ZHIQIANG HU v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ZHIQIANG HU, 
Petitioner, No. 09-70240
v.
 Agency No.
A099-736-933
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 5, 2011—Pasadena, California

Filed July 14, 2011

Before: Harry Pregerson, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Pregerson

9559
 HU v. HOLDER 9561

COUNSEL

Peter Afrasiabi (argued), One LLP, Newport Beach, Califor-
nia, and Kathryn Marie Davis, Pasadena, California, for the
petitioner.
9562 HU v. HOLDER
David H. Wetmore (argued), U.S. Department of Justice
Office of Immigration Litigation, Washington, D.C., and
Channah Farber, U.S. Department of Justice, Civil Division,
Washington, DC., for the respondent.

OPINION

PREGERSON, Circuit Judge:

Zhiqiang Hu, a native and citizen of China, petitions for
review of a final order of removal by the Board of Immigra-
tion Appeals (“BIA”). The BIA denied Hu’s applications for
asylum and withholding of removal because it concluded that
Hu had failed to establish that his past mistreatment was on
account of a protected ground. The BIA also denied Hu’s
application for protection under the Convention Against Tor-
ture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252.
We grant the petition for review and remand to the agency for
further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background1

Zhiqiang Hu is a fifty-one year old native and citizen of
China. He testified at his hearing before the Immigration
Judge (“IJ”) that he had been a machinery mechanic for a
“mid size nationally owned” factory and that he had worked
at this government-owned factory since December 1979. In
the affidavit Hu submitted in support of his asylum applica-
1
Hu testified consistently to the facts that follow. Because the BIA did
not make an explicit adverse credibility finding, we assume that the facts
in Hu’s testimony and asylum application are true. See Ernesto Navas v.
INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000) (“Where the BIA does not
make an explicit adverse credibility finding, we must assume that the
applicant’s factual contentions are true.”).
 HU v. HOLDER 9563
tion, he stated that the government-owned factory was very
successful, “[h]owever, good profit and sufficient funds
encouraged corruption of the factory leadership.” Hu further
stated that “factory officials often enjoyed themselves with
eating, drinking and giving gifts to their business connections
at public expense[.]” Hu explained that the factory leadership
“spent public funds on traveling, sightseeing and took factory
property as their own property.” Hu believed that the “factory
was heavily in debt” because of these corrupt activities.

On March 5, 2004, Hu and approximately 500 other work-
ers were laid off from their jobs at the government-owned fac-
tory and the factory was shut down. The workers were told
that the factory was “deeply in debt” and could not pay their
salaries. The laid-off workers were promised “supplemental
pay” of 6,000 yuan2 and an additional monthly salary depend-
ing on each employee’s work history.

Hu testified that these “promise[s] were not kept.” Hu and
two other factory leaders, acting as representatives of the fac-
tory workers, “wrote [two] complaint letters to the [govern-
ment agency in charge of the factory] to request proper
arrangement for the laid-off workers.” Initially, they did not
receive a response from the agency, but after further inquiry,
were told to “wait.”

Faced with “life pressure[s,]” and believing they had no
other options, Hu and the other two worker representatives
organized a group of “more than 100 laid off workers to pro-
test in front of the city government building.” Hu testified that
the protestors did not obtain a permit for the demonstration
because he believed “the government will not issue it.” Hu
testified that on September 3, 2004, he arrived at the govern-
ment building with the other organizers and laid-off workers
2
On April 21, 2011, 6,000 Chinese Yuan, also known as “RMB,”
equaled approximately $921.00. See XE Currency Calculator,
http://www.xe.com/ucc/.
9564 HU v. HOLDER
at about 8:30 a.m., but the front door was “closed tightly.”
The laid-off workers “wanted to go into the city government
to explain [their] situation,” but the guard would not allow
them to enter. The government employees in the building “did
not come out to see [the protestors] and they did not allow
[the protestors] to go in[side].” Thus, the group “sat quietly in
front of the front gate.”

Hu testified that he believed a guard “called the police, tell-
ing them that [the protestors] are here to cause trouble.” At
about 11 a.m., four police vehicles arrived at the city building
and, with “police batons in their hands[, the police] rushed
through the crowd of workers . . . and beat the crowd.” Hu
and the other two worker representatives tried to reason with
the police, but the police would not talk to them. Instead, the
police handcuffed them, pushed them into police cars, and
took them to the police station, where they were held sepa-
rately and not given any food or water.

