Guoqing Zhang v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUOQING ZHANG,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-72336
Agency No. A099-398-061
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 10, 2015
Pasadena, California
Before: REINHARDT and CLIFTON, Circuit Judges and DU,** District Judge.
Guoqing Zhang, a native and citizen of China, petitions for review of a
Board of Immigration Appeals’ order dismissing his appeal from an Immigration
FILED
AUG 03 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Miranda M. Du, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
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Judge’s decision denying his application for asylum, withholding of removal, and
relief under the Convention Against Torture. We deny the petition.
Substantial evidence supports the BIA’s determination that Zhang did not
satisfy the requirements necessary to establish eligibility for asylum based on past
persecution. Although whistle-blowing against corrupt government officials may
constitute political activity sufficient to form the basis for persecution on account
of political opinion, the record here does not compel such a conclusion. See Grava
v. I.N.S., 205 F.3d 1177, 1181 (9th Cir. 2000). In order to constitute political
opinion, Zhang’s opposition to corruption must be “directed toward a governing
institution” and not “against individuals whose corruption was aberrational.” Id.
Here, Zhang’s testimony indicates that the letters he wrote only complained about
his managers’ aberrational conduct, and not systemic government corruption.
Furthermore, substantial evidence supports the BIA’s conclusion that Zhang did
not demonstrate that his managers’ conduct was tied to pervasive government
corruption or to higher level government officials. Although the 2009 State
Department Report on China supports Zhang’s contention that local managers of
government-owned companies are susceptible to bribes and corruption, the report
also indicates that the central government has begun to combat this type of
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corruption. See U.S. Department of State, 2009 Human Rights Report: China at 29
(2010).
Furthermore, under the REAL ID Act, Zhang was required to demonstrate
that his political opinion was “one central reason” for his persecution. 8 U.S.C. §
1158(b)(1)(B)(i); see Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009).
A central reason “represents more than a mere ‘part’ of a persecutor’s motivation.”
Id. at 741. Here, the record does not compel the conclusion that the police or
Zhang’s managers were motivated to detain Zhang because of his perceived or
actual anticorruption beliefs. See id. Zhang did not attempt to expose his
managers’ conduct to any higher authorities, such as the central government, and
substantial evidence supports the BIA’s determination that Zhang’s arrests could
more likely be explained by his interruption of his managers’ dinner and his
disruption of public peace.
Substantial evidence also supports the BIA’s determination that Zhang did
not satisfy the requirements necessary to establish eligibility for asylum based on a
well-founded fear of future persecution. Zhang failed to show an objectively
reasonable fear of future persecution, and the record does not compel a contrary
conclusion. See Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011).
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Substantial evidence supports the BIA’s denial of withholding of removal.
As Zhang did not meet the lower standard of proof to establish asylum, it follows
that he also did not meet the more stringent “clear probability” standard to
establish eligibility for withholding of removal. See Ahmed v. Keisler, 504 F.3d
1183, 1199 (9th Cir. 2007).
Finally, Zhang asserted that he established the elements necessary for CAT
relief. However, Zhang’s brief to the BIA made no arguments regarding CAT
relief, and in his brief to this court Zhang failed to respond to the BIA’s holding
that the CAT issue was waived. Accordingly, the CAT argument is waived. See
Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).
Petition DENIED.
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Guoqing Zhang v Lynch 12-72336
REINHARDT, Circuit Judge, dissenting.
I would grant Guoqing Zhang’s petition on the ground that he is eligible for
a discretionary asylum determination and mandatory withholding of removal on
the basis of political opinion, or alternatively imputed political opinion. Because
the record before us compels the conclusion that Zhang suffered past persecution
and has demonstrated a well-founded fear of future persecution, I dissent.
To qualify as a political opinion for the purpose of asylum, whistleblowing
against government officials must be “directed toward a governing institution” and
not “only against individuals whose conduct was aberrational.” Grava v. I.N.S.,
205 F.3d 1177, 1181 (9th Cir. 2000). “When the alleged corruption is inextricably
intertwined with governmental operation,” however, opposition to “such an abuse
of public trust is necessarily political.” Id.
