Cha Liang v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 20-3353

_______________

CHA LIANG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF

AMERICA

_______________

On Petition for Review of a Decision of the

Board of Immigration Appeals

(No. A201-123-167)

Immigration Judge: Amit Chugh

_______________

Argued: July 7, 2021

Before: AMBRO, JORDAN, and BIBAS, Circuit Judges.

(Filed: October 12, 2021)

_______________

David Yan [ARGUED]

LAW OFFICES OF DAVID YAN

3606 30th Street, Suite 11E

Long Island City, NY 11106

Counsel for Petitioner

Lance L. Jolley [ARGUED]

Anthony C. Payne

U.S. DEPARTMENT OF JUSTICE

OFFICE OF IMMIGRATION LITIGATION

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_______________

OPINION OF THE COURT

_______________

BIBAS, Circuit Judge.

Divide and conquer is a good military strategy but a bad

judicial one. Judges must consider how related facts weave to-

gether into a narrative.

Chinese officials caught Cha Liang practicing his faith, so

they beat, jailed, and then threatened him. When he sought asy-

lum, the Board of Immigration Appeals minimized the threats

and physical abuse as discrete incidents. But Liang’s twenty-

minute beating and fifteen days in jail made the later threats

2

more menacing. Because the Board should not have ignored

this context, we will grant the petition and remand.

I. BACKGROUND

Liang is from China. In 1997, he learned that his then-

girlfriend (now wife) was expecting their child. But because

they had not yet married, Chinese government officials forced

her to abort their baby. To protest the forced abortion, Liang

met with a local official. A scuffle ensued. It ended when a

security guard slammed a door on his hand, scarring it.

Shattered, Liang found solace in Christianity. He began at-

tending underground church meetings. In 2000, Chinese police

burst into an underground-church meeting and declared it an

illegal religious gathering. They arrested several people, in-

cluding Liang, and brought them to the police station.

At the station, the police abused Liang. They stripped him

down to his underpants. They bent him over and cuffed his

hands behind his back. Then, they beat him. They held him by

his hair and struck him in the face and ears. They pounded his

back and legs. They pummeled him so hard, for twenty

minutes, that he suffers hearing loss to this day. After that, they

locked him in a cold cell, gave him little to eat, and kept him

there for fifteen days.

Before letting Liang go, the police warned him: if we catch

you in church again, we will throw you back in jail. Once out,

Liang kept going to church. But to avoid the police, the group

met less often and constantly changed where it gathered.

3

Almost a decade later, Liang fled to the United States. He

sought asylum, claiming both political persecution (based on

the 1997 scuffle over the forced abortion) and religious perse-

cution (based on the 2000 arrest, beating, jailing, and threats).

At the hearing, the government seemed to concede past perse-

cution. In challenging Liang’s credibility, the government’s

lawyer said he “would certainly not argue that” the 2000 inci-

dent, if true, was not persecution. AR 210. Though the immi-

gration judge found Liang credible, he found that he had not

been persecuted. He did not mention the government’s appar-

ent concession.

The Board of Immigration Appeals affirmed. It noted that

Liang had opposed China’s coercive abortion policy. And it

construed his opposition as a political opinion. But having a

door slammed on his hand, it held, was not severe enough to

count as persecution.

The Board also rejected his religious-persecution claim be-

cause Liang’s ordeals in 2000 were not “sufficiently egre-

gious.” AR 4. It suggested that his mild hearing loss was not

“sufficiently ‘severe.’ ” Id. (quoting Kibinda v. Att’y Gen., 477

F.3d 113, 119–20 (3d Cir. 2007)). It also held that the threat of

rearrest was not “concrete and menacing” enough to count as

persecution because he kept going to church for nine more

years. AR 4 (quoting Herrera-Reyes v. Att’y Gen., 952 F.3d

101, 108 (3d Cir. 2020)).

Finally, the Board held that Liang’s fear of future persecu-

tion was not well-founded. After his 2000 jailing, he had no

more trouble with the authorities. True, Liang submitted five

letters from people in China telling him that if he returned, he

4

would be arrested. But, it found, the letters were identical and

too vague to credit. The Board also denied his claims under the

Convention Against Torture and for withholding of removal.

Liang challenges only the denial of asylum. He argues that

the immigration judge had to accept the government’s conces-

sion of past persecution. In any event, he challenges the

Board’s rulings on past and future persecution.

