FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XINBING SONG, No. 14-71113
Petitioner,
Agency No.
v. A087-885-446
JEFFERSON B. SESSIONS III, Attorney AMENDED
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2017
Pasadena, California
Filed December 18, 2017
Amended February 15, 2018
Before: Sidney R. Thomas and Jacqueline H. Nguyen,
Circuit Judges, and Carol Bagley Amon, * District Judge.
Opinion by Judge Nguyen
*
The Honorable Carol Bagley Amon, United States District Judge
for the Eastern District of New York, sitting by designation.
2 SONG V. SESSIONS
SUMMARY **
Immigration
The panel amended an opinion granting a petition for
review of the Board of Immigration Appeals’ denial of
asylum and withholding of removal to a citizen of China who
sought relief based on his political opinion.
The panel noted that there was no dispute that petitioner
had experienced past persecution at the hands of local
government, and that the petition turned on whether or not
the persecution was on account of petitioner’s actual or
imputed political opinion. The panel held that the evidence
compelled the conclusion that the Chinese government
imputed an anti-government and anti-eminent domain
opinion to petitioner, and persecuted him on that basis.
The panel vacated the denial of asylum relief, and
remanded for consideration of whether petitioner met the
other elements for asylum and withholding relief before
exercising discretion whether to grant asylum.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SONG V. SESSIONS 3
COUNSEL
Thomas Ogden (argued), Alhambra, California, for
Petitioner.
Lisa Damiano (argued), Trial Attorney; Katharine Clark and
Alison R. Drucker, Senior Litigation Counsel; John W.
Blakeley, Assistant Director; Chad A. Readler, Acting
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
NGUYEN, Circuit Judge:
Xinbing Song, a Chinese citizen, petitions for review of
the Immigration Judge’s (“IJ”) and Board of Immigration
Appeals’s (“BIA”) denial of his application for asylum,
withholding of removal, and protection under the
Convention Against Torture (“CAT”). Because the evidence
compels a finding that Song was persecuted by Chinese
authorities on account of an imputed or actual political
opinion, we grant the petition for review.
I.
Before arriving to the United States, Song lived in
China’s Hunan province. 1 In June 2009, Song’s local
1
This statement of facts is derived from the Administrative Record
that was before the IJ and BIA, including Song’s testimony, excerpts of
a 2010 Human Rights Report from the U.S. Department of State, Bureau
4 SONG V. SESSIONS
government notified him that it planned to demolish and
rebuild a building in which Song had owned a commercial
unit since 1997. Such local demolition projects, designed to
increase infrastructure and commercial development, have
resulted in the forced relocation of millions of Chinese
citizens. 2
Forced demolition was the leading cause of social unrest
and public discontent in China in 2010. 3 Affected residents
often were not paid market value for their property, and
sometimes received even less compensation than the
government initially promised. Nearly 70% of respondents
in one study reported that they had encountered problems
with demolition and relocation, either relating to
compensation or forced eviction. Government officials
frequently colluded with property developers to pay those
subjected to forced eviction as little as possible. Yet few
legal remedies were available to displaced residents, and
of Democracy, see Human Rights, & Labor, Country Report on Human
Rights Practices: China 22 (2010), https://www.state.gov/documents/
organization/160451.pdf, and Chinese newspaper articles, see Yan Jie,
Demolitions Cause Most Social Unrest, China Daily (June 6, 2011),
http://www.chinadaily.com.cn/china/2011-06/27/content_12780316.htm;
Qiao Long & Wen Yuqing, Eviction Death Sparks Clashes, Radio
Free Asia (Luisetta Mudie trans., May 13, 2011),
http://www.rfa.org/english/news/china/eviction-05132011135702.html.
2
“[A]ccording to the Centre on Housing Rights and Evictions, ‘at
least 1,25 million households were demolished and nearly 3,7 million
people were evicted’ in the period from 1997 to 2007.” Cong.-Exec.
