                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 23 2014

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

JINSUO GONG,                                     No. 10-73576

              Petitioner,                        Agency No. A097-859-317

  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 June 4, 2014
                              Pasadena, California

Before: REINHARDT, NOONAN, and MURGUIA, Circuit Judges.

       Petitioner Jinsuo Gong petitions for review of a final order of removal of the

Board of Immigration Appeals (BIA). We have jurisdiction under 8 U.S.C.

§ 1252, and we grant the petition.

       Gong seeks asylum, withholding of removal, and relief under the

Convention Against Torture (CAT) on the basis that he fears persecution for trying


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to prevent the local government in China from appropriating his land without

providing fair compensation. An immigration judge (IJ) denied relief, and the BIA

dismissed Gong’s appeal, finding that (1) Gong had established no nexus between

the harm he suffered and any protected ground, and (2) even if a presumption of a

well-founded fear of future persecution had arisen, the Government had rebutted

that presumption by establishing a fundamental change in country circumstances.

      We review the BIA’s findings for substantial evidence. See Kamalyan v.

Holder, 620 F.3d 1054, 1057-58 (9th Cir. 2010); Navas v. INS, 217 F.3d 646, 661

(9th Cir. 2000). Because the BIA assumed that Gong’s testimony was credible, we

do the same. See Barraza Rivera v. INS, 913 F.2d 1443, 1450 (9th Cir. 1990).

      Substantial evidence does not support the BIA’s determination that there

was no nexus between the harm Gong endured and an imputed political opinion.

When Gong was arrested for interfering with the government’s exercise of eminent

domain, local police beat him to the point of unconsciousness after asking why he

opposed and made trouble for the local government. In other words, the police

imputed to Gong a political opinion when they believed he sought to challenge the

local government. Cf. Baghdasaryan v. Holder, 592 F.3d 1018, 1021, 1024, 1026

(9th Cir. 2010) (concluding that petitioner suffered harm due to his political

opinion when militia beat him and accused him of “defaming” and “raising his


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head” against a corrupt general); see also Li v. Holder, 559 F.3d 1096, 1109 (9th

Cir. 2009) (observing that “disproportionately severe punishment” can transform

an ordinary prosecution into persecution (internal quotation marks omitted)).

Further, the record offers no reason other than the imputed political opinion for the

police beating, as opposed to the arrest. See Sangha v. INS, 103 F.3d 1482, 1490

(9th Cir. 1997) (noting that harm is “on account of” a political opinion when

persecutors announce as much or “when there is no other logical reason for the

persecution”). The same is true for the beating Gong endured at the hands of the

six unidentified assailants, who threatened and attacked him after he tried to report

his situation to a higher level of government. Accordingly, the record compels the

conclusion that Gong was harmed on account of an imputed political opinion. See

id.

      In addition, none of the reasons given by the BIA for finding a fundamental

change in circumstances, standing alone or taken together, supports its

determination that any presumption of a well-founded fear of persecution has been

rebutted. For example, the BIA took into account the fact that the transaction–the

transfer of Gong’s property to the Chinese government in exchange for money–had

been completed, but the completion of the transaction predated the attack on Gong

by the unidentified assailants and thus cannot support a finding of a fundamental


                                          3
change in circumstances. As another example, the BIA noted that Gong had been

able to return to China for six weeks and “reside openly.” However, Gong testified

that his return trip was clandestine, and nothing in the record supports the BIA’s

finding to the contrary. Similarly, no evidence in the record supports the BIA’s

observation that Gong’s children had remained in China without suffering harm.

The remaining considerations–primarily that Gong was able to travel using a

passport issued to him by the Chinese government–are insufficient to constitute

substantial evidence to support a finding of a fundamental change in

circumstances. See Mamouzian v. Ashcroft, 390 F.3d 1129, 1137 (9th Cir. 2004)

(“A petitioner’s ability to escape her persecutors does not undermine her claim of a

well-founded fear of future persecution, even when she succeeds in obtaining

government documents that permit her to depart.”).

      We therefore grant the petition for review, so that the BIA may address other

issues pertinent to whether Gong is eligible for asylum, withholding of removal, or

protection under the CAT, including but not limited to Gong’s credibility and




                                          4
whether the harm he suffered on account of an imputed political opinion rose to the

level of persecution.1

      PETITION GRANTED.




      1
         Gong also contends that the transcript from the hearing before the IJ is
deficient. His challenge is best framed as a due process claim that the inadequacy
of the transcript precluded an informed review of the IJ’s decision by the BIA and
precludes an informed review of the BIA’s decision by this Court. See Singh v.
Ashcroft, 367 F.3d 1139, 1143-44 (9th Cir. 2004) (recognizing potential due
process claim for inadequate transcription). However, a due process claim
regarding a procedural error must be exhausted before it can be presented to this
Court. See 8 U.S.C. § 1252(d)(1). Gong did not exhaust his due process claim, and
thus we lack jurisdiction to consider it. See Singh, 367 F.3d at 1143 n.1.

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