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Guan v. Barr

United States Court of Appeals, Ninth Circuit

May 30, 2019

Jiang Guan, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Submitted February 4, 2019 [*] Pasadena, California Filed May 30, 2019

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-341-685

          Gita Beri Kapur, Law Offices of Gita B. Kapur, Los Angeles, California, for Petitioner.

          Aric A. Anderson, Trial Attorney; Emily Anne Radford, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Ronald M. Gould and Jacqueline H. Nguyen, Circuit Judges, and Roger T. Benitez, [**] District Judge.

         SUMMARY[***]

         Immigration

         The panel denied Guan Chiang's petition for review of the Board of Immigration Appeals' denial of asylum and withholding of removal on the basis that there were serious reasons for believing he committed a serious nonpolitical crime, and granted in part the petition as to the Board's denial of protection under the Convention Against Torture, and remanded.

         The panel held that there were serious reasons to believe that Guan committed a serious nonpolitical crime, where he was involved in a financial scheme embezzling public funds. The panel held that Guan was therefore statutorily ineligible for asylum and withholding of removal.

         As to the issue of whether Guan's crime was nonpolitical, the panel held that Guan did not rebut the presumption that his embezzlement crime was a serious nonpolitical crime because he failed to establish that it had a political aspect or objective, and admitted that his involvement in the scheme stemmed from purely economic reasons. Rejecting Guan's contention that his crime was political in nature because the accusations against him were pretextual, the panel explained that Guan conflated a politically motivated prosecution with a politically motivated crime.

         As to the issue of whether there were "serious reasons" or probable cause to believe that Guan committed a serious nonpolitical crime, the panel held that there was probable cause, where Guan testified that he knew from the beginning that the purpose of the scheme was for public money to be embezzled and that the scheme was illegal.

         The panel also held that Guan failed to establish that he was deprived of due process at his hearings, or that his counsel provided him with ineffective assistance.

         The panel held that Guan failed to meet his burden for CAT protection based on his fear of torture in connection with his possible disclosure of alleged corruption by Chinese government officials, explaining that Guan had not identified any actions that he took in the United States to expose the alleged corruption by Chinese government officials, and torture does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions, including the death penalty.

         However, the panel remanded Guan's CAT claim based on his fear of torture in connection with his Christian beliefs, explaining that even if the Board properly rejected on adverse credibility grounds Guan's testimony concerning his past harm in China due to his religious beliefs, the Board failed to address evidence in the record supporting Guan's CAT claim, including evidence that Guan is currently a practicing Christian and that such individuals face a risk of torture in China.

          OPINION

          NGUYEN, CIRCUIT JUDGE

         Guan Jiang, a native and citizen of China, seeks review of a Board of Immigration Appeals ("BIA") decision denying him asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").

         We deny the petition as to Guan's claims for asylum and withholding of removal. Substantial evidence supports the agency's determination that Guan committed a serious nonpolitical offense and is therefore statutorily ineligible for asylum and withholding of removal. As to Guan's claim for relief under CAT, however, the IJ failed to consider evidence from Guan's church that he is a practicing Christian and evidence from the country reports that Christians are persecuted and tortured in China. Therefore, we grant the petition in part and remand to the BIA for further consideration of CAT relief.

         I. Factual Background

         A. Guan's Introduction to Christianity

         Guan grew up in Qingdao, China, where his grandmother raised him "to know the Christian faith." Guan had "a positive impression of Christianity," but he "did not understand the religious meaning." When his grandmother died in 2001, Guan "kept her Bible as a keepsake." Guan read the Bible but lacked "a deep comprehension of it."

         Years later, Guan ran into a childhood friend, Zhang Zhen, who told Guan about church gatherings that Zhang attended every weekend at a private home. Guan accompanied Zhang to a church meeting "out of curiosity" in May 2007. At the meeting, Guan was able "to truly understand God." The congregants at the house church "sang hymns, read the Bible, shared testimonies, loved one another[, ] and . . . were very happy."

         Guan attended the church meetings once or twice a month and eventually on a weekly basis. Guan knew that his church was not officially registered but "figured that . . . [he] could continue to participate" because they "had not done anything wrong." Guan claimed that he "became a Christian" when he was baptized in December 2007.

         B. Guan's Participation in the Pyramid Scheme

         In January 2009, Guan had dinner with his uncle, Guan Fengkun ("Uncle Fengkun"), where he met several local government officials, including Mayor Yu Jiantai and the director of the propaganda department, Naipeng Jiang. A few days later, Guan met with Director Jiang and Uncle Fengkun in his uncle's office. Jiang told Guan that the officials, led by Mayor Yu, were planning to form an investment company "to put together [their] money" and use it for infrastructure projects in Qingdao.

         Jiang explained that it was "not appropriate" for a government official to manage the company, so they needed to find a private citizen to do it. Guan agreed to become involved because it was a "rare" and "precious" opportunity for a young merchant like him to become acquainted with so many government officials, and he "had a lot of money on hand and . . . wanted to do some business."

         The following month, Mayor Yu provided office space for the venture by ordering the administration of industry and commerce to vacate its existing premises. A few days later, Guan received all of the licenses and permits necessary to operate the Jintailong Investment Company. Mayor Yu's secretary, Chen Xing, gave Guan detailed instructions about what the company would need to do and explained the different processes for handling funds raised from the public versus those invested by the government officials' relatives. Chen asked Guan to keep these details secret from the public.

         Jintailong opened in July 2009. The company was registered in Guan's name, and Guan seeded it with a ¶5 million investment from his own funds. Jintailong's clients included both members of the general public and-at least nominally-the relatives of government officials. A "large amount of cash" invested in Jintailong in the name of the officials' relatives and friends was in fact made by the government officials themselves and derived from "public money [that they had] embezzled . . . and their illegal income."

         During the company's first five years, it collected around ¶80 million from the general public and ¶700-900 million from the officials' family members. On the 18th day of each month, Guan collected the investors' money and delivered it to Mayor Yu via Secretary Chen or Director Jiang. Secretary Chen set aside some of the money, approximately ¶300, 000- 400, 000 per month, to pay interest to Jintailong's investors, which Guan brought back to Jintailong. Guan knew that Jintailong lacked the qualifications to receive public deposits or loans but did not worry because he received his orders from government officials and he believed that there were "several million companies like this."

         Mayor Yu and the government officials invested the money from Jintailong in construction projects and residential community development. However, these projects used "[i]nferior materials" and "substandard products." The development forced families to relocate and accept compensation at less than fair market value. When "numerous civilians" gathered to petition the government, Mayor Yu had the Public Security Bureau ("PSB") suppress them.

         C. Guan's Bar and ...


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