Yi Duan v. Jefferson Sessions
690 F. App'x 567
| 9th Cir. | 2017Background
- Duan, a Chinese national, applied for asylum, withholding of removal, and CAT protection after alleged mistreatment following his reporting of corruption to his company's management.
- Immigration Judge denied relief, making an adverse credibility finding; the BIA reviewed and dismissed Duan’s appeal but did not adopt the IJ’s adverse credibility determination.
- The BIA found Duan failed to establish persecution or a well-founded fear of persecution on account of political opinion as a whistleblower because his actions were not shown to be directed at government actors.
- The BIA concluded Duan failed to show an imputed political opinion or a political nexus between his whistleblowing against a general manager and subsequent police actions.
- Because Duan failed to meet the asylum standard, the BIA held he necessarily failed the higher withholding-of-removal standard; the BIA also found he failed to show it was more likely than not he would be tortured if returned to China.
- The Ninth Circuit denied Duan’s petition for review, holding the BIA’s conclusions were supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Duan’s whistleblowing qualifies as political opinion persecutory nexus | Duan: reporting corruption to company officials reflects political opinion and led to persecution | Government: Duan’s actions targeted a private manager, not government actors; no political nexus shown | BIA: No nexus; whistleblowing must be directed at government actors or imputed political opinion must be linked to government conduct; Duan failed to show that link |
| Whether adverse credibility determination required affirmance | Duan: IJ’s credibility finding undermines denial | Govt: BIA did not rely on IJ’s credibility finding and relied on lack of nexus and record facts | Court: BIA did not adopt IJ’s credibility ruling and its decision stands on nexus and other evidence |
| Whether failure to prove asylum dooms withholding claim | Duan: merits withholding separately | Govt: Withholding requires higher showing; failure on asylum forecloses withholding | Held: Failure to meet asylum burden means withholding claim also fails |
| Eligibility for CAT protection based on risk of torture | Duan: he was beaten in detention and faces torture if returned | Govt: Record shows post-release lack of ongoing harm; not more likely than not to be tortured | Held: Substantial evidence supports BIA’s conclusion that Duan did not show it was more likely than not he would be tortured |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (holding persecutory nexus requirement for asylum)
- Lkhagvasuren v. Lynch, 849 F.3d 800 (9th Cir. 2016) (whistleblowing can amount to political activity only when directed at corrupt government officials or imputed opinion is shown)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2014) (requiring a political link between private acts and government persecution for imputed political opinion)
- Mansour v. Ashcroft, 390 F.3d 667 (9th Cir. 2004) (asylum failure precludes withholding relief)