Comm’n on China, 111th Cong., Ann. Rep. 187 (2010),
https://www.cecc.gov/sites/chinacommission.house.gov/files/2010%20
CECC%20Annual%20Report.PDF.
3
See also id.
SONG V. SESSIONS 5
local officials sometimes retaliated against those who tried
to protest.
Song’s local government offered him 6,500 Yuan per
square foot in compensation for his property. Song believed
the offer violated a local regulation that provided for
compensation of at least 10,000 Yuan per square foot. 4 Song
attempted to negotiate with government officials, but he was
told that he would not receive more than 6,500 Yuan per
square foot. 5
Song’s neighbors in the building also disagreed with the
offered compensation. Song went door to door in his
neighborhood and organized a protest. On July 29, 2009,
Song and over one hundred of his neighbors blocked the
entrance to a local government building. The protestors held
a banner that said “opposed to forced demolition” and
chanted slogans like “give me my fair compensation,”
“please do what is just,” and “return to me what is mine.” 6
4
The regulation stated, “Pursuant to the Official Document No.
SZ(2003)58 of Shangqiu City People’s Government, the compensation
of the store front properties shall be set as RMB11,000 - 13,000 Yuan
per square meter, and residential properties shall be set as RMB3,000 -
4,000 Yuan per square meter.” The first floor of Song’s building was
commercial, and the upper floors were residential.
5
Given the text of the regulation, supra, n.4, it appears Song may
have confused whether the compensation was per square foot or square
meter in his testimony. The distinction is not relevant to the outcome
here.
6
Protests over forced demolition and relocation were common and
often turned violent. As the 2010 Human Rights Report noted, “the vast
majority of demonstrations concerned land disputes; housing issues;
industrial, environmental, and labor matters; government corruption;
6 SONG V. SESSIONS
A few minutes into Song’s protest, security guards and
an unidentified, non-uniformed employee came out of the
government building and asked for the leader of the protest.
Song told the employee the protestors were people “subject
to the [government’s] eminent domain measure.” One of the
security guards went back inside and, a few minutes later, a
government official came out of the building. The official
asked who was in charge and why the protestors were there
“to cause trouble and make problems.” Song told the official
he and two other neighbors were in charge and that the group
was “just [t]here to obtain justice and fairness.” When Song
declined to disperse the protestors unless they were given “a
fair remedy and justice,” the official responded, “Do you
realize the consequences of your actions?”
Song and the other leaders followed the government
official into the building. Once inside, the government
official recorded the leaders’ names and other identifying
information. The official said the protest could not continue
because it was “anti-government” and “not right.” The
official said the government would issue a written decision
on the city’s demolition plans in the next week. Song
informed the official that if he and his neighbors did not
receive an adequate answer, the protestors would return.
taxation; and other economic and social concerns.” Protestors, and in
particular their leaders, were often targeted for prosecution. See also
Cong.-Exec. Comm’n on China Ann. Rep., supra, at 5 (“Petitioners in
many areas of China were mistreated, harassed, and detained for their
involvement in advocating for housing rights and for organizing to
protest forced evictions and relocations in which the government failed
to meet its obligations to compensate residents fairly and in accordance
with the law.”).
SONG V. SESSIONS 7
Song received a letter from the local government on
August 5, 2009, that the demolition would proceed. Song
continued his protest of the forced demolition by hanging a
banner from his unit expressing his opposition. The banner
stated that Song would rather die than give up his property. 7
Song also moved his belongings into and began sleeping in
one of the upstairs residential apartments, then vacated by its
tenants because of the demolition notice.
Twelve days later, Song was arrested. Two police
officers entered the apartment, overpowered his efforts to
resist, and took Song to a detention center. He was charged
with interfering with official duties. During the three days
Song was jailed, police tortured and beat him, and
encouraged his cell mates to do the same. Song was forced
to spend an entire night in a squatting position. The police
also interrogated him about his alleged crime. When asked
why he had gathered the crowd of protestors, Song
maintained that the compensation the government had
offered was not fair and was inconsistent with government
regulation.
