Zhi Zhou v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHI ZHOU, No. 16-73956
Petitioner, Agency No. A087-832-106
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 9, 2019
Pasadena, California
Before: GRABER and BYBEE, Circuit Judges, and ARTERTON,** District
Judge.
Petitioner Zhi Zhou petitions for review of the Board of Immigration
Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”)
decision denying his application for asylum and withholding of removal and his
request for protection under the Convention Against Torture (“CAT”). Petitioner, a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
Chinese citizen and Christian home-church member in Tianjin City, China, was
arrested by police officers at home-church services, detained for two days,
interrogated, beaten, shocked with an electric baton, and had tea poured on his
face. Petitioner also was coerced into signing a “pledge” and told that if he did not
do so he would be sent to a labor camp. He was released only upon his family’s
payment of a bond and subject to supervised release, which required him to report
weekly to the police, at which meetings police asked him whether he was “in touch
with any of the church members, if [he was] engaging in propagandizing the cult to
anyone else.” After reporting weekly for six months, Petitioner fled China,
attesting that he could not comply with the conditions of his pledge because he was
“unable to give up [his] belief.” We have jurisdiction under 8 U.S.C. § 1252.
“We review ‘denials of asylum, withholding of removal, and CAT relief for
substantial evidence and will uphold a denial supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’” Yali Wang v.
Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (quoting Ling Huang v. Holder, 744
F.3d 1149, 1152 (9th Cir. 2014)). “We may reverse the decision of the [BIA] only
if the applicant shows that the evidence compels the conclusion that the asylum
decision was incorrect.” Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006).
1. Petitioner contends that the BIA’s determination that he is ineligible for
asylum based on his past persecution and well-founded fear of future persecution is
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not supported by substantial evidence. Respondent claims only that Petitioner’s
experiences do not rise to the level of persecution.
We recently held that the evidence compelled a finding of past persecution
in Guo v. Sessions, 897 F.3d 1208, 1211 (9th Cir. 2018), where the petitioner was
arrested while attending Christian home-church services, slapped twice in the face,
struck eight or nine times with a baton, detained for two days, and only released
upon his father’s payment of a bond and upon the petitioner’s signing a letter
agreeing to terms of supervised release. Those terms prohibited the petitioner from
attending home church and required him to report to the police weekly and
subjected him to arrest for violating either release condition. Id.
Given the substantial similarity to the facts in this record, Guo controls the
outcome of this petition for review. “[T]he evidence compels a finding of past
persecution, thus requiring us to remand this case to the BIA in order for it to apply
the presumption of future persecution.” Id. at 1213; see also Guo v. Ashcroft, 361
F.3d 1194, 1197, 1204 (9th Cir. 2004) (holding that the petitioner suffered past
persecution because of his religious beliefs where he was arrested, detained,
beaten, and forced to sign an affidavit promising not to believe in Christianity).
Because Petitioner’s claim for withholding of removal is interwoven with
the merits of his claim for asylum based on past persecution, that claim is also
remanded to the BIA for it to apply the presumption of future persecution.
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2. Petitioner also contends that the BIA erred in denying relief under the
Convention Against Torture. “In order to qualify for relief under the [CAT], [an
applicant] must establish that it is more likely than not that he would be tortured if
removed to [his home country].” Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.
2004) (per curiam). “[T]orture 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).
Substantial evidence supports the BIA’s determination that Petitioner was
not “more likely than not” to be tortured if removed to China. The severity and
duration of the physical mistreatment to which Petitioner was subjected does not
rise to the level of other physical mistreatment that we have found to constitute
torture. See, e.g., Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001)
(recognizing as torture “sustained beatings for a month” followed by “severe
beatings” and being “burned with cigarettes over an 8 to 10 day period”), amended
by 355 F.3d 1140 (9th Cir. 2004) (order). Moreover, the Country Reports on which
Petitioner relies do not establish that he is more likely than not to be subjected to
torture if returned. Accordingly, we deny the petition as to the CAT claim.
The petition for review is GRANTED and REMANDED as to the asylum
and withholding of removal claims and DENIED as to the CAT claim. The parties
shall bear their own costs on appeal.
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