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Xue v. Lynch

United States Court of Appeals, Tenth Circuit

November 25, 2016

TING XUE, Petitioner,
v.
LORETTA E. LYNCH, United States Attorney General, Respondent.

         On Petition for Review of an Order of the Board of Immigration Appeals

          David J. Feder, Munger, Tolles & Olson LLP, Los Angeles, California, for Petitioner.

          Allison Frayer, Trial Attorney (M. Jocelyn Lopez Wright, Senior Litigation Counsel, and Melissa Neiman-Kelting, Senior Litigation Counsel, with her on the briefs), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

          Before BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.

          MURPHY, Circuit Judge.

         Ting Xue, a native and citizen of China, petitions for review of an order by the Board of Immigration Appeals ("BIA"). The BIA affirmed an Immigration Judge's ("IJ") decision to deny Xue's application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Exercising jurisdiction pursuant to 8 U.S.C. § 1252, this court denies Xue's petition for review.

         I. Background

         A. Factual Background[1]

         Xue is a long-practicing, faithful Christian. He was raised as a Christian by his mother and was baptized in 1998 when he was thirteen years old. Xue attended services two or three times a week at an illegal "house church."[2] In light of the need to avoid detection by government officials, the house church Xue attended gathered at a different member's house each week. Despite this precaution, on Friday, October 26, 2007, Chinese authorities raided a house church service attended by Xue.[3] The authorities arrested everyone in attendance and took them to the police station.

         At the police station, each church member faced interrogation. In the interrogation room, two police officers sat behind a table facing Xue and another officer stood behind him. Officers questioned Xue as to his personal/biographical information and sought information regarding the organization and leadership of the house church. After Xue persisted in responding that there was no organizer of the house church, officers slapped Xue across the head and used a baton to hit Xue on his upper left arm. Because he was extremely frightened, all Xue could do was continuously repeat that he did not know the answers to the officers' questions.

         After the interrogation ended, the officers placed Xue in a small, dim jail cell with four other men from his house church. The five men shared a single wooden bucket for a toilet-a bucket not emptied during Xue's entire incarceration. Officers routinely mocked Xue and his cell mates, referring to themselves as the prisoners' "God, " claiming the power to refuse to feed them, and taunting them to call on Jesus for rescue. The prisoners were fed a bowl of porridge twice a day. Sometimes before they were fed, the officers forced the prisoners to sing the national anthem to ridicule the prisoners' habit of praying before eating. Xue remained in custody for three days and four nights.

         Xue was released from imprisonment only after his mother paid a significant fine. That is, although Xue's entire yearly salary at the shoe factory was 25, 000 yuan, the fine paid by Xue's mother to secure his release was 15, 000 yuan. Upon his release, he was forced to sign a document guaranteeing he would not attend any more illegal church meetings. Officers warned Xue that if he ever again attended services at a house church, he would be severely punished. Xue was required to report to the police station once every week and remain for one hour. During these weekly sessions, officers would ask Xue about his whereabouts during the week, tell him he should be patriotic and faithful to his job, and force him to write down his personal feelings about his reeducation.

         Two weeks after his release, Xue returned to his underground house church. Police officers again raided Friday youth services at Xue's house church in December 2007. Xue, who was working overtime at his job at a shoe factory, was not present during the raid. Everybody present at the house church during the second raid was arrested. Xue learned that all repeat offenders arrested during the second raid were prohibited from posting bond and were eventually sentenced to imprisonment for a term of one year.

         Xue testified he became fearful officers would learn he had continued to attend the house church, even though he was not present during the second raid. Because of these concerns, Xue's mother counseled him to stop reporting to the police station. Xue's mother sent him to stay at his aunt's house, a location ten hours away by bus. Xue remained at his aunt's residence for three months without returning home. When Xue failed to appear at the police station as required by the terms of his release from jail, officers came to his parents' house looking for him. Xue's mother told him the officers asked why he had failed to report as required and stated he needed to immediately report or he would be severely punished. Rather than returning home and resuming his weekly visits to the police station, Xue and his parents decided he should leave China. Xue's six uncles paid an exceedingly large amount of money to a smuggler to help Xue escape China. In March 2008, Xue left China using his own passport. He traveled for several months, ultimately entering the United States illegally through Mexico in July 2008.

         In addition to the testimony summarized above, Xue related that his mother continues to attend unregistered church services and his father and brother sometimes also attend those services. Although Xue's mother began hosting a weekly church meeting at her own home in 2010, she has never been arrested.

         B. Agency Decision

         An IJ denied Xue's request for asylum, [4] withholding of removal, [5] and relief under CAT.[6] As to asylum, the IJ found Xue's testimony credible but insufficient to establish refugee status. See 8 U.S.C. § 1158(b)(1)(B) (imposing on an asylum seeker the burden of establishing an entitlement to relief). The IJ concluded Xue's treatment at the hands of Chinese authorities before he came to the United States was not sufficiently severe to amount to past persecution. Cf. Hayrapetyan v. Mukasey, 534 F.3d 1330, 1337 (10th Cir. 2008) ("[P]ersecution requires the infliction of suffering or harm . . . in a way regarded as offensive and must entail more than just restrictions or threats to life or liberty." (quotation omitted)). Absent a showing of past persecution, the IJ recognized Xue was not entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1)-(2). Instead, Xue was obligated to independently establish the existence of a reasonable possibility he would suffer future persecution upon return to China. See id. The IJ determined Xue could not make the necessary showing given that his mother held house church meetings in her residence without incident over the previous three years. Furthermore, the IJ found the letters Xue submitted from his mother failed to demonstrate Xue would be specifically targeted for persecution if he returned to China. Because Xue failed to demonstrate his entitlement to relief under the asylum standard, the IJ concluded Xue also failed to meet the more stringent standard of proof applicable to a request for withholding of removal.[7] Finally, because Xue had alleged neither past torture nor asserted a fear of torture in the future, the IJ concluded Xue was not entitled to relief under CAT. See 8 C.F.R. §§ 208.13(c), 208.18(a).

         In a brief order, a single member of the BIA reviewed and affirmed the IJ's denial of asylum, withholding of removal, and relief under CAT. See 8 C.F.R. § 1003.1(e)(5) (empowering a single member of the BIA to resolve certain appeals in "a brief order"). When the BIA reviews an IJ's decision under the provisions of § 1003.1(e)(5), it is the BIA's decision "that constitutes the final order of removal under 8 U.S.C. § 1252(a)." Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). "Accordingly, in deference to the agency's own procedures, we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance." Id. In its order, the BIA affirmed the IJ's finding that Xue's testimony was credible. Nevertheless, like the IJ, the BIA concluded Xue's testimony was insufficient to carry his burden of establishing he was subjected to past persecution or there was a reasonable possibility he would, upon being returned to China, be subjected to persecution in the future. Because Xue could not satisfy the less rigorous standard for relief required for asylum seekers, and because he had not alleged past torture or a fear of future torture, the BIA concluded Xue's claims for withholding of removal and relief under CAT likewise failed.

         II. Discussion

         A. ...


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