Petition for Review of an Order of the Board of Immigration
Appeals (BIA No. 1:A 089 898 694)
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.
BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.
MURPHY, Circuit Judge.
matter is before the court on Respondent Loretta E.
Lynch's unopposed Motion to Amend the Decision and
Petitioner Ting Xue's Petition for Panel Rehearing and
Rehearing En Banc.
panel grants the Respondent's unopposed Motion to Amend
and, thereby, replaces the phrase "clear error"
with the phrase "substantial evidence" in the first
and third sentences on page four of the slip opinion and the
final sentence of footnote ten. A copy of the revised
opinion, filed nunc pro tunc to the original filing date of
November 25, 2016, is attached to this order.
Xue's Petition for Panel Rehearing is denied. The request
for rehearing en banc was transmitted to all of the judges of
the court who are in regular active service. As no member of
the panel and no judge in regular, active service on the
court requested that the court be polled, that request is
also denied. Judges Matheson and Gorsuch are recused.
for the Court
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
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." 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. The authorities arrested everyone in
attendance and took them to the police station.
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.
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.
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.
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.
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.
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