The morning after his arrest, Hu was taken in for an interro-
gation. The police “accuse[d] [Hu] of gathering a crowd to
cause trouble and disturb the order of the society. Acting
against the government and against the [Communist] party.”
The police tried to get Hu to confess to these accusations, but
he refused. Hu told the police that he was “not against the
government and [ ] did not disturb the order of society. [He
was] just [in favor of] the legal rights of those laid off work-
ers.” A police officer grabbed Hu, punched and kicked him,
and slapped him in the face. Another police officer beat Hu
with a baton.

Hu was placed in a cell with six other people. He testified
that the room was locked, had no light, and had only a small
window about one square foot in size. Hu was detained there
for an additional ten days. He was given porridge and pickles
to eat, and was only allowed to leave the cell “in the morning
for personal hygiene.”
 HU v. HOLDER 9565
Hu was released after his family and friends paid “a guar-
antee money” of 3,000 RMB.3 As a condition of his release,
Hu was required to report every Tuesday to the police station,
and was placed under the supervision of the neighborhood
committees. Hu stated in his affidavit that if he violated these
rules, he “would be arrested again.”

Hu diligently reported weekly to the police. He stated in his
affidavit that he “was living in terror everyday [because he]
was afraid that [he] may be arrested again one day.” A friend
suggested Hu flee the country. Hu decided to go to the United
States and his friend’s friend “handled all matters related to
the visa,” including filling out Hu’s visa application. On Hu’s
visa application, this friend’s friend stated that the reason for
Hu’s travel to the United States was business-related and that
he would be traveling with a colleague. At Hu’s consular
interview, Hu told U.S. officials that he was traveling to the
United States for business purposes. Hu testified before the IJ
that the information in the visa application regarding his edu-
cation, employment history, and current employment was
false, and that he did not indicate on the visa form that he had
been arrested because he believed the Chinese government
would not allow him to leave the country if he did so.

On April 24, 2005, Hu arrived in the United States on a
visa that was valid until July 23, 2005. Hu’s wife remained in
China with their son, who at the time was very ill with a blood
vessel tumor. Hu’s wife informed him that the police visited
their house every ten to fourteen days looking for Hu. His
wife also told Hu, “no matter what[,] you cannot come back,
they have already [told] us that your charges [have] been
changed. Now you are being charged for betraying your coun-
try. If you come back, you will surely die.” Hu testified that
he is afraid that he would be persecuted if he is forced to
return to China “[b]ecause [he] was trying to seek the legal
3
On April 21, 2011, 3,000 RMB equaled approximately $461.00. See
XE Currency Calculator, http://www.xe.com/ucc/.
9566 HU v. HOLDER
benefit of all the laid off workers and [their] laid off salary
pay.” Hu explained that he is afraid that he would be arrested
again and “give[n] even more harsh punishment.”

B. The IJ and BIA Decisions

Without citing a single case, the IJ denied Hu’s applications
for asylum, withholding of removal, and protection under the
CAT. The IJ concluded that Hu was not credible because his
visa application “states that he worked as a manager for a
company,” but Hu testified that “he had been laid off from his
employment.” The IJ also concluded that Hu had failed to
establish that he had suffered persecution on account of any
of the protected grounds. The entirety of the IJ’s reasoning is
as follows:

Assuming that the 9th Circuit standard for credibility
holds that his statements in his declaration are con-
sistent, the respondent was involved in a protest out-
side a government office for which he did not have
authorization. The respondent protested being laid
off. However, there is no right to employment or he
has not shown that the fact that the factory was
closed and that 500 employees were laid off was in
any way on account of any of the protected grounds.
It was an economic, at best, decision but there is no
evidence that this was, in any way, related to a pro-
tected ground. Therefore, the respondent has failed
to establish a nexus between the laying off. As to
whether or not the respondent’s protest is protected,
the Court finds that it was not and that there is no
evidence that [Hu] was participating in any conduct
which is protected by the asylum laws. His protest
seems to have been an illegal gathering for which he
was arrested for disturbing the peace. Therefore, he
has not established a nexus with that conduct either.
Having failed to establish a nexus for asylum, he has
also failed to establish a nexus for withholding.
 HU v. HOLDER 9567
Finally, the IJ concluded that Hu had not established a clear
probability that he would be tortured and thus also denied Hu
protection under the CAT.

