FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONG XIAN LIN,
Petitioner, No. 06-73377
v.
Agency No.
A079-059-581
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2010*
Pasadena, California
Filed June 28, 2010
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and Frederic Block,
Senior District Judge.**
Per Curiam Opinion;
Concurrence by Judge O’Scannlain
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Frederic Block, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
9333
9336 LIN v. HOLDER
COUNSEL
Cong Xian Lin, pro se, Monterey Park, California, filed the
brief for the petitioner.
Donald A. Couvillon, Office of Immigration Litigation, Civil
Division, Department of Justice, Washington, D.C., filed the
brief for the respondent. Peter D. Keisler, Assistant Attorney
General, Civil Division, Department of Justice, and Linda S.
Wendtland, Assistant Director, Office of Immigration Litiga-
tion, Civil Division, Department of Justice, Washington, D.C.,
were also on the brief.
LIN v. HOLDER 9337
OPINION
PER CURIAM:
We must decide whether substantial evidence supports the
Board of Immigration Appeals’ denial of admissibility to a
Chinese citizen who gave assistance to a Falun Gong practi-
tioner.
I
A
Cong Xian Lin, a native and citizen of China, worked as a
cleric at a Daoist temple in Jiangkou in Putian County in
Fujian Province. In September 2001, a Falun Gong practi-
tioner fleeing Chinese authorities sought refuge in Lin’s tem-
ple and asked for assistance in escaping to Taiwan. Lin joined
other clerics in pooling funds and arranging for a boat to take
the man to Taiwan, even though he knew that such assistance
violated Chinese law.
Several days later, Chinese authorities arrived at the temple
and arrested two of the clerics. According to Lin, the temple
had never had problems in the past, but Chinese authorities
arrested the clerics because they helped the Falun Gong prac-
titioner to escape. Lin avoided arrest because he was in a
nearby village performing religious services. Police closed the
temple and looked for Lin later that day at his home. Lin fled
Jiangkou because of these events. He traveled within China
until he obtained a Taiwanese passport in June 2002, at which
point he claims he flew to Spain and then on to the United
States.
A U.S. Border Patrol officer arrested Lin on August 23,
2002, in Mobile, Alabama. The then-Immigration and Natu-
ralization Service (“INS”) issued a notice to appear, alleging
9338 LIN v. HOLDER
that Lin entered the United States illegally, and that he was
subject to removal.
B
Lin applied for asylum and requested withholding of
removal under the Immigration and Nationality Act (“INA”)
and protection under the Convention Against Torture
(“CAT”) on March 24, 2003. The Immigration Judge (“IJ”)
denied Lin’s application for asylum as untimely. In the IJ’s
view, Lin had not established by clear and convincing evi-
dence that he had applied for asylum within one year of his
date of arrival in the United States, as required for asylum eli-
gibility, because he provided several different dates and two
different locations of his arrival.1 The IJ also denied Lin’s
requests for withholding of removal, CAT relief, and volun-
tary departure. The IJ held that Lin had not established a like-
lihood that he would be subject to persecution, as required for
withholding of removal, or a likelihood that he would be sub-
ject to torture, as required for CAT relief, because Chinese
authorities merely searched for him and did so only on
account of his assistance to the Falun Gong practitioner, not
his political opinion or religion.
The Board of Immigration Appeals (“BIA”) adopted and
1
Lin told the Border Patrol agent who arrested him that he entered the
United States on July 10, 2002, at Los Angeles International Airport. He
admitted the same fact twice in filings. But Lin’s asylum application states
that Lin entered the United States on June 15, 2002, at Miami, Florida.
The exact date Lin departed from China is also unclear. Lin’s asylum
application and initial testimony represent that he left China on June 2,
2002. But Lin later testified he left China on June 8, 2002. He also stated,
contrary to all of his prior statements, that he arrived in Miami on October
12, 2002, after staying in Spain for four days. When confronted with the
fact that the amount of time between June and October is greater than four
days, Lin stated that he must have arrived on June 12, 2002, and denied
stating that he arrived on October 12, 2002.