“[W]e appl[y] de novo review to the question of whether

the [Board] misapprehended the legal methodology we have

prescribed for assessing persecution.” Thayalan v. Att’y Gen.,

997 F.3d 132, 137 n.1 (3d Cir. 2021).

II. THE BOARD’S PAST-PERSECUTION ANALYSIS WAS

FLAWED

The Board held that Liang had suffered neither political nor

religious persecution in China. It was right about political per-

secution, but its reasons for rejecting religious persecution

were flawed. Because that is clear, we need not address Liang’s

argument that the government’s statement was a concession

that should have swayed the immigration judge.

A. Political Persecution

As the Board rightly held, the 1997 door-slamming incident

did not rise to the level of persecution. Liang suffered only a

minor injury to his hand. This “scuffle with the local officials

does not appear to have been serious.” Chen v. Ashcroft, 381

F.3d 221, 235 (3d Cir. 2004).

5

Liang responds that the Board had to consider this experi-

ence together with his later beating and jailing. To be sure, the

agency errs when it considers related mistreatment “in isola-

tion.” Herrera-Reyes, 952 F.3d at 108. But these incidents

were at best tenuously related. In 1997, Chinese authorities

harmed Liang because of his political stance against forced

abortion; in 2000, because of his faith. Neither event relates

enough to the other. So the Board did not need to look at them

together to determine past persecution.

B. Religious Persecution

The Board also rejected his claim of religious persecution.

It considered his beating and jailing together and dismissed that

“single incident” as not “sufficiently egregious.” AR 4. Then,

it moved to the threats, which it found not “concrete and men-

acing” enough. Id. After all, the Board stressed, they failed to

deter Liang from practicing his faith.

The Board’s reasoning, though, ignores the context of the

threats. Government officials threatened to jail Liang if he

went to church again. He had good reason to take the threat

seriously, as he had just been jailed and beaten. A “threat [can

be] made concrete by the violent context in which it occurred.”

Herrera-Reyes, 952 F.3d at 108. By ignoring that context, the

Board failed to “examine incidents of alleged past persecution

… cumulatively.” Thayalan, 997 F.3d at 137 n.1.

True, the Board purported to consider the episodes “cumu-

latively.” AR 4. But “[a] cursory invocation of the word ‘cu-

mulative’ is insufficient.” Herrera-Reyes, 952 F.3d at 109.

Here, the opinion shows that the Board did not do what it said

6

it did. It analyzed the threat separately from the beating and

jailing and did not consider how the preceding violence put

steel into the threat.

On remand, the agency must consider the threats in light of

the earlier abuse. Id. Then, it must decide whether the “aggre-

gate effect” of the beating, jailing, and threats “pose[d] a ‘se-

vere affront[ ] to [Liang’s] life or freedom.’ ” Id. at 110 (quot-

ing Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 341 (3d Cir.

2008)). If the Board holds that the beating, jailing, and threats

together count as past persecution, it must presume that Liang

will face future persecution if he returns. 8 C.F.R. § 208.13.

Then it will have to consider whether the evidence rebuts that

presumption.

* * * * *

We do not say whether Liang ultimately suffered past reli-

gious persecution or has a well-founded fear of future persecu-

tion. But it is not enough for the Board to reach a particular

destination. It must also take the right path to get there. By not

considering religious persecution cumulatively, it “misappre-

hend[ed] applicable law.” Thayalan, 997 F.3d at 137 n.1. So

we will grant the petition and remand.

7

JORDAN, Circuit Judge, with whom AMBRO, Circuit

Judge, joins, concurring.

While I fully concur in the opinion we issue today, I

write separately to highlight one important point that bears on

our standard of review and should not be obscured by our

various formulations of the standard over the years: Past

persecution is a mixed question of law and fact.1 That is

because the determination of “past persecution” involves two

distinct questions, either or both of which may be disputed in a

given case. The question of what events occurred or may occur

“is factual in nature and is subject to clearly erroneous review

by the BIA” and substantial evidence review by this Court;

while the question of “whether those events meet the legal

definition of persecution [] is reviewed de novo because it is

plainly an issue of law.” Huang v. Att’y Gen., 620 F.3d 372,

379, 383 (3d Cir. 2010). As the Supreme Court has repeatedly

– and, again, just recently – described, we approach a question

“which has both factual and legal elements, as a mixed

1

Quoting our recent decision in Thayalan v. Att’y Gen.,

997 F.3d 132 (3d Cir. 2021), the lead opinion today frames the

standard of review as follows: “[W]e appl[y] de novo review

to the question of whether the [Board] misapprehended the

legal methodology we have prescribed for assessing

persecution.” Maj. op. at 5 (quoting Thayalan, 997 F.3d at 137

n.1). I agree with that sentence, but, as described herein, I have

concerns that Thayalan can be misread. To the extent the

opinion in that case can be understood to hold that past

persecution is a pure question of fact or that a misapprehension

of law by the BIA is a prerequisite to assessing de novo

whether the facts in a given case amount to persecution, I

believe it to be contrary to preexisting precedent.