Prison officials accused Song of being “anti-
government,” “subvert[ing] the government,” and
“preventing the [government] official from doing official
duties.” They tried to get Song to confess to the same. When
Song refused, police beat him with a baton and electric baton
until he passed out. Song suffered multiple injuries from the
beatings, to the point that he was unable to walk.
7
Such “sit-in” demonstrations, also common in China at the time,
often turned violent and sometimes resulted in the resident’s suicide or
death.
8 SONG V. SESSIONS
Song’s family managed to pay 10,000 Yuan to secure his
release for medical treatment. After his release, Song was
required to continue reporting to the police every week.
Fearing that he would be arrested and tortured again, Song
fled China and entered the United States on a visitor visa in
January 2010. The police continued to look for Song for
months after he fled.
II.
Despite crediting Song’s unrefuted testimony and
admitting a 2010 Human Rights Report from the U.S.
Department of State that documented the unrest caused by
eminent domain disputes, the IJ denied Song’s application
for relief and ordered his removal to China. The IJ found
that this case “has to do with eminent domain and the
compensation that the government offered the respondent
and the other property owners for property that the
government intended to demolish,” which is “not a matter
that is political in nature.” The IJ also found “nothing in this
record to suggest that the respondent was being punished
because he was voicing political objections to the way that
the government was running.”
The BIA upheld the IJ’s decision, finding that Song
failed to show that he was eligible for asylum because he
“did not establish a nexus to a protected ground based on his
personal dispute with the Chinese government over the value
of his land.” The BIA agreed with the IJ that Song’s actions
“were motivated by a desire for increased compensation for
his property, not by political views.” 8
8
The IJ and BIA also denied Song’s applications for withholding of
removal and CAT protection. The government contends that Song has
SONG V. SESSIONS 9
III.
A petitioner is eligible for asylum when his imputed or
actual political opinion was one central reason for his past
persecution. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1); Navas
v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000). We uphold
the BIA’s determination of ineligibility if the findings are
“supported by ‘reasonable, substantial, and probative
evidence on the record.’” Cordon-Garcia v. INS, 204 F.3d
985, 990 (9th Cir. 2000) (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)). However, where the evidence
“compels the conclusion that th[e] findings and decisions are
erroneous,” we must overturn the BIA’s decision and grant
the petition for review. Id.
There is no dispute here that Song experienced past
persecution at the hands of the local government. 9 He was
tortured and beaten by police, and by his cell mates at the
encouragement of the police. He was forced to stay in a
squatting position all night, and, when he refused to
cooperate with interrogators, he was beaten until he could
not walk. See Li v. Holder, 559 F.3d 1096, 1107 (9th Cir.
2009) (“It is well established that physical violence is
persecution under 8 U.S.C. § 1101(a)(42)(A).”). This appeal
turns instead, then, solely on whether the persecution Song
waived any challenge to his eligibility for these other forms of relief. We
agree as to the CAT claim because Song did not address the IJ’s finding
that the persecution he experienced did not rise to the level of torture.
However, Song did not waive his withholding of removal claim. The IJ
denied this claim for the same reason she denied asylum, and Song
extensively addressed this issue on appeal.
9
The IJ so found, and the BIA did not review nor dispute that
finding. Nor have the parties raised the issue on appeal. See 8 C.F.R.
§ 208.13(b)(1).
10 SONG V. SESSIONS
suffered was on account of an imputed or actual political
opinion.
IV.
“If the persecutor attributed a political opinion to the
victim, and acted upon the attribution, this imputed view
becomes the applicant’s political opinion as required under
the [Immigration and Nationality] Act.” Sangha v. INS,
103 F.3d 1482, 1489 (9th Cir. 1997). The record compels
the conclusion that the government officials at the protest
and the police who arrested Song imputed to him an anti-
government, anti-eminent domain political opinion, and that
that imputation was one central reason for his persecution.
