                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 06 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


XUEGANG WANG,                                    No. 09-73415

              Petitioner,                        Agency No. A097-857-918

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted December 3, 2013
                              Pasadena, California

Before: SCHROEDER, NOONAN, and CLIFTON, Circuit Judges.

       Xuegang Wang, a native and citizen of the People’s Republic of China,

appeals the decision of the Board of Immigration Appeals (“BIA”) denying his

application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). Because Wang filed his application prior to

May 11, 2005, the REAL ID Act does not govern this case. Joseph v. Holder, 600


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
F.3d 1235, 1240 n.3 (9th Cir. 2010). We have jurisdiction under 8 U.S.C. § 1252.

The BIA’s factual findings are reviewed for substantial evidence, while questions

of law are reviewed de novo. Zhang v. Gonzales, 408 F.3d 1239, 1244 (9th Cir.

2005). We grant Wang’s petition in part, deny it in part, and remand it to the BIA

for review.

      Substantial evidence does not support the BIA’s finding that Wang has

failed to establish a nexus between the harm he suffered and the protected ground

of political opinion. To the contrary, the record compels the conclusion that the

police imputed pro-Western and pro-labor political opinions to Wang, and that he

was harmed at least in part because of those imputed beliefs. See Hu v. Holder,

652 F.3d 1011, 1016-20 (9th Cir. 2011). The police forcibly arrested Wang

outside the municipal government building after identifying him as “leading” the

workers’ protest. Wang was then interrogated, accused of spreading Western

ideology and inciting workers to protest, beaten unconscious, and held captive for

ten days until he agreed in writing not to “organize workers anymore” or “spread

Western thoughts such as democracy, freedom and human rights.” After his

release, the police continued to ask Wang at his weekly reporting sessions if he

planned to “organize[] any workers,” threatening to throw him in jail if he did.




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      On these facts, as in Hu, we conclude that Wang has established the nexus

requirement and remand for the BIA to determine whether Wang’s past

mistreatment rises to the level of persecution such that his application for asylum

and withholding of removal may be granted. See Hu, 652 F.3d at 1020.

      We deny Wang’s petition as to his CAT claim because he has failed to show

that it is more likely than not that he would be tortured if he were removed to

China. See 8 C.F.R. § 1208.16(c)(2).

      PETITION FOR REVIEW GRANTED in part; DENIED in part;

REMANDED.

      Each party shall bear its own costs.




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                                                                               FILED
09-73415, Wang v Holder                                                        JAN 06 2014

                                                                           MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting:                                          U.S. COURT OF APPEALS



      I respectfully dissent. Even accepting Wang’s factual testimony as true, the

evidence does not compel the conclusion that Wang suffered persecution on

account of a political opinion.

      Wang led a workers’ protest at a municipal government building. The

workers protested for two hours, after which representatives of the government

came out and took their letters. The representatives told Wang that they would

notify Wang’s company of their decision, and that they should go back home and

not block the way. Wang did not claim to have suffered any harm, let alone

persecution, at or following that protest. Less than ten days later, Wang led

another protest at the municipal building. This time, the protesters blocked the

door of the government building and the road. Wang told the government

representatives that the protesters would not leave until they got a response. Six

hours later, the police told the protesters that their protest was illegal and that they

were disturbing the peace, giving them five minutes to leave. While trying to

disperse the protesters, the police arrested Wang because he was the leader of the

group. Wang’s purported political opinions had not changed, but he was not

arrested after the first protest, only after he led a group blocking the building. That

was a normal law enforcement response, not compelling proof of political
persecution.

      At the police station, Wang was asked to admit to spreading “Western

thoughts such as democracy, human rights, and freedom,” but the police did not

physically coerce him to confess. Nor was he beaten after explaining the workers’

position and accusing the company of being irresponsible. The physical abuse did

not start until Wang insulted the officers by accusing them of being “cold blooded

animals” just like the head of the company.

      The record does not compel the conclusion that Wang was harmed because

the police imputed a political opinion to him. Rather, the record shows that Wang

was not arrested after the first protest but only after leading a group that blocked

the government building, which the protesters had been told not to do. Similarly,

he was not physically assaulted after expressing his pro-democracy political

opinions, but only after he directly and personally insulted the police officers. The

evidence did not compel a conclusion contrary to that reached by the BIA. Under

the deferential standard of review that should apply, the petition for review should

be denied.




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