Yongsheng Cui v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YONGSHENG CUI, No. 18-72808
Petitioner, Agency No. A205-178-768
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2020**
Pasadena, California
Before: GRABER and BEA, Circuit Judges, and DORSEY,*** District Judge.
Yongsheng Cui (“Petitioner”), a native and citizen of China, petitions for
review of a Board of Immigration Appeals’ (“BIA”) decision affirming an
immigration judge’s (“IJ”) denial of his application for asylum, withholding of
*
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).
***
The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
removal, and relief under the Convention Against Torture (“CAT”).
Reviewing the agency’s legal conclusions de novo, Santiago-Rodriguez v.
Holder, 657 F.3d 820, 829 (9th Cir. 2011), and its factual findings for substantial
evidence, Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir. 2009), we deny the
petition.
The IJ found that Petitioner was a credible witness, but that the harm he
suffered did not rise to the level of persecution, as required for an application for
asylum based on past persecution. The BIA agreed. An applicant alleging past
persecution has the burden of establishing that his treatment rises to the level of
persecution. Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010).
“Persecution is an extreme concept and has been defined as the infliction of
suffering or harm upon those who differ (in race, religion or political opinion) in a
way regarded as offensive.” Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006)
(internal quotation marks and citations omitted).
Petitioner was arrested, detained for five days, and beaten because he
protested a temporary resident permit policy. Police officers handcuffed him to a
chair, beat him with books in his face and with a baton on his back, threatened
to freeze him to death, and pulled his hand to force him to sign a confession.
The officers encouraged other prisoners to beat Petitioner, and two separate
times the other prisoners punched him in the stomach multiple times, kicked
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him in the legs, and kicked him in the buttocks. After his release on bail, he
had to report to the police station each week.
Petitioner suffered mistreatment more like mistreatment that we
previously have found does not constitute persecution, and less like
mistreatment that we have found did constitute persecution. Compare Gu, 454
F.3d at 1020–21 (holding that there was no persecution where there was a single
incident of a half-day detention, an interrogation for two hours, and a beating that
did not require medical treatment), and Prasad v. INS, 47 F.3d 336, 339–40 (9th
Cir. 1995) (holding that there was no persecution where the petitioner was detained
in a police cell for four to six hours, hit in the stomach, kicked from behind, and
interrogated, but was not charged and eventually released), with Jian Guo v.
Ashcroft, 361 F.3d 1194, 1197–98 (9th Cir. 2004) (holding that there was
persecution where the petitioner was arrested and detained for fifteen days, beaten,
kicked, shocked with an electrical baton, forced to do push-ups until he collapsed,
forced to sign a document stating that he could no longer practice Christianity, was
fired, and was unable to find other employment).
Petitioner argues that our recent decision in Zhihui Guo v. Sessions, 897 F.3d
1208 (9th Cir. 2018), supports his argument. There, we found persecution where
the petitioner was detained for two days for practicing Christianity, beaten until he
could not stand, forced to sign a statement promising to stop practicing
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Christianity, required to report to police every week to be questioned for an hour
about his activities, and threatened with arrest if he resumed practicing his religion.
Id. at 1215–16. We explained that a “critical point” distinguishing that case and
Jian Guo from Gu was that the first two cases involved “ongoing” persecution
because the petitioners were stopped from practicing their religion. Id. at 1216.
Here, while Petitioner experienced more mistreatment than the petitioners in Gu or
Prasad, he experienced far less than those in Jian Guo or Zhihui Guo, and he did
not suffer ongoing persecution such as being threatened by police after release or
being denied the ability to practice his religion.
Finally, Petitioner argues that because he has established past persecution,
he also has shown he has an objectively reasonable fear of future persecution, has
met the standard for withholding of removal, and has established eligibility for
relief under the CAT. Petitioner, however, has not shown that he suffered past
persecution. Nor has Petitioner provided sufficient evidence to compel reversal of
the agency’s findings that he failed to demonstrate a clear probability of
persecution or that it is more likely than not he would be tortured. Substantial
evidence thus supports the agency’s denial of asylum, withholding of removal, and
CAT relief. Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc).
Petitioner’s motion to submit the case on the briefs (DN 28) is denied as
moot because the court has already ordered the case submitted.
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Petition DENIED.
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