NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
XIAO GUO, No. 14-71868
Petitioner, Agency No. A088-335-868
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 28, 2017
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: W. FLETCHER and IKUTA, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.
Petitioner Xiaoping Guo, a Christian and native and citizen of the People’s
Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”)
order dismissing his appeal from an immigration judge’s decision denying his
applications for asylum, 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. §
1231(b)(3), and protection under the Convention Against Torture (“CAT”), 8 C.F.R.
§§ 1208.16(c), 1208.18(a). We have jurisdiction under 8 U.S.C. § 1252. We deny the
petition with respect to the BIA’s denial of eligibility for asylum and the denial of
protection under CAT. We grant the petition with respect to the denial of withholding
of removal, and we remand in light of the new standard announced in the intervening
case of Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017).
We conclude substantial evidence supports the Immigration Judge’s (“IJ”)
factual findings denying Guo’s asylum application, namely that he failed to establish
he was persecuted, or had a well-founded fear of persecution, on account of religion,
anti-government political opinion regarding the new cremation law, or any other
protected ground. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014).
The facts are undisputed that: (1) Guo did not know why he was arrested, detained and
**
The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
2
beaten; (2) police arrested only people who fiercely resisted the lawful police
authority in removing the decedent’s body; (3) none of the other Christians attending
the burial were arrested; and (4) Guo’s mother remains unharmed in their native
country, despite her continued Christian practice in a home church. Thus, substantial
evidence supports the IJ’s conclusion that resistance to police authority was the central
reason for Guo’s arrest, detention, beating and fine, and that neither religion nor
political opinion was a central reason for the treatment to which Guo was subjected.
There is, however, evidence in the record that could support a conclusion that
religion or political opinion was “a reason” for Guo’s treatment by the authorities.
Our decision in Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017), came down
after the BIA reached its decision in this case. We held in Barajas-Romero that
eligibility for withholding of removal, as distinct from eligibility for asylum, requires
only that a forbidden ground such as religion be “a reason” for the official action at
issue. The IJ and the BIA appear to have applied the criterion of “a central reason”
rather than “a reason” to Guo’s claim for withholding of removal. We therefore grant
and remand Guo’s petition for review with respect to the BIA’s denial of withholding
of removal in order to permit the agency to apply the proper standard as articulated
in Barajas-Romero.
3
Next, we turn to Guo’s claim under CAT. Guo contends that his ill treatment
by Chinese authorities amounted to torture within the meaning of CAT, and that he
is likely to be subjected to torture if he is returned to China. Guo’s ill treatment did
not rise to the level of cruel and inhumane treatment required to satisfy the standard
under CAT, and he has failed to establish that it is more likely than not that he will be
tortured if he is returned to China.
We therefore deny Guo’s petition with respect to his claims for asylum and for
relief under CAT. We grant his petition and remand to the BIA for reconsideration
of his claim for withholding of removal. We award costs to petitioner on the petition
for review.
PETITION FOR REVIEW DENIED IN PART, GRANTED IN PART, AND
REMANDED.
4
FILED
Guo v. Sessions, No. 14-71868
SEP 25 2017
Ikuta, Circuit Judge, concurring in part and dissenting in part:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur with the majority’s denial of the petition as to asylum and
protection under the Convention Against Torture, but dissent from the majority’s
remand as to withholding of removal. In Barajas-Romero v. Lynch, we recognized
that any distinction between “one central reason” in the asylum statute and “a
reason” in the withholding statute was inconsequential if “there was no nexus at all
between the feared persecution and [a protected ground].” 846 F.3d 351, 360 (9th
Cir. 2017) (discussing Zetino v. Holder, 622 F.3d 1007, 1015–16 (9th Cir. 2010)).
In this case, the BIA concluded that Guo had not established any nexus between
either his Christianity or imputed political opinion and his claim that he would
“more likely than not” suffer future persecution. 8 C.F.R. § 208.16(b)(2).
Substantial evidence supports this conclusion. Accordingly, I would deny the
petition as to withholding of removal.