The BIA did not explicitly affirm the IJ’s adverse credibil-
ity finding, but “agree[d] with the [IJ’s] determination that the
respondent had not established a nexus to a protected
ground.” The BIA explained that “[e]ven if credible, it
appears that respondent’s mistreatment arose solely because
of a private dispute which does not qualify him for relief.”
The BIA also rejected Hu’s claim that he was expressing a
political opinion because he was a whistle-blower.

According to the BIA, Hu was not expressing a political
opinion during his protest “because he was seeking redress for
a private employment matter.” Since Hu failed to establish his
eligibility for asylum, the BIA reasoned that he had failed to
satisfy the higher standard required for withholding of
removal. Finally, the BIA concluded that Hu had failed to
establish that he would likely be tortured by or with the acqui-
escence of a government official, and therefore denied Hu
protection under the CAT.

II. STANDARD AND SCOPE OF REVIEW

We review for substantial evidence the BIA’s decision that
an applicant has not established eligibility for asylum, with-
holding of removal, and CAT protection. See Ahmed v. Keis-
ler, 504 F.3d 1183, 1191 (9th Cir. 2007); see also INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). We must uphold
the BIA’s factual findings if they are “supported by reason-
able, substantial, and probative evidence on the record consid-
ered as a whole.” Elias-Zacarias, 502 U.S. at 481 (internal
quotation marks omitted). Legal questions are reviewed de
novo. See Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.
2000).

Our “[r]eview is limited to the BIA’s decision, except to
the extent the IJ’s opinion is expressly adopted.” Hosseini v.
9568 HU v. HOLDER
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (internal quota-
tion marks omitted). “[T]his court cannot affirm the BIA on
a ground upon which it did not rely.” Doissaint v. Mukasey,
538 F.3d 1167, 1170 (9th Cir. 2008) (citing Ernesto Navas v.
INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000)).

The BIA’s decision is silent on the issue of credibility,
despite the IJ’s explicit adverse credibility finding, so we may
assume that the BIA found Hu to be credible. Krotova v. Gon-
zales, 416 F.3d 1080, 1084 (9th Cir. 2005).4 We therefore rely
on Hu’s testimony and review the determination that Hu has
not demonstrated a nexus to a protected ground for substantial
evidence.

III. DISCUSSION

To be eligible for a discretionary grant of asylum, Hu must
prove that he is a refugee; namely, that he is an alien who is
“unable or unwilling to return to, and is unable or unwilling
to avail himself . . . of the protection of, [his] country [of
nationality] because of persecution or a well-founded fear of
4
The government concedes that the BIA did not affirm the IJ’s adverse
credibility finding and that we are to presume Hu credible. “We take the
government’s case as it is presented to us.” Mamouzian v. Ashcroft, 390
F.3d 1129, 1133 n.2 (9th Cir. 2004).
The presumption of truth and the government’s concession are particu-
larly reasonable here, where the IJ’s adverse credibility finding is not sup-
ported by substantial evidence. The IJ erroneously concluded that
inconsistencies between Hu’s testimony before the IJ and information in
his U.S. visa application were material omissions supporting an adverse
credibility finding. See Akinmade v. INS, 196 F.3d 951, 956 (9th Cir.
1999) (distinguishing between “false statements made to establish the crit-
ical elements of the asylum claim from false statements made to evade
INS officials”); Kaur v. Ashcroft, 379 F.3d 876, 889 (9th Cir. 2004)
(“[T]he fact that an asylum seeker has lied to immigration officers or used
false passports to enter this or another country, without more, is not a
proper basis for finding her not credible.”), superseded by statute on other
grounds, REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as rec-
ognized in Singh v. Holder, 602 F.3d 982, 986-87 (9th Cir. 2010).
 HU v. HOLDER 9569
persecution on account of race, religion, nationality, member-
ship in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A).

To establish eligibility for asylum based on past persecu-
tion, Hu 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 government or forces the government is either
‘unable or unwilling’ to control.

Mengstu v. Holder, 560 F.3d 1055, 1058 (9th Cir. 2009)
(quoting Ernesto Navas, 217 F.3d at 655-56).

