                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 25 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
XIAO GUO,                                        No. 14-71868

              Petitioner,                        Agency No. A088-335-868

 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 August 28, 2017
                              Pasadena, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: W. FLETCHER and IKUTA, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.

      Petitioner Xiaoping Guo, a Christian and native and citizen of the People’s

Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”)

order dismissing his appeal from an immigration judge’s decision denying his

applications for asylum, 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. §

1231(b)(3), and protection under the Convention Against Torture (“CAT”), 8 C.F.R.

§§ 1208.16(c), 1208.18(a). We have jurisdiction under 8 U.S.C. § 1252. We deny the

petition with respect to the BIA’s denial of eligibility for asylum and the denial of

protection under CAT. We grant the petition with respect to the denial of withholding

of removal, and we remand in light of the new standard announced in the intervening

case of Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017).

      We conclude substantial evidence supports the Immigration Judge’s (“IJ”)

factual findings denying Guo’s asylum application, namely that he failed to establish

he was persecuted, or had a well-founded fear of persecution, on account of religion,

anti-government political opinion regarding the new cremation law, or any other

protected ground. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014).

The facts are undisputed that: (1) Guo did not know why he was arrested, detained and


      **
              The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
                                          2
beaten; (2) police arrested only people who fiercely resisted the lawful police

authority in removing the decedent’s body; (3) none of the other Christians attending

the burial were arrested; and (4) Guo’s mother remains unharmed in their native

country, despite her continued Christian practice in a home church. Thus, substantial

evidence supports the IJ’s conclusion that resistance to police authority was the central

reason for Guo’s arrest, detention, beating and fine, and that neither religion nor

political opinion was a central reason for the treatment to which Guo was subjected.

      There is, however, evidence in the record that could support a conclusion that

religion or political opinion was “a reason” for Guo’s treatment by the authorities.

Our decision in Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017), came down

after the BIA reached its decision in this case. We held in Barajas-Romero that

eligibility for withholding of removal, as distinct from eligibility for asylum, requires

only that a forbidden ground such as religion be “a reason” for the official action at

issue. The IJ and the BIA appear to have applied the criterion of “a central reason”

rather than “a reason” to Guo’s claim for withholding of removal. We therefore grant

and remand Guo’s petition for review with respect to the BIA’s denial of withholding

of removal in order to permit the agency to apply the proper standard as articulated

in Barajas-Romero.




                                           3
      Next, we turn to Guo’s claim under CAT. Guo contends that his ill treatment

by Chinese authorities amounted to torture within the meaning of CAT, and that he

is likely to be subjected to torture if he is returned to China. Guo’s ill treatment did

not rise to the level of cruel and inhumane treatment required to satisfy the standard

under CAT, and he has failed to establish that it is more likely than not that he will be

tortured if he is returned to China.

      We therefore deny Guo’s petition with respect to his claims for asylum and for

relief under CAT. We grant his petition and remand to the BIA for reconsideration

of his claim for withholding of removal. We award costs to petitioner on the petition

for review.

PETITION FOR REVIEW DENIED IN PART, GRANTED IN PART, AND

REMANDED.




                                           4
                                                                              FILED
Guo v. Sessions, No. 14-71868
                                                                               SEP 25 2017
Ikuta, Circuit Judge, concurring in part and dissenting in part:
                                                                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
      I concur with the majority’s denial of the petition as to asylum and

protection under the Convention Against Torture, but dissent from the majority’s

remand as to withholding of removal. In Barajas-Romero v. Lynch, we recognized

that any distinction between “one central reason” in the asylum statute and “a

reason” in the withholding statute was inconsequential if “there was no nexus at all

between the feared persecution and [a protected ground].” 846 F.3d 351, 360 (9th

Cir. 2017) (discussing Zetino v. Holder, 622 F.3d 1007, 1015–16 (9th Cir. 2010)).

In this case, the BIA concluded that Guo had not established any nexus between

either his Christianity or imputed political opinion and his claim that he would

“more likely than not” suffer future persecution. 8 C.F.R. § 208.16(b)(2).

Substantial evidence supports this conclusion. Accordingly, I would deny the

petition as to withholding of removal.
