Submitted February 4, 2019 [*] Pasadena, California Filed May 30,
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A206-341-685
Beri Kapur, Law Offices of Gita B. Kapur, Los Angeles,
California, for Petitioner.
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.
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,
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.
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
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.
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.
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
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
NGUYEN, CIRCUIT JUDGE
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").
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.
Guan's Introduction to Christianity
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."
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."
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
Guan's Participation in the Pyramid Scheme
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.
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."
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.
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
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."
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.
Guan's Bar and ...