The only element at issue in this case is whether Hu was
harmed “on account of” a protected ground. “To demonstrate
a nexus between the harm [Hu] suffered and his political
opinion, [Hu] must show (1) that he held, or his persecutors
believed that he held, a political opinion; and (2) that he was
harmed because of that political opinion.” Baghdasaryan v.
Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (citing Ernesto
Navas, 217 F.3d at 656). A political opinion encompasses
more than just participation in electoral politics or holding a
formal political ideology. See Ahmed, 504 F.3d at 1192. “A
political opinion can be an actual opinion held by the appli-
cant, or an opinion imputed to him or her by the persecutor.”
Id. Under the REAL ID Act of 2005, Pub. L. No. 109-13, div.
B, 119 Stat. 231, 302 (2005), Hu must show that his actual
political opinion or a political opinion his persecutors imputed
to him “was at least one central reason” for his mistreatment.5
5
The REAL ID Act applies to Hu’s case because he filed his application
for asylum after May 11, 2005, the effective date of the REAL ID Act. Cf.
Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009) (applying pre-
REAL ID Act standards because petitioner’s asylum application was filed
before May 11, 2005).
9570 HU v. HOLDER
8 U.S.C. § 1158(b)(1)(B)(I); see also Parussimova v.
Mukasey, 555 F.3d 734, 740-41 (9th Cir. 2009). “[A] motive
is a ‘central reason’ if the persecutor would not have harmed
the applicant if such motive did not exist.” Parussimova, 555
F.3d at 741. There may be more than one central reason, and
an asylum applicant is not required to prove which reason is
dominant. See id.

Hu can establish the motivation of his alleged persecutors
by direct or circumstantial evidence. See Elias-Zacarias, 502
U.S. at 483. Hu has offered evidence that Chinese police offi-
cials mistreated him after they accused him of “gathering a
crowd to cause trouble and disturb the order of the society”
and “[a]cting against the government and against the [Com-
munist] party.” And notably the abuse persisted after he told
them that he was “not against the government” but was
merely in favor of “the legal rights of those laid off workers.”
It is not entirely clear if the police were motivated by the anti-
government political opinion they imputed to Hu, or by Hu’s
pro-labor position. Either motivation, however, satisfies the
nexus requirement because, under these facts, Hu’s pro-labor
position constituted a protected political opinion.

A. Chinese officials imputed an anti-government polit-
ical opinion to Hu

[1] An imputed political opinion is a valid basis for relief.
Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992).
“[W]e have repeatedly held that an applicant can establish
imputed political opinion based upon the persecutor’s errone-
ous belief as to the applicant’s political affiliation or opinion.”
Kumar v. Gonzales, 444 F.3d 1043, 1054 (9th Cir. 2006).
When an asylum applicant argues he was persecuted because
of an imputed political opinion, the focus shifts “from the
views of the victim to the views of the persecutor.” Sangha
v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997).

[2] Regardless of whether Hu actually held an anti-
government opinion, the record compels the conclusion that
 HU v. HOLDER 9571
the police imputed an anti-government political opinion to
Hu. They said as much to him: Hu credibly testified repeat-
edly that the police accused him of “acting against the govern-
ment and against the [Communist] party.” See Zhu v.
Mukasey, 537 F.3d 1034, 1045 (9th Cir. 2008) (concluding
that petitioner suffered harm on account of an imputed politi-
cal opinion, where the Chinese police arrested petitioner and
accused her of being “against the government” after she sent
a letter to the local town condemning the appointment of her
rapist to a position of local political power); Baghdasaryan,
592 F.3d at 1024-25 (political opinion was imputed to peti-
tioner where “top law enforcement official indicated that
[petitioner] was detained and beaten because he was ‘defam-
ing’ and ‘raising his head’ against” government corruption).
The anti-government political opinion Chinese officials
imputed to Hu is a protected ground under our asylum laws.
See id.

B. Hu’s pro-labor activities constitute a political
opinion

[3] Hu was also engaged in protected activity because he
held and expressed a pro-labor political opinion. We have
repeatedly recognized that labor speech in many instances can
be political. See, e.g., Zavala-Bonilla v. INS, 730 F.2d 562,
563 (9th Cir. 1984) (acknowledging the political nature of a
textile worker’s participation in her union’s activities, includ-
ing a nationwide strike); Prasad v. INS, 101 F.3d 614, 617
(9th Cir. 1996) (concluding that petitioner was persecuted
because of his advocacy for the workplace rights of Fijians of
Indian descent and his role as a delegate in the ousted Labour
Party); Agbuya v. INS, 241 F.3d 1224, 1229 (9th Cir. 2001)
(holding company executive was kidnaped based on imputed
political opinion stemming from a labor dispute); Vera-Valera
v. INS, 147 F.3d 1036, 1037-38 (9th Cir. 1998) (concluding
that Marxist guerillas imputed a pro-government political
opinion to labor leader’s support of a construction project that
would benefit the workers at the guerillas’ expense).
9572 HU v. HOLDER
Although there is no easy test to determine when a worker’s
or employer’s action is political — as opposed to or in addi-
tion to economic — our case law makes clear that labor agita-
tion advancing economic interests can nevertheless express a
political opinion.

