Summary
Guan was denied asylum and withholding of removal because there were serious reasons (probable cause) to believe he committed a serious nonpolitical crime—embezzlement of public funds in China—where his involvement was purely economic, not political. The Ninth Circuit upheld the BIA's finding that Guan failed to rebut the presumption of a serious nonpolitical crime and that the adverse credibility finding did not affect the independent bar. However, the court remanded his Convention Against Torture claim because the BIA failed to consider evidence that Guan is a practicing Christian and that Christians face torture in China, even if his testimony was discredited. The court also rejected claims of due process violations and ineffective assistance of counsel.
Topics
Practice areas
Questions Presented
- Whether there were serious reasons to believe that Guan committed a serious nonpolitical crime, rendering him ineligible for asylum and withholding of removal.
- Whether Guan was denied due process at his removal hearings due to his fasting, problems with the interpreter, and ineffective assistance of counsel.
- Whether the BIA erred in denying CAT relief without considering evidence of Guan's current Christian practice and country conditions indicating that Christians face a risk of torture in China.
Holdings
- Yes, substantial evidence supports the agency's determination that Guan committed a serious nonpolitical offense (embezzlement of public funds) and that the crime was nonpolitical because Guan admitted economic motives. Therefore, Guan is statutorily ineligible for asylum and withholding of removal.
- No, Guan was not denied due process. The IJ acted with caution in continuing the hearing due to fasting, the interpreter problems did not affect the fairness, and counsel's failure to object to the asylum officer's notes was not deficient performance and did not prejudice the outcome.
- Yes, the BIA erred because it failed to address evidence that Guan is a practicing Christian and that Christians face a risk of torture in China. The adverse credibility finding did not eliminate this evidence. Therefore, the CAT claim is remanded for further consideration.
Key quotations
“"A 'serious non-political crime' is a crime that was not committed out of 'genuine political motives,' was not directed toward the 'modification of the political organization or . . . structure of the state,' and in which there is no direct, 'causal link between the crime committed and its alleged political purpose and object.'" (quoting McMullen v. INS, 788 F.2d 591, 595 (9th Cir. 1986))” (15)
“"In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character. This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature." (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 422 (1999))” (15)
“"To obtain relief under [the] CAT, a petitioner must prove that it is more likely than not that he or she will be tortured in the country of removal."” (20)
“"Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Lawful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty . . . ."” (20)
Factual background
Guan, a native of China, was involved in a financial pyramid scheme (Jintailong Investment Company) that embezzled public funds from local government officials. He also participated in an unregistered house church, leading to his arrest and beating by police in January 2013. He fled to the United States in October 2013 and applied for asylum. China issued an Interpol Red Notice for his arrest related to the financial crimes. Guan feared persecution due to his Christian beliefs and retaliation for exposing corruption, and he claimed he would be tortured if returned to China.
Procedural history
Guan applied for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ denied all relief, finding that there were serious reasons to believe Guan committed a serious nonpolitical crime and that he was not credible. The BIA affirmed. Guan petitioned for review to the Ninth Circuit.
Remand instructions
The CAT claim is remanded to the BIA for reconsideration in light of the country reports and the letter from Guan's U.S. church.