was right about political per-
secution, but its reasons for rejecting religious persecution
were flawed. Because that is clear, we need not address Liang’s
argument that the government’s statement was a concession
that should have swayed the immigration judge.
A. Political Persecution
As the Board rightly held, the 1997 door-slamming incident
did not rise to the level of persecution. Liang suffered only a
minor injury to his hand. This “scuffle with the local officials
does not appear to have been serious.” Chen v. Ashcroft, 381
F.3d 221, 235 (3d Cir. 2004).
5
Liang responds that the Board had to consider this experi-
ence together with his later beating and jailing. To be sure, the
agency errs when it considers related mistreatment “in isola-
tion.” Herrera-Reyes, 952 F.3d at 108. But these incidents
were at best tenuously related. In 1997, Chinese authorities
harmed Liang because of his political stance against forced
abortion; in 2000, because of his faith. Neither event relates
enough to the other. So the Board did not need to look at them
together to determine past persecution.
B. Religious Persecution
The Board also rejected his claim of religious persecution.
It considered his beating and jailing together and dismissed that
“single incident” as not “sufficiently egregious.” AR 4. Then,
it moved to the threats, which it found not “concrete and men-
acing” enough. Id. After all, the Board stressed, they failed to
deter Liang from practicing his faith.
The Board’s reasoning, though, ignores the context of the
threats. Government officials threatened to jail Liang if he
went to church again. He had good reason to take the threat
seriously, as he had just been jailed and beaten. A “threat [can
be] made concrete by the violent context in which it occurred.”
Herrera-Reyes, 952 F.3d at 108. By ignoring that context, the
Board failed to “examine incidents of alleged past persecution
… cumulatively.” Thayalan, 997 F.3d at 137 n.1.
True, the Board purported to consider the episodes “cumu-
latively.” AR 4. But “[a] cursory invocation of the word ‘cu-
mulative’ is insufficient.” Herrera-Reyes, 952 F.3d at 109.
Here, the opinion shows that the Board did not do what it said
6
it did. It analyzed the threat separately from the beating and
jailing and did not consider how the preceding violence put
steel into the threat.
On remand, the agency must consider the threats in light of
the earlier abuse. Id. Then, it must decide whether the “aggre-
gate effect” of the beating, jailing, and threats “pose[d] a ‘se-
vere affront[ ] to [Liang’s] life or freedom.’ ” Id. at 110 (quot-
ing Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 341 (3d Cir.
2008)). If the Board holds that the beating, jailing, and threats
together count as past persecution, it must presume that Liang
will face future persecution if he returns. 8 C.F.R. § 208.13.
Then it will have to consider whether the evidence rebuts that
presumption.
* * * * *
We do not say whether Liang ultimately suffered past reli-
gious persecution or has a well-founded fear of future persecu-
tion. But it is not enough for the Board to reach a particular
destination. It must also take the right path to get there. By not
considering religious persecution cumulatively, it “misappre-
hend[ed] applicable law.” Thayalan, 997 F.3d at 137 n.1. So
we will grant the petition and remand.
7
JORDAN, Circuit Judge, with whom AMBRO, Circuit
Judge, joins, concurring.
While I fully concur in the opinion we issue today, I
write separately to highlight one important point that bears on
our standard of review and should not be obscured by our
various formulations of the standard over the years: Past
persecution is a mixed question of law and fact.1 That is
because the determination of “past persecution” involves two
distinct questions, either or both of which may be disputed in a
given case. The question of what events occurred or may occur
“is factual in nature and is subject to clearly erroneous review
by the BIA” and substantial evidence review by this Court;
while the question of “whether those events meet the legal
definition of persecution [] is reviewed de novo because it is
plainly an issue of law.” Huang v. Att’y Gen., 620 F.3d 372,
379, 383 (3d Cir. 2010). As the Supreme Court has repeatedly
– and, again, just recently – described, we approach a question
“which has both factual and legal elements, as a mixed
1
Quoting our recent decision in Thayalan v. Att’y Gen.,
997 F.3d 132 (3d Cir. 2021), the lead opinion today frames the
standard of review as follows: “[W]e appl[y] de novo review
to the question of whether the [Board] misapprehended the
legal methodology we have prescribed for assessing
persecution.” Maj. op. at 5 (quoting Thayalan, 997 F.3d at 137
n.1). I agree with that sentence, but, as described herein, I have
concerns that Thayalan can be misread. To the extent the
opinion in that case can be understood to hold that past
persecution is a pure question of fact or that a misapprehension
of law by the BIA is a prerequisite to assessing de novo
whether the facts in a given case amount to persecution, I
believe it to be contrary to preexisting precedent.