LIN v. HOLDER 9339
affirmed the decision of the IJ. Lin timely petitioned for
review.
II
Lin first argues that denial of his asylum application is not
supported by the record. The government responds that we
lack jurisdiction to review such denial.
A
[1] The Immigration and Nationality Act (“INA”), as
amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, requires that an asylum applicant
“demonstrate[ ] by clear and convincing evidence that the
application has been filed within 1 year after the date of the
alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
Although 8 U.S.C. § 1158(a)(3) provides that “no court shall
have jurisdiction to review any determination” concerning the
one year filing deadline, section 106 of the REAL ID Act of
2005 restored our jurisdiction over “constitutional claims or
questions of law” raised in a petition for review. Id.
§ 1252(a)(2)(D); see Tamang v. Holder, 598 F.3d 1083, 1088
(9th Cir. 2010); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121,
1124 (9th Cir. 2006) (en banc). In Ramadan v. Gonzales, 479
F.3d 646 (9th Cir. 2007) (per curiam), we held that “questions
of law” include “not only ‘pure’ issues of statutory interpreta-
tion, but also application of law to undisputed facts, some-
times referred to as mixed questions of law and fact.” Id. at
648.
[2] Applying the principle of Ramadan, we held in
Khunaverdiants v. Mukasey, 548 F.3d 760 (9th Cir. 2008),
that we nevertheless have jurisdiction over the determination
whether an alien applied for asylum within one year of arriv-
ing in the United States because the underlying facts are
undisputed. Id. at 765-66. We further held that the facts are
undisputed, even if the exact departure and arrival dates are
9340 LIN v. HOLDER
unclear, if “any view of the historical facts necessarily estab-
lishes that [the alien] filed his asylum application within one
year of arrival.” Id. at 765. In Khunaverdiants, all of the dates
to which the alien testified regarding his arrival and departure
fell within four months of his application for asylum, and the
IJ credited the alien’s testimony that he had been persecuted
and released from prison in Iran less than one year before he
applied for asylum. Id. at 766. We concluded, therefore, that
it was an “undisputed historical fact that [the alien] arrived in
the United States less than one year before filing his asylum
application,” and proceeded to exercise jurisdiction to review
the BIA’s timeliness determination. Id.
[3] This case is indistinguishable from Khunaverdiants.
Under “any view of the historical facts,” Lin filed his applica-
tion within one year of arrival. Although Lin, like Khunaverd-
iants, testified to different dates of departure and arrival, see
supra note 1, all of the dates fall within one year of his appli-
cation for asylum on March 24, 2003. Furthermore, also like
Khunaverdiants, Lin testified that he hid in China until June
2002, and his testimony was not discredited by the IJ.
Because the underlying fact that Lin arrived in the United
States less than one year before filing his asylum application
is undisputed, we have jurisdiction to review the determina-
tion that Lin did not timely file his asylum application.
B
[4] As to the merits of that determination, section
1158(a)(2)(B) requires that an asylum applicant provide clear
and convincing evidence that he filed for asylum within one
year of arriving in the United States. The IJ held that Lin did
not meet this burden because he testified to different arrival
dates and locations and failed to provide any documentary
evidence supporting them.
[5] In Khunaverdiants, however, we held that “the BIA
erred in concluding that proof of an exact departure date was
LIN v. HOLDER 9341
necessary when other clear and convincing evidence estab-
lished that [the alien] necessarily filed his asylum application
less than one year after arriving in the United States.” 548
F.3d at 766. Once again, this case is indistinguishable from
Khunaverdiants. As in Khunaverdiants, the IJ did not dis-
credit Lin’s testimony that he hid in China until June 2002,
less than one year before he applied for asylum on March 24,
2003. It does not matter that Lin, unlike the alien in
Khunaverdiants, did not produce documentary evidence sup-
porting his testimony. 548 F.3d at 766-67. Under our circuit
precedent, Lin’s testimony is enough to establish a fact to
which he testified “without the need for any corroboration.”
