                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


YI DUAN,                                         No.     12-74073

              Petitioner,                        Agency No. A088-481-573

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

              Respondent.


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

                             Submitted April 4, 2017**
                               Pasadena, California

Before: WARDLAW and CALLAHAN, Circuit Judges, and KENDALL,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
      Yi Duan, a native of China, petitions for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s

decision denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). The BIA held that

Duan failed to establish that he was persecuted and had a well-founded fear of

persecution on account of his political opinion as a whistleblower of government

corruption. Because Duan did not establish the requisite nexus, the BIA did not

reach or adopt the IJ’s adverse credibility finding. The BIA also held that because

Duan did not meet the lower burden for asylum, he necessarily did not meet the

higher burden for withholding of removal. Further, the BIA affirmed the IJ’s

finding that Duan did not establish eligibility for protection under CAT because he

did not show that he is “more likely than not” to be tortured if returned to China.

We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.1

      1.     The BIA’s findings are “conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Whistleblowing “may constitute

political activity sufficient to form the basis of persecution where petitioner[]



      1
             Because the parties are familiar with the facts and procedural history
we do not restate them here except as necessary to explain our decision.
                                           2
whistle blew against corrupt government officials and he was targeted for

persecution on account of that political opinion, whether actual or imputed.”

Lkhagvasuren v. Lynch, 849 F.3d 800, 802 (9th Cir. 2016) (per curiam) (internal

quotation marks and citations omitted). Duan has not shown that his actions were

directed towards government actors. Id. Duan failed to establish an imputed

political opinion because he failed to demonstrate a political link between his

actions against the general manager and the police actions against him. See

Garcia-Milian v. Holder, 755 F.3d 1026, 1031–34 (9th Cir. 2014). Thus, Duan

failed to make the compelling showing necessary for relief.

       2.     An alien who is unable to meet the burden of proof for asylum

necessarily fails to meet the more stringent standard for withholding of removal.

Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004). Because Duan failed to

meet the lower burden of proof for asylum, his claim for withholding of removal

necessarily fails.

       3.     Pursuant to Article III of CAT, an applicant bears the burden of

establishing that “it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(1)–(2).

Although Duan testified that he was twice beaten to the point of unconsciousness




                                           3
during a 15-day detention2, the record evidence cuts against a finding of past

torture. During the six months after his release from police custody and before he

left China, Duan was not harmed any of the nine times he reported to the police

station or when he failed to report every week as required. Thus, Duan has not

shown it is more likely than not that the police would pursue him for the purpose

of torture if he returned to China. Therefore, substantial evidence supports the

finding that Duan is not eligible for CAT relief.

      The petition for review is DENIED.




      2
            Although the IJ made an adverse credibility finding, the BIA, whose
opinion we review, did not.
                                          4