1
question of law and fact,” while we treat “the application of a
legal standard to undisputed or established facts” as a question
of law. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069
(2020) (quotation omitted). In keeping with that instruction,
we should be more consistent in acknowledging that past
persecution is a mixed question and more explicit in
identifying which component, factual or legal, is under review.
That breakdown of the two components is critical if we
are to apply the proper standard of review. Just last term, the
Supreme Court emphasized that “a reviewing court should try
to break [] a [mixed] question into its separate factual and legal
parts, reviewing each according to the appropriate legal
standard.” Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183,
1199 (2021). “[W]hen a question can be reduced no further,”
we determine in the context of the particular case whether
answering the question “entails primarily legal or factual
work” and then apply the corresponding standard of review.
Id. (quoting U.S. Bank N.A. ex rel. CWCapital Asset Mgmt.
LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018)).
And when it comes to the determination of past persecution,
the factual and legal parts are separate and distinct.
That past persecution involves two separate inquiries is
highlighted by the division of labor within the Department of
Justice. When deciding whether an applicant has previously
experienced persecution, the Department, acting through
Immigration Judges and the Board of Immigration Appeals,
first determines what happened (which is the fact question) and
then whether that event or sequence of events meets the legal
definition for persecution (which is the legal question). It
assigns responsibility for answering both the factual and legal
aspects of the mixed question to Immigration Judges, while
2
confining the Board of Immigration Appeals to deciding
whether the facts as found by an Immigration Judge justify a
particular legal conclusion about persecution. See Z-Z-O-, 26
I. & N. Dec. 586, 590-91 (B.I.A. 2015) (“[W]hether an asylum
applicant has established an objectively reasonable fear of
persecution based on the events that the Immigration Judge
found may occur upon the applicant’s return to the country of
removal is a legal determination that remains subject to de
novo review.”).
That mode of analysis guides us in analyzing other
mixed questions in immigration law as well. For example,
when assessing whether a petitioner invoking the Convention
Against Torture is entitled to relief, we must determine
whether the petitioner has shown a likelihood of facing torture.
That, too, we have said, is a “mixed question” with “two
distinct parts … : (1) what is likely to happen to the petitioner
if removed; and (2) does what is likely to happen amount to the
legal definition of torture? … The first question is factual. …
The second question, however, is a legal question.” Kaplun v.
Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010).2 And, again, that
2
We have since steadfastly followed the Kaplun test.
See, e.g., Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017);
Green v. Att’y Gen., 694 F.3d 503, 507 (3d Cir. 2012); Roye v.
Att’y Gen., 693 F.3d 333, 338 (3d Cir. 2012); Kang v. Att’y
Gen., 611 F.3d 157, 164 (3d Cir. 2010). Other Courts of
Appeals also treat the question of whether mistreatment
satisfies the legal definition of torture as a mixed question of
fact and law. See, e.g., Ridore v. Holder, 696 F.3d 907, 915-
16 (9th Cir. 2012); Turkson v. Holder, 667 F.3d 523, 530 (4th
Cir. 2012); Gourdet v. Holder, 587 F.3d 1, 5 (1st Cir. 2009);
3
distinction is one the Supreme Court has recently reinforced.
See Nasrallah v. Barr, 140 S. Ct. 1683, 1693 (2020)
(distinguishing between the “factual components” of CAT
orders and the legal components).
We should bring that same analytical clarity to the
question of past persecution when we consider a BIA order
deciding an application for asylum. Unfortunately, in that
context we have let ambiguity creep into our case law, and it
has led to confusion about our standard for review.
It is not that we have always been unclear. On at least
two occasions, we have stated unequivocally that persecution
presents a mixed question of law and fact. See Herrera-Reyes
v. Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020) (“Neither party
disputes the facts underlying Petitioner’s past-persecution
claim. So we will review the BIA’s application of our past-
persecution standard to those facts de novo.”); Huang, 620
F.3d at 382-83 (drawing expressly on the Kaplun test to hold
that the question of “whether an alien possesses a well-founded
fear of persecution,” like the question of whether “what [the
alien] is likely to suffer amounts to torture,” is “a mixed
question of fact and law … that requires application of a legal
standard to a particular set of circumstances”).3
Jean-Pierre v. Att’y Gen., 500 F.3d 1315, 1316-17 (11th Cir.
2007).