Id. at 766 (quoting Kaur v. Ashcroft, 379 F.3d 876, 889-90
(9th Cir. 2004)). We conclude that Lin established by clear
and convincing evidence that he filed his asylum application
within one year of arriving in the United States and that the
case must be remanded to the BIA for consideration of his
asylum claim on the merits. See Gonzales v. Thomas, 547
U.S. 183, 186 (2006) (per curiam).
III
Lin next argues that denial of withholding of removal and
CAT relief are not supported by the record.
A
[6] To establish eligibility for withholding of removal, an
alien must show that it is “more likely than not” that he would
be subject to persecution on account of race, religion, nation-
ality, membership in a particular social group, or political
opinion if he returns to his native country. Al-Harbi v. INS,
242 F.3d 882, 888 (9th Cir. 2001); see INS v. Cardoza-
Fonseca, 480 U.S. 421, 429 (1987). The IJ held that Lin had
not established a likelihood that he would be subject to perse-
cution because Chinese authorities merely searched for him
only on account of his assistance to the Falun Gong practi-
tioner, not his political opinion or religion. Lin argues that
9342 LIN v. HOLDER
Chinese authorities searched for and would have persecuted
him because he assisted a Falun Gong practitioner, a member
of a persecuted minority, as required by his Daoist religion,
which commands aid to others.
[7] Ordinary prosecution for criminal activity is not perse-
cution “on account of” a protected ground. Dinu v. Ashcroft,
372 F.3d 1041, 1043-44 (9th Cir. 2004); Chanco v. INS, 82
F.3d 298, 301 (9th Cir. 1996). Here, substantial evidence sup-
ports the IJ’s conclusion. Lin testified that Chinese authorities
sought him because he assisted the Falun Gong fugitive in
violation of Chinese law. Notably, Lin never testified that
Chinese authorities sought him because they thought he was
a Falun Gong practitioner himself or because of his Daoist
beliefs. Although Lin alleged in his asylum application that
Chinese authorities sought him for “illegal religious activi-
ties,” he did not once substantiate this claim, or even repeat
it, in his testimony. Quite the opposite, Lin testified that his
temple had not experienced any problems with authorities
until assisting the escapee.
[8] Moreover, “[o]ur caselaw characterizes persecution as
an extreme concept, marked by the infliction of suffering or
harm . . . in a way regarded as offensive.” Li v. Ashcroft, 356
F.3d 1153, 1158 (9th Cir. 2004) (en banc) (internal quotation
marks omitted). Here, substantial evidence supports the IJ’s
conclusion that Lin would not be subject to persecution
because Lin did not provide any evidence that Chinese
authorities would act in such an “extreme” way as to rise to
the level of persecution. He testified merely that some mem-
bers of his temple had been arrested for their involvement,
which hardly establishes persecution. See Gu v. Gonzales, 454
F.3d 1014, 1019-21 (9th Cir. 2006) (holding that brief deten-
tion, beating, and interrogation did not compel a finding of
persecution). Therefore, the record does not compel the con-
clusion that the IJ erred in denying Lin’s request for withhold-
ing of removal.
LIN v. HOLDER 9343
B
[9] To qualify for CAT protection, an alien must show a
likelihood that he would be tortured if removed to his country
of origin. 8 C.F.R. § 208.16(c)(2); Tamang, 598 F.3d at 1095.
The IJ held that Lin had not established he would likely be
tortured. We are satisfied that substantial evidence supports
the IJ’s decision.
[10] “Torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman
or degrading treatment or punishment that do not amount to
torture.” Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001)
(quoting 8 C.F.R. § 208.18(a)(2)). It “does not include pain or
suffering arising only from, inherent in or incidental to lawful
sanctions.” Id. (quoting 8 C.F.R. § 208.18(a)(3)). Here, the
actions of Chinese authorities suggest, at most, that Lin may
be subject to interrogation or punishment for his assistance to
the escapee. Nothing in the record suggests that Lin is likely
to be tortured by Chinese authorities. Therefore, the record
does not compel the conclusion that the IJ erred in denying
Lin’s request for CAT relief.
