Cheng Xu v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHENG XU, No. 15-72081 Petitioner, Agency No. A089-882-703 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 5, 2018** Pasadena, California Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,*** Chief District Judge. Cheng Xu, a citizen of China, petitions for review of the Board of Immigration Appeal’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Dana L. Christensen, Chief United States District Judge for the District of Montana, sitting by designation. decision finding him ineligible for asylum and withholding of removal as an alien who has been persecuted on account of religion under the Immigration and Nationality Act (“INA”) §§ 208 and 241, 8 U.S.C. §§ 1158(b)(1) and 1231(b)(3)(A). We have jurisdiction to review the BIA’s final order of removal and denial of asylum under 8 U.S.C. § 1252, and we reverse. The BIA conducted a de novo review of Xu’s claims and did not expressly adopt the IJ’s opinion; accordingly, this Court need only review the decision of the Board itself, not the decision of the IJ. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006). We review questions of fact for substantial evidence. See Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004). Where evidence may support a contrary finding but does not compel it, this Court does not reverse BIA decisions. See 8 U.S.C. § 1252(b)(4); I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it.” (emphasis in original)). Substantial evidence does not support the IJ’s conclusion that Xu failed to establish asylum eligibility on the basis of past persecution under 8 C.F.R. § 1208.13(b)(1). Xu, an adherent of the Christian faith, was arrested with his fellow believers during a prayer meeting held in the home of another member of the fellowship. Chinese police detained Xu for fifteen days. During that time, Xu was interrogated, accused of participating in an “evil cult,” slapped, punched, 2 15-72081 kicked to the ground, and beaten while on the ground. The police released Xu only after his parents paid an 8,000 RMB bond and, as conditions for his release, Xu was prohibited from speaking to anyone about his treatment during detention, prohibited from contacting members of his Christian fellowship, and required to report weekly to the police. Xu reported to the police a total of twenty-eight times before leaving China six months later. Considering the totality of the circumstances, including Xu’s prohibition from Christian fellowship, these actions compel a finding ...

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