Xinbing Song v. Jefferson Sessions
882 F.3d 837
| 9th Cir. | 2017Background
- Xinbing Song, a Chinese citizen from Hunan, organized and led a protest (100+ people) opposing local government forced demolition and what he considered inadequate compensation.
- Song publicly protested, hung a banner saying he would rather die than give up his property, staged a sit-in, and refused to vacate pending fair compensation.
- Government officials labeled Song and the protestors “anti-government,” recorded leaders’ identities, and later arrested Song; he was detained, beaten, tortured, and forced to report to police after release.
- Song’s family paid 10,000 Yuan for his release; fearing further persecution he fled to the U.S. and applied for asylum, withholding of removal, and CAT protection.
- The Immigration Judge (IJ) and Board of Immigration Appeals (BIA) denied relief, finding Song’s dispute was a non-political property/compensation dispute; Song petitioned for review.
- The Ninth Circuit credited Song’s testimony and documentary record and concluded the evidence compelled a finding that Chinese authorities imputed a political opinion to Song and persecuted him on that account.
Issues
| Issue | Song's Argument | Sessions' (Gov’t) Argument | Held |
|---|---|---|---|
| Whether past persecution was "on account of" a political opinion (actual or imputed) | Song argued officials treated him as anti-government/anti-eminent-domain leader and punished him for that political stance | Gov’t argued Song’s actions were a private property/compensation dispute, not political | Court held the record compels that officials imputed an anti-government/anti-eminent-domain political opinion and persecuted him for it |
| Whether imputed political opinion doctrine applies | Song: persecutors’ statements and conduct show they attributed political views to him | Gov’t: focus on motive for compensation, not politics | Court: imputation rule applies; persecutors explicitly called him “anti-government” |
| Whether disproportionate punishment converts ordinary prosecution into persecution | Song: severity of beatings, torture, forced reporting, and pursuit after flight show persecution for politics | Gov’t: injuries arose from enforcement of law (disturbing the peace) | Court: disproportionate punishment supports finding of persecution on political grounds |
| Standard of review — compelled conclusion vs. substantial evidence | Song: evidence compels reversal | Gov’t: BIA/IJ findings supported by record | Court: evidence compels conclusion that BIA erred; grant petition and remand for discretionary asylum determination |
Key Cases Cited
- Navas v. INS, 217 F.3d 646 (9th Cir. 2000) (political opinion nexus and asylum standards)
- Cordon-Garcia v. INS, 204 F.3d 985 (9th Cir. 2000) (standard for compelling reversal of BIA decision)
- INS v. Elias-Zacarias, 502 U.S. 478 (Supreme Court) (nexus requirement for persecution on account of political opinion)
- Sangha v. INS, 103 F.3d 1482 (9th Cir. 1997) (imputed political opinion doctrine)
- Li v. Holder, 559 F.3d 1096 (9th Cir. 2009) (physical violence constitutes persecution; disproportionate punishment analysis)
- Singh v. Ilchert, 69 F.3d 375 (9th Cir. 1995) (persecutors’ statements showing motive demonstrate political nexus)
- Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007) (political opinion covers more than electoral or formal politics)
- Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010) (harm and accusations connecting conduct to opposition to government can show political motivation)