[4] Hu’s engagement in labor speech is especially political
because his employer was the government. Moreover, his dis-
pute arose not from the normal course of business, but rather
from official corruption and deception. Hu wrote letters to the
government on behalf of the laid-off workers, led a protest
against the government in front of a government building, and
told Chinese officials that he was just in favor of “the legal
rights of those laid off workers” because the government
refused to pay promised severance benefits to Hu and his
coworkers after failing to prevent the corruption that left them
unemployed. See also Mamouzian v. Ashcroft, 390 F.3d 1129,
1133-35 & n.3 (9th Cir. 2004) (recognizing that petitioner
was persecuted on account of her political opinion when she
was arrested, detained, and beaten after expressing her oppo-
sition to the economic policies of the ruling party as imple-
mented in the state-run factory where she worked).
Accordingly, there is nothing in the record to support the
BIA’s conclusion that Hu’s “mistreatment arose solely
because of a private dispute.”

C. Hu was engaged in protected activity

Despite the compelling evidence that Chinese officials
imputed an anti-government political opinion to Hu and that
he was engaged in pro-labor political activities, the IJ con-
cluded that Hu’s activities were not protected under the asy-
lum laws because the “protest seems to have been an illegal
gathering for which he was arrested for disturbing the peace.”
Contrary to the IJ’s conclusion, the Chinese police officials
who arrested Hu did not accuse him of illegally gathering
without a permit. Rather, they accused him of “gathering a
crowd to cause trouble and disturb the order of the society,”
 HU v. HOLDER 9573
and “[a]cting against the government and against the [Com-
munist] party.” Perhaps a gathering without a permit disturbs
the order of society, but it is hardly an act against the ruling
party unless it is construed as a political protest. Even though
there might have been multiple motivations for the govern-
ment’s mistreatment of Hu, his credible testimony compels a
finding that one of the central reasons for his alleged persecu-
tion was because of a protected ground — his expression of
a political opinion, actual or imputed. See Parussimova, 555
F.3d at 741.

[5] China can legitimately require permits even for peace-
ful demonstrations — in America the First Amendment toler-
ates as much — but nothing in the record suggests that Hu’s
lack of a permit actually motivated the arrest and abuse. See
Yidong Bu v. Gonzales, 490 F.3d 424, 429 (6th Cir. 2007)
(concluding that petitioner was “detained not as a ‘common
criminal’ for violating China’s anti-strike laws, but as a politi-
cal prisoner who was guilty of opposition to the government”).6
The absence of any legitimate criminal prosecution is circum-
stantial evidence suggesting the Chinese government was not
legitimately punishing Hu for protesting without a permit or
simply disturbing the peace. See Ndom v. Ashcroft, 384 F.3d
743, 755 (9th Cir. 2004) (“[P]ersecution in the absence of any
legitimate criminal prosecution, conducted at least in part on
account of political opinion, provides a proper basis for asy-
lum and withholding of deportation . . . .”), superseded in part
6
There may be situations in which an arrest for protesting without a per-
mit is not a legitimate form of prosecution but a pretext for suppressing
political dissent. As we stated in Chanco v. INS, “[w]hen a government
does not respect the . . . right to peacefully protest, punishment by such
a government for a politically motivated act may arguably not constitute
a legitimate exercise of sovereign authority and may amount to persecu-
tion.” 82 F.3d 298, 302 (9th Cir. 1996); see also Bandari v. INS, 227 F.3d
1160, 1168 (9th Cir. 2000) (holding that the government was not engaged
in legitimate prosecution, where “the ‘investigation’ was aimed at stamp-
ing out political opposition to the government, even if it was under the
guise of a lawful investigation”).
9574 HU v. HOLDER
by statute as stated in Parussimova, 555 F.3d at 739-40. Hu
suffered an eleven-day detention, harsh interrogation, beatings
by police officials, and the requirements after his release that
he report to the police station weekly and endure the supervi-
sion of neighborhood committees, despite never being con-
victed of, or even charged with, a crime. Instead, Hu was
accused of opposing the Communist Party. Accordingly, the
IJ’s conclusion that Hu was not engaged in protected activity
because “[h]is protest seems to have been an illegal gathering
for which he was arrested for disturbing the peace” is not sup-
ported by substantial evidence in the record.