3
Several of our sister circuits also treat persecution as a
mixed question. See Zhou Hua Zhu v. Att’y Gen., 703 F.3d
1303, 1311-12 (11th Cir. 2013); Ramdan v. Gonzales, 479 F.3d
646, 648 (9th Cir. 2007); Mirzoyan v. Gonzales, 457 F.3d 217,
4
Those clear holdings, however, are sometimes
misunderstood because of shorthand articulations of the
standard that we have given elsewhere. For example, in Voci
v. Gonzales, 409 F.3d 607 (3d Cir. 2005), we said, “[w]hether
an asylum applicant has demonstrated past persecution or a
well-founded fear of future persecution is a factual
determination reviewed under the substantial evidence
standard.” Id. at 613. But even then, we followed the two-step
analytical path described above, for we observed that, “[w]hile
this Court has not yet drawn a precise line concerning where a
simple beating ends and persecution begins, our cases suggest
that isolated incidents that do not result in serious injury do not
rise to the level of persecution.” Id. at 615. That was an
acknowledgement that, when judging a claim of past
persecution, we are applying a legal standard to a set of facts.
The two-step analysis regularly features in our case law.
See, e.g., Doe v. Att’y Gen., 956 F.3d 135, 146 (3d Cir. 2020)
(“In short, because the IJ and the BIA accepted Petitioner’s
testimony as true but then proceeded to misstate and ignore
certain relevant aspects of that testimony, and because they
committed legal error by finding that a single beating without
severe physical injury to Petitioner was dispositive, their
220 (2d Cir. 2006); Asani v. INS, 154 F.3d 719, 723 (7th Cir.
1998). Those circuits that do not state a standard of review or
have called it a fact question are still in practice applying a
legal definition to a set of facts. See, e.g., Arita-Deras v.
Wilkinson, 990 F.3d 350, 359 (4th Cir. 2021) (“We repeatedly
have held that death threats qualify as persecution. . . . Thus,
the Board committed legal error in concluding that Arita-Deras
had not established past persecution.”).
5
determination that his experience did not rise to the level of
past persecution must be overturned.” (internal quotation
marks and citation omitted)); Kibinda v. Att’y Gen., 477 F.3d
113, 120 (3d Cir. 2007) (“While we do not mean to suggest
that the severity of an injury should be measured in stitches,
Kibinda has provided no other objective evidence to
demonstrate that the single injury he suffered was severe
enough to constitute persecution under our stringent
standard.”); Chavarria v. Gonzalez, 446 F.3d 508, 520 (3d Cir.
2006) (“[T]he second threat experienced by Chavarria rises to
the level of past persecution because it was both highly
imminent, concrete and menacing and Chavarria suffered harm
from it.”).
So it should be apparent that persecution is not purely a
question of fact. Nevertheless, we continue at times to create
tension in our precedents with imprecise statements of our
standard of review. For example, we recently said in Thayalan
v. Att’y Gen., 997 F.3d 132 (3d Cir. 2021), that past persecution
is a question of fact subject to review for substantial evidence.
Id. at 137. Then, in a well-intended effort to acknowledge that
persecution is actually a mixed question of law and fact, but
with language that might be taken (wrongly) as undercutting
our perfectly clear statement in Herrara-Reyes, we said:
In Herrera-Reyes, we applied de novo review to
the question of whether the BIA misapprehended
the legal methodology we have prescribed for
assessing persecution. We concluded that it was
legal error for the agency to examine incidents of
alleged past persecution in isolation from each
other rather than cumulatively and to restrict
qualifying harm to that inflicted on the petitioner
6
herself, excluding harm to family members or
close associates. In contrast, where the agency
does not misapprehend applicable law, we apply
the substantial-evidence standard to an agency
determination that an alien did not suffer harm
rising to the level of persecution even where the
underlying facts about how an alien was
mistreated are undisputed. We do so because the
question of whether a particular fact pattern rises
to the level of persecution is largely fact-driven.
Id. at 137 n.1 (internal quotation marks and citation omitted).
The question of past persecution is indeed largely fact-
driven, in the sense that there is always a factual component to
the question, although not always a factual dispute. But being
“largely” something is not the same as being “entirely”
something. And, when determining our standard of review,
there is certainly no novel “misapprehension of law” element
that we must find in the BIA’s decision before we can review
“the application of law to undisputed or established facts” for
what it is: a “question of law.” Guerrero-Lasprilla, 140 S. Ct.
at 1069.
The two-step analysis for judging past persecution is
straightforward, at least in concept, if not always in practice.
Our precedent and that of the Supreme Court require us to
address past persecution as a mixed question of law and fact,
reviewing “its separate factual and legal parts, … each
according to the appropriate legal standard[,]” Google LLC,
141 S. Ct. at 1199, even when we have occasionally been less
than precise in framing the procedure as such. It is time we
were clearer and more consistent on this important point.
7