FILED
NOT FOR PUBLICATION JAN 06 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUEGANG WANG, No. 09-73415
Petitioner, Agency No. A097-857-918
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 3, 2013
Pasadena, California
Before: SCHROEDER, NOONAN, and CLIFTON, Circuit Judges.
Xuegang Wang, a native and citizen of the People’s Republic of China,
appeals the decision of the Board of Immigration Appeals (“BIA”) denying his
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Because Wang filed his application prior to
May 11, 2005, the REAL ID Act does not govern this case. Joseph v. Holder, 600
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
F.3d 1235, 1240 n.3 (9th Cir. 2010). We have jurisdiction under 8 U.S.C. § 1252.
The BIA’s factual findings are reviewed for substantial evidence, while questions
of law are reviewed de novo. Zhang v. Gonzales, 408 F.3d 1239, 1244 (9th Cir.
2005). We grant Wang’s petition in part, deny it in part, and remand it to the BIA
for review.
Substantial evidence does not support the BIA’s finding that Wang has
failed to establish a nexus between the harm he suffered and the protected ground
of political opinion. To the contrary, the record compels the conclusion that the
police imputed pro-Western and pro-labor political opinions to Wang, and that he
was harmed at least in part because of those imputed beliefs. See Hu v. Holder,
652 F.3d 1011, 1016-20 (9th Cir. 2011). The police forcibly arrested Wang
outside the municipal government building after identifying him as “leading” the
workers’ protest. Wang was then interrogated, accused of spreading Western
ideology and inciting workers to protest, beaten unconscious, and held captive for
ten days until he agreed in writing not to “organize workers anymore” or “spread
Western thoughts such as democracy, freedom and human rights.” After his
release, the police continued to ask Wang at his weekly reporting sessions if he
planned to “organize[] any workers,” threatening to throw him in jail if he did.
2
On these facts, as in Hu, we conclude that Wang has established the nexus
requirement and remand for the BIA to determine whether Wang’s past
mistreatment rises to the level of persecution such that his application for asylum
and withholding of removal may be granted. See Hu, 652 F.3d at 1020.
We deny Wang’s petition as to his CAT claim because he has failed to show
that it is more likely than not that he would be tortured if he were removed to
China. See 8 C.F.R. § 1208.16(c)(2).
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
Each party shall bear its own costs.
3
FILED
09-73415, Wang v Holder JAN 06 2014
MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. Even accepting Wang’s factual testimony as true, the
evidence does not compel the conclusion that Wang suffered persecution on
account of a political opinion.
Wang led a workers’ protest at a municipal government building. The
workers protested for two hours, after which representatives of the government
came out and took their letters. The representatives told Wang that they would
notify Wang’s company of their decision, and that they should go back home and
not block the way. Wang did not claim to have suffered any harm, let alone
persecution, at or following that protest. Less than ten days later, Wang led
another protest at the municipal building. This time, the protesters blocked the
door of the government building and the road. Wang told the government
representatives that the protesters would not leave until they got a response. Six
hours later, the police told the protesters that their protest was illegal and that they
were disturbing the peace, giving them five minutes to leave. While trying to
disperse the protesters, the police arrested Wang because he was the leader of the
group. Wang’s purported political opinions had not changed, but he was not
arrested after the first protest, only after he led a group blocking the building. That
was a normal law enforcement response, not compelling proof of political
persecution.
At the police station, Wang was asked to admit to spreading “Western
thoughts such as democracy, human rights, and freedom,” but the police did not
physically coerce him to confess. Nor was he beaten after explaining the workers’
position and accusing the company of being irresponsible. The physical abuse did
not start until Wang insulted the officers by accusing them of being “cold blooded
animals” just like the head of the company.
The record does not compel the conclusion that Wang was harmed because
the police imputed a political opinion to him. Rather, the record shows that Wang
was not arrested after the first protest but only after leading a group that blocked
the government building, which the protesters had been told not to do. Similarly,
he was not physically assaulted after expressing his pro-democracy political
opinions, but only after he directly and personally insulted the police officers. The
evidence did not compel a conclusion contrary to that reached by the BIA. Under
the deferential standard of review that should apply, the petition for review should
be denied.
2