The corrupt practices about which Zhang complained included corruption
and embezzlement by the company’s leader, and were inextricably intertwined
with the operation of the government owned business he led. Such conduct,
moreover, was hardly aberrational. Rather, the State Department Report cited by
Zhang makes clear that such practices were widespread throughout China. The
report states that over the course of the year, “[n]umerous leaders of state owned
FILED
AUG 03 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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enterprises, who generally also hold high party rank, were investigated for
corruption,” and that 106,000 party members had been found guilty of corruption.
U.S. Dep’t of State, 2009 Human Rights Report: China at 29 (2010). See Hasan v.
Ashcroft, 380 F.3d 1114, 1120 (9th Cir. 2004), overruled on other grounds by
Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (petitioner’s whistleblowing
constituted a political opinion because she uncovered “an institutionalized level of
corruption that [went] far beyond an individual, anomalous case”); Mamouzian v.
Ashcroft, 390 F.3d 1129, 1135 (9th Cir. 2004) (petitioner’s acts of protests against
government corruption constituted political opinion because they were directed
against the “policies and practices of the governing party, and not against the
‘aberrational’ practices of an individual”). That the Chinese government has
initiated new steps to combat corruption only highlights its pervasiveness; no
evidence in the record suggests that the government’s nascent anti-corruption
efforts have actually succeeded in narrowing the scope of such activities. To the
contrary, the record indicates that the government’s efforts have been ineffective.
See U.S. Dep’t of State at 29 (“The law provides criminal penalties for official
corruption; however, the government did not implement the law effectively, and
officials frequently engaged in corrupt practices with impunity.”).
The majority asserts that Zhang’s whistleblowing did not constitute “one
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central reason” for his persecution because “Zhang did not attempt to expose his
managers’ conduct to any higher authorities, such as the central government.” The
majority simply ignores the uncontroverted fact that Zhang attempted to expose
this misconduct to the local government, sending two letters in which he
complained of his managers’ corruption, asserted that he had suffered retaliation,
and threatened to appeal to the central government. It is clear that Zhang’s
political activities constituted, at a minimum, “one central reason” for his
persecution because government officials said as much following each of his two
arrests. 8 U.S.C. § 1158(b)(1)(B)(i); see Parussimova v. Mukasey, 555 F.3d 734,
740-41 (9th Cir. 2009). Following his first arrest, the police accused Zhang of
harboring a “malicious desire to oppose the government,” and after arresting him a
second time accused him of “work[ing] with foreign elements and . . . foreign
organizations.”
The majority also asserts that Zhang’s first arrest is more easily explained by
the altercation following his interruption of his managers’ dinner. But this
purported cause of Zhang’s arrest does not come close to explaining the severity of
Zhang’s persecution following his arrest, when he was detained for seven days,
repeatedly beaten, and shocked with an electric baton. That would hardly seem to
be a likely response by local police officials to so minor an offense as disturbing a
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dinner party. Surely it is apparent, given the officers’ accusations, that Zhang’s
attack on governmental corruption was at least “one central reason” for the police
persecution of Zhang on this occasion.
Zhang’s second arrest sixteen months later occurred just three days after he
wrote another letter to the local government complaining of corruption and seeking
benefits he contended that he was deprived of as a result of his initial
whistleblowing. Following his second arrest, Zhang was subjected to further
persecution: he was detained for two days, during which he was interrogated and
beaten, and was then required to submit to ongoing police monitoring. No
explanation for this second act of persecution by the police appears in the record
other than Zhang’s complaint against governmental corruption. Surely the
response by the local governmental authorities on both occasions together
demonstrates beyond any doubt that even if one could conclude that Zhang did not
hold a political opinion, one would nonetheless be compelled to conclude that the
local government authorities imputed an anti-government political opinion to him.
The BIA’s decision to analyze each persecutory act in isolation, when they clearly
demonstrate a pattern of persecution, constitutes a legal error that undermines its
decision. In any event, because the record compels the conclusion that Zhang
suffered past persecution on account of his political opinion or his imputed
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political opinion, he is entitled to a presumption that he has a well-founded fear of
future persecution, a presumption that the government has failed to rebut. See
Recinos De Leon v. Gonzales, 400 F.3d 1185, 1190 (9th Cir. 2005).
For reasons similar to those stated above, I would hold that Zhang meets the
higher standards necessary for a grant of withholding and that such decision is
compelled by the record before us.
I respectfully dissent.
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