From the government’s perspective, Song was the leader
of a large group of local residents protesting the
government’s eminent domain policy. Song organized over
one hundred people to block the entrance of a government
building. He identified himself as a leader of the protest and
told a government employee that the protestors were there
specifically because they were subject to the government’s
eminent domain policy. He refused to disperse the crowd
until the residents’ concerns about the forced demolition of
their building were heard. The Chinese government was
familiar with such protests; the 2010 Human Rights Report
confirms that forced relocation protests were “common” and
that there was “widespread” animosity toward forced
demolitions. It was in this context that government officials
approached Song.
But we need not rely solely on the political atmosphere
here to find that the government officials imputed a political
opinion to Song; the officials said so themselves. A
government official accused Song and the other protestors of
being “anti-government.” Police officers expressed the
SONG V. SESSIONS 11
same view when they accused Song of holding anti-
government views in response to Song’s assertion that the
compensation he was offered was not consistent with
government regulation. Thus, it is clear that the government
officials and police attributed a particular view—one of
being anti-government and anti-eminent domain—to Song.
See Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995)
(finding persecution on account of political opinion when the
persecutors’ statements indicated they were acting because
of the victim’s political beliefs).
When Song intensified his protest of the forced
demolition, so too did the government intensify its response.
The police arrested, beat, and tortured Song when he hung a
banner stating he would rather die than give up his property
and refused to vacate. Song was jailed for three days. He
was only released when his family was able to pay 10,000
Yuan and the injuries he had sustained from the beatings and
torture required medical aid. The police required Song to
report regularly to them after his release and continually
sought him after he left the country. The government
officials’ disproportionate punishment for what was
essentially a disturbing the peace charge also supports a
finding that the persecution was because of an imputed
political opinion. See Li, 559 F.3d at 1109 (observing that
“disproportionately severe punishment” can transform an
ordinary prosecution into persecution (internal quotation
marks omitted)); cf. Baghdasaryan v. Holder, 592 F.3d
1018, 1024–25 (9th Cir. 2010) (concluding that petitioner
suffered harm due to his political opinion when militia beat
him and accused him of “raising his head” against a corrupt
government official).
Whether or not Song viewed himself, his protest, or his
refusal to vacate as anti-government, the government
12 SONG V. SESSIONS
officials made clear that they viewed them as such. Cf.
Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000)
(reversing BIA’s determination that persecution was not on
account of political opinion where victim’s actions
“demonstrated to the [persecutor] that she planned to
continue alignment with a cause obviously at odds with [his]
goals”). Accordingly, we find that the record compels the
conclusion that the government imputed an anti-eminent
domain opinion to Song, and persecuted him for that
opinion.
In concluding otherwise, the IJ and BIA took a very
narrow view of what could qualify as an actual political
opinion in the asylum context. We have held that “[a]
political opinion encompasses more than electoral politics or
formal political ideology or action.” Ahmed v. Keisler,
504 F.3d 1183, 1192 (9th Cir. 2007). The record makes
clear that Song not only sought additional compensation for
himself, but also staged a public protest of more than one
hundred neighbors and a sit-in refusal to vacate his building,
accompanied by a statement that he would die for the cause,
in opposition to the demolition. The IJ and BIA narrowly
focused on Song’s “desire for increased compensation for
his property” without taking into account the full spectrum
of Song’s actions.
* * *
The evidence before the IJ and BIA compels the
conclusion, at the very least, that Chinese authorities
persecuted Song because of a political opinion they imputed
to him. We therefore grant the petition for review, vacate
the BIA’s denial of asylum, and remand for consideration of
SONG V. SESSIONS 13
whether Song has met the other elements for asylum relief
before exercising discretion whether to grant asylum.
PETITION GRANTED.