                                                                           FILED
                             NOT FOR PUBLICATION                            APR 12 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



WENHUI DONG,                                     No. 08-71855

               Petitioner,                       Agency No. A099-398-836

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

               Respondent.



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

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Wenhui Dong, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s (“IJ”) decision denying his application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”). We have jurisdiction


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252. We review for substantial evidence. Zehatye v. Gonzales,

453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and grant in part the

petition for review, and we remand.

      Substantial evidence does not support the IJ’s adverse credibility

determination because the IJ’s finding that Dong conceded the identification

number on his college massage certificate was fraudulent ignores Dong’s

testimony that he did not know why the college identification number was given to

him that way. See Paramasamy v. Ashcroft, 295 F.3d 1047, 1052-54 (9th Cir.

2002) (rejecting the BIA’s reliance on “perceived inconsistencies not based on the

evidence”). Moreover, the IJ engaged in impermissible speculation regarding

whether the college Dong attended uses the national identification number as the

student identification number, what documents are required to register for medical

school, and how difficult it would be to register for medical school using a false

date of birth. See Li v. Holder, 559 F.3d 1096, 1103-07 (9th Cir. 2009); Guo v.

Ashcroft, 361 F.3d 1194, 1200 (9th Cir. 2004) (“[U]nclear testimony may not serve

as substantial evidence for an adverse credibility finding when an applicant is not

given the chance to attempt to clarify his or her testimony.”).

      Accepting Dong’s testimony as credible, the record does not compel the

conclusion that Dong’s job loss and the imposition of a fine to register his daughter


                                           2                                   08-71855
in his household rise to the level of persecution or demonstrate a well-founded fear

of persecution on account of his violation of China’s family planning policy. See

Gormley v. Ashcroft, 364 F.3d 1172, 1178-80 (9th Cir. 2004) (“[M]ere economic

disadvantage alone does not rise to the level of persecution.”).

      The record does compel the conclusion Dong suffered past persecution on

account of his religion when he was arrested during a seven-day detention, he was

kicked to the ground and then beaten with a rubber baton and kicked until he

almost lost consciousness, and he was forced to sign a letter agreeing not to

participate in any more illegal religious meetings and to submit to supervision

upon request. See Guo, 361 F.3d at 1197, 1203 (finding of persecution compelled

where petitioner was detained for a day and a half, punched in the face twice,

kicked while he lay on the floor, and forced to sign an affidavit promising not to

believe in an “evil religion” again).

      Because Dong established past persecution, he is entitled to a presumption

that he has a well-founded fear of future persecution on the basis of his religion.

See Ahmed v. Keisler, 504 F.3d 1183, 1197 (9th Cir. 2007). We remand for the

agency to decide in the first instance whether the government has met its burden to

rebut this presumption. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per

curiam).


                                           3                                     08-71855
      Substantial evidence supports the agency’s denial of CAT relief because

Dong failed to establish it is more likely than not he will be tortured if returned to

China. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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