                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 6 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

BIN FENG,                                       No.    14-71596

                Petitioner,                     Agency No. A088-277-502

 v.
                                                MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                    Argued and Submitted September 11, 2017
                            San Francisco, California

Before: GOULD and WATFORD, Circuit Judges, and SANDS,** District Judge.

      Bin Feng (“Feng”) petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of his applications for asylum and withholding of

removal. We have jurisdiction under 8 U.S.C. § 1252. We review denials of

asylum, withholding of removal, and relief under the Convention Against Torture


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable W. Louis Sands, United States District Judge for the
Middle District of Georgia, sitting by designation.
for substantial evidence and will uphold a denial supported by reasonable,

substantial, and probative evidence on the record considered as a whole. Silva-

Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016). We grant the petition in

part and remand to the BIA for further proceedings.

      Feng, a citizen of the People’s Republic of China, seeks asylum and

withholding of removal based on his anticorruption political opinion. Feng submits

that he spoke out against an embezzlement scheme involving the local government

and as a result was persecuted by the police.

      Feng worked as a toll booth cashier at a state-owned company. Feng was

approached by his immediate supervisor who attempted to enlist Feng to

participate in the embezzlement scheme. Feng refused to participate and reported

the scheme to the highway superintendent, a local government official. Feng was

subsequently fired and when nothing was done regarding the embezzlement

scheme, Feng confronted the superintendent. The superintendent accused Feng of

being responsible for the scheme and warned that Feng should leave his office.

When Feng refused to leave the superintendent’s office, the superintendent

informed Feng that he would call the police. Feng did not leave. The

superintendent contacted the police and falsely accused Feng of participating in the

embezzlement scheme and physically attacking him. The police arrested Feng,

detained him for days, interrogated him about the embezzlement scheme, and beat


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him until he confessed to the alleged offenses.

       Substantial evidence supports the BIA’s decision that Feng failed to

establish that his political opinion was “at least one central reason” for his

persecution. Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015). In

applying the three factor test articulated in Matter of N- M-, 25 I. & N. Dec. 526

(BIA 2011), the immigration judge (“IJ”) found that Feng provided no evidence,

direct or circumstantial, establishing that his persecutors were motivated by his

political beliefs.

       In effect, the IJ found that Feng failed to show the necessary nexus between

his speech against corruption and the persecution he endured at the hands of the

police. Feng argues that the police, who inflicted the physical harm against him,

did not need to be aware of his political opinion or the underlying embezzlement

scheme. In special cases, it may be possible for a petitioner to establish a nexus

without showing the persecutors’ knowledge of petitioner’s protected trait such as

where a persecutor directs another to commit an attack against petitioner. Here,

however, Feng has not shown that his anticorruption political belief was a cause of

the attack by the police. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir.

2009) (“[T]o demonstrate that a protected ground was ‘at least one central reason’

for persecution, an applicant must prove that such ground was a cause of the

persecutors’ acts.”).


                                           3                                     14-71596
      Feng provided no evidence that the police were aware of his anticorruption

beliefs, or that the police were acting at the behest of the superintendent in an

attempt to silence Feng, or that the police had beaten Feng as a consequence of

Feng “raising his head” against the superintendent. See Baghdasaryan v. Holder,

592 F.3d 1018, 1025–26 (9th Cir. 2010). Feng failed to show how the harm he

experienced by the police was causally connected specifically to his political

beliefs as opposed to the allegations that he participated in the scheme and

assaulted the superintendent. Therefore, the BIA did not err in denying Feng’s

claim for asylum and we find the BIA’s decision is supported by the record and

substantial evidence in this case.

      However, we find the BIA erred as a matter of law in denying Feng’s claim

for withholding. The IJ applied the “one central reason” standard applicable to

asylum claims to Petitioner’s claim for withholding. The Government argues that

the court’s holding in Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) only

applies to “mixed-motive cases.” In Barajas-Romero, we held that the proper legal

standard for a withholding claim is “a reason.” Id. at 365. There, we reasoned since

Congress adopted the “one central reason” standard for asylum but not for

withholding, even after amending the withholding statute, Congress’ choice was

deliberate. Id. at 358. The court specifically stated the lack of adoption “indicates

that Congress did not intend for the ‘one central reason’ standard to apply to


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withholding of removal claims.” Id. at 358–59.

      The Government also relies on Zetino v. Holder, 622 F.3d 1007 (9th Cir.

2010) for its proposition that Barajas-Romero only applies to mixed-motive cases.

However, the Government’s reliance is unfounded. While the court applied the one

central reason standard to a withholding claim in Zetino, the court distinguished the

Zetino decision in Barajas-Romero. In Barajas-Romero, the court specifically

stated that Zetino did not hold that the “one central reason” standard applied to

withholding as well as asylum cases. Barajas-Romero, 846 F.3d at 359. The court

further stated that “[w]e drew no distinction between the ‘one central standard’

phrase in the asylum statute and the ‘a reason’ phrase in the withholding statute,

because there was no nexus at all between the feared persecution and political

opinion.” Id. at 360. Accordingly, the proper legal standard in withholding claims

is “a reason” and the BIA erred when it applied the “one central reason” standard

to Feng’s application for withholding of removal.

      We deny the petition as to the asylum claim, and grant the petition as to the

withholding of removal claim and remand. The BIA is directed to reconsider and

apply the “a reason” standard to Feng’s claim for withholding consistent with our

disposition.

      GRANTED in part, DENIED in part, and REMANDED.

      Each party shall bear its own costs.


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