Ting Xue v. Lynch
846 F.3d 1099
10th Cir.2016Background
- Ting Xue, a Chinese national and practicing Christian, attended illegal "house church" services; he was arrested in October 2007 during a raid, detained for 3 days/4 nights, slapped and struck once with a baton, and released after his family paid a substantial fine.
- Upon release Xue signed a guarantee not to attend house churches and was required to report weekly to police; he returned to the house church two weeks later and was later advised by family to leave China after further police activity targeting repeat offenders.
- Xue escaped China in March 2008 and entered the U.S. in July 2008; he applied for asylum, withholding of removal, and CAT protection.
- The IJ found Xue credible but denied asylum (no past persecution and no well-founded fear of future persecution), withholding, and CAT relief; a single-member BIA affirmed the IJ’s decision.
- The Tenth Circuit reviewed under the substantial-evidence standard and denied Xue’s petition for review, concluding the record did not compel findings of past persecution or a reasonable fear of future persecution and that CAT/withholding standards were not met.
Issues
| Issue | Xue's Argument | Lynch's Argument | Held |
|---|---|---|---|
| Standard of review for BIA determination whether facts amount to "persecution" | Xue (implicitly) accepts BIA/precedent; court should apply Vicente-Elias substantial-evidence review | Government relies on existing circuit precedent treating ultimate persecution finding as factual for substantial-evidence review | Court applied binding Tenth Circuit precedent (Vicente-Elias) and reviewed for substantial evidence; panel noted unresolved tension with BIA decisions but did not reach it. |
| Whether Xue suffered past persecution | Physical abuse, detention, unsanitary conditions, heavy fine, required reporting and guarantee letter constitute persecution | Harms were limited (brief detention, single non-serious physical blows, no medical treatment or lasting injury, family not financially devastated) and thus do not compel a finding of persecution | Court held evidence did not compel a reasonable factfinder to conclude past persecution; BIA determination affirmed. |
| Whether Xue has a well‑founded fear of future persecution (asylum) | Prior arrest, guarantee, and police interest show a particularized risk upon return | Family members remain in China and continue attending/hosting house church without incident; no updated evidence of continued police interest in Xue | Court held BIA reasonably found no particularized threat; Xue failed to show reasonable possibility of future persecution. |
| Withholding of removal / CAT relief | Past treatment and risk on return satisfy higher standards | Applicant failed to meet higher "more likely than not" (withholding) and "more likely than not to be tortured" (CAT) burdens | Court affirmed denial of withholding and CAT relief for failure to meet the more stringent standards. |
Key Cases Cited
- Hayrapetyan v. Mukasey, 534 F.3d 1330 (10th Cir.) (persecution requires more than restrictions or threats)
- Vicente-Elias v. Mukasey, 532 F.3d 1086 (10th Cir.) (ultimate determination whether facts constitute persecution is a factual question reviewed for substantial evidence)
- Niang v. Gonzales, 422 F.3d 1187 (10th Cir.) (BIA legal determinations de novo; factual findings substantial-evidence review)
- Witjaksono v. Holder, 573 F.3d 968 (10th Cir.) (similar fact pattern: brief detention and minor beating did not compel finding of past persecution)
- Kapcia v. INS, 944 F.2d 702 (10th Cir.) (brief detentions and single beatings did not require finding of persecution)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (review standard: BIA’s findings upheld if supported by reasonable, substantial, and probative evidence)
- Beskovic v. Gonzales, 467 F.3d 223 (2d Cir.) (warning that minor beatings or degrading treatment in detention can, contextually, rise to persecution)