IV
The petition for review is GRANTED in part and
DENIED in part, and the case is REMANDED for consider-
ation of Lin’s asylum application on the merits.
O’SCANNLAIN, Circuit Judge, specially concurring:
I join in the court’s decision because it faithfully applies
our precedent in Khunaverdiants v. Mukasey, 548 F.3d 760,
765-66 (9th Cir. 2008), which is an extension of Ramadan v.
Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam),
reh’g en banc denied sub nom. Ramadan v. Keisler, 504 F.3d
9344 LIN v. HOLDER
973 (9th Cir. 2007), to conclude that the REAL ID Act of
2005 provides us with jurisdiction to review the IJ’s determi-
nation that Lin did not apply for asylum within one year of
arriving in the United States. I continue to believe, however,
that Ramadan was wrongly decided. Dhital v. Mukasey, 532
F.3d 1044, 1052-53 (9th Cir. 2008) (per curiam)
(O’Scannlain, J., specially concurring); Ramadan v. Keisler,
504 F.3d at 973-78 (O’Scannlain, J., dissenting from denial of
rehearing en banc).
Ramadan holds that, for purposes of assessing our jurisdic-
tion under the REAL ID Act, “questions of law” include “not
only ‘pure’ issues of statutory interpretation, but also applica-
tion of law to undisputed facts, sometimes referred to as
mixed questions of law and fact.” Id. at 648. By now, nine
other courts of appeals have rejected such view. Chen v. U.S.
Dep’t of Justice, 434 F.3d 144, 153-54 (2d Cir. 2006); Suk-
wanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006);
Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009); Zhu v.
Gonzales, 493 F.3d 588, 596 n.31 (5th Cir. 2007); Almuhtaseb
v. Gonzales, 453 F.3d 743, 747-48 (6th Cir. 2006); Viracacha
v. Mukasey, 518 F.3d 511, 515-16 (7th Cir. 2008); Ignatova
v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005); Ferry v.
Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006); Chacon-
Botero v. U.S. Att’y Gen., 427 F.3d 954, 956-57 (11th Cir.
2005) (per curiam).
Despite the unanimity of our sister circuits in rejecting
Ramadan, we have extended it at least six times to other set-
tings, including the “extraordinary circumstances” exception
to the asylum application deadline, Husyey v. Mukasey, 528
F.3d 1172, 1178-79 (9th Cir. 2008), the “reasonable period”
filing requirement for the changed circumstances exception to
the asylum application deadline, Taslimi v. Holder, 590 F.3d
981, 984-86 (9th Cir. 2010), the “due diligence” requirement
to reopen an immigration case, Ghahremani v. Gonzales, 498
F.3d 993, 998-99 (9th Cir. 2007), the threshold requirements
for special rule cancellation in the Nicaraguan Adjustment
LIN v. HOLDER 9345
and Central American Relief Act, Barrios v. Holder, 581 F.3d
849, 857 (9th Cir. 2009), the application of the definition of
“terrorist organization” in the terrorist bar to asylum, Khan v.
Holder, 584 F.3d 773, 779-80 (9th Cir. 2009), and the deter-
mination of whether an alien applied for asylum within one
year of arriving in the United States, Khunaverdiants, 548
F.3d at 765-66. On the other hand, we have refused to extend
Ramadan to the “exceptional and extremely unusual hard-
ship” inquiry for cancellation of removal. Mendez-Castro v.
Mukasey, 552 F.3d 975, 980-81 (9th Cir. 2009).
I continue to believe that we have seized jurisdiction over
a multitude of petitions for review that Congress has placed
beyond our reach through unambiguous statutory language.
Khunaverdiants, the precedent that directly controls the out-
come of this case, demonstrates how far we have strayed from
the text of the INA. In Khunaverdiants, we extended Rama-
dan to determinations involving factual uncertainty, as long as
the petitioner meets the statutory standard under any view of
the facts. 548 F.3d at 766. In so doing, we have stuck our
noses further into disputes in which Congress has forbidden
us a role. Nevertheless, because Ramadan and Khunaver-
diants are binding on me, I join the court’s decision.