D. Hu has satisfied the nexus requirement

[6] In sum, the agency’s reasons for denying Hu’s applica-
tions for asylum and withholding of removal are clearly
untenable. The BIA ignored the anti-government political
opinion Chinese officials imputed to Hu as a motivating fac-
tor for their abuse, and erroneously concluded that Hu’s pro-
labor activities did not constitute an expression of a political
opinion. Further, the IJ’s conclusion that Chinese officials
mistreated Hu because of legitimate prosecution is not sup-
ported by substantial evidence.

[7] The record compels the conclusion that Hu has satis-
fied the nexus requirement. Chinese officials mistreated Hu
after accusing him of “[a]cting against the government and
against the [Communist] party,” and persisted even after he
told them he was just in favor of “the legal rights of those laid
off workers.” This is clear evidence that Chinese officials
mistreated Hu on account of a political opinion. See Kebede
v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (petitioner sat-
isfied the nexus requirement where soldiers stated that rape
was because of petitioner’s family’s position in prior Ethio-
pian regime); Borja v. INS, 175 F.3d 732, 736 (9th Cir. 2000)
(en banc) (finding the nexus requirement satisfied where the
petitioner had articulated her political opposition to the gueril-
las and they immediately got “mad” and pointed a gun at her),
 HU v. HOLDER 9575
superseded by statute on other grounds as stated by Parussi-
mova, 555 F.3d at 739. Accordingly, we hold that any reason-
able fact-finder would be compelled to conclude that the past
mistreatment Hu suffered was on account of a protected
ground.

E. Remand to the BIA

[8] We thus grant the petition for review and remand to the
BIA for a determination whether Hu is eligible for asylum and
withholding of removal. Hu argues that remand is not neces-
sary because the BIA’s conclusion that he failed to establish
a nexus presupposes a finding of past persecution. But the
nexus inquiry and the persecution inquiry are distinct, and
neither the IJ nor the BIA reached the issue of whether the
past mistreatment Hu suffered by Chinese officials constitutes
past persecution, or whether Hu has a well-founded fear of
future persecution. Under INS v. Ventura, when the BIA has
not considered an issue, “the proper course, except in rare cir-
cumstances, is to remand to the agency for additional investi-
gation or explanation.” 537 U.S. 12, 16 (2002) (per curiam).
Thus, we remand to the BIA to determine whether, in light of
this opinion, Hu suffered past persecution or has a well-
founded fear of future persecution.

[9] We also remand Hu’s CAT claim to the BIA because
we cannot conduct a meaningful review of the BIA’s decision
on this issue, where the BIA failed to provide a reasoned
explanation of its decision. See Movsisian v. Ashcroft, 395
F.3d 1095, 1098 (9th Cir. 2005) (“We have long held that the
BIA abuses its discretion when it fails to provide a reasoned
explanation for its actions.”). In his brief to the BIA, Hu’s
counsel “request[ed] the Board judicially notice” the State
Department’s 2004 Human Rights Practices Country Report
for China and quoted significant portions of the report that
show political dissidents suffer extreme punishment from
government officials. Hu testified that he has now been
charged with treason, so if the Chinese authorities do torture
9576 HU v. HOLDER
dissidents then he may have a colorable CAT claim. The BIA
did not indicate how it ruled on Hu’s request for judicial
notice or whether it considered the 2004 State Department
Report when it denied Hu protection under the 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 peti-
tioner.”). We therefore instruct the BIA on remand to provide
a reasoned explanation for its decision on Hu’s CAT claim.

IV. CONCLUSION

We grant the petition for review, and reverse the BIA’s
finding that Hu has not established a nexus to a protected
ground. We remand to the BIA to determine whether Hu has
established past persecution or a well-founded fear of future
persecution, with instructions to provide a more reasoned
explanation of its decision on Hu’s CAT claim.

Petition GRANTED; REMANDED for further proceed-
ings.