1

question of law and fact,” while we treat “the application of a

legal standard to undisputed or established facts” as a question

of law. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069

(2020) (quotation omitted). In keeping with that instruction,

we should be more consistent in acknowledging that past

persecution is a mixed question and more explicit in

identifying which component, factual or legal, is under review.

That breakdown of the two components is critical if we

are to apply the proper standard of review. Just last term, the

Supreme Court emphasized that “a reviewing court should try

to break [] a [mixed] question into its separate factual and legal

parts, reviewing each according to the appropriate legal

standard.” Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183,

1199 (2021). “[W]hen a question can be reduced no further,”

we determine in the context of the particular case whether

answering the question “entails primarily legal or factual

work” and then apply the corresponding standard of review.

Id. (quoting U.S. Bank N.A. ex rel. CWCapital Asset Mgmt.

LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018)).

And when it comes to the determination of past persecution,

the factual and legal parts are separate and distinct.

That past persecution involves two separate inquiries is

highlighted by the division of labor within the Department of

Justice. When deciding whether an applicant has previously

experienced persecution, the Department, acting through

Immigration Judges and the Board of Immigration Appeals,

first determines what happened (which is the fact question) and

then whether that event or sequence of events meets the legal

definition for persecution (which is the legal question). It

assigns responsibility for answering both the factual and legal

aspects of the mixed question to Immigration Judges, while

2

confining the Board of Immigration Appeals to deciding

whether the facts as found by an Immigration Judge justify a

particular legal conclusion about persecution. See Z-Z-O-, 26

I. & N. Dec. 586, 590-91 (B.I.A. 2015) (“[W]hether an asylum

applicant has established an objectively reasonable fear of

persecution based on the events that the Immigration Judge

found may occur upon the applicant’s return to the country of

removal is a legal determination that remains subject to de

novo review.”).

That mode of analysis guides us in analyzing other

mixed questions in immigration law as well. For example,

when assessing whether a petitioner invoking the Convention

Against Torture is entitled to relief, we must determine

whether the petitioner has shown a likelihood of facing torture.

That, too, we have said, is a “mixed question” with “two

distinct parts … : (1) what is likely to happen to the petitioner

if removed; and (2) does what is likely to happen amount to the

legal definition of torture? … The first question is factual. …

The second question, however, is a legal question.” Kaplun v.

Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010).2 And, again, that

2

We have since steadfastly followed the Kaplun test.

See, e.g., Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017);

Green v. Att’y Gen., 694 F.3d 503, 507 (3d Cir. 2012); Roye v.

Att’y Gen., 693 F.3d 333, 338 (3d Cir. 2012); Kang v. Att’y

Gen., 611 F.3d 157, 164 (3d Cir. 2010). Other Courts of

Appeals also treat the question of whether mistreatment

satisfies the legal definition of torture as a mixed question of

fact and law. See, e.g., Ridore v. Holder, 696 F.3d 907, 915-

16 (9th Cir. 2012); Turkson v. Holder, 667 F.3d 523, 530 (4th

Cir. 2012); Gourdet v. Holder, 587 F.3d 1, 5 (1st Cir. 2009);

3

distinction is one the Supreme Court has recently reinforced.

See Nasrallah v. Barr, 140 S. Ct. 1683, 1693 (2020)

(distinguishing between the “factual components” of CAT

orders and the legal components).

We should bring that same analytical clarity to the

question of past persecution when we consider a BIA order

deciding an application for asylum. Unfortunately, in that

context we have let ambiguity creep into our case law, and it

has led to confusion about our standard for review.

It is not that we have always been unclear. On at least

two occasions, we have stated unequivocally that persecution

presents a mixed question of law and fact. See Herrera-Reyes

v. Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020) (“Neither party

disputes the facts underlying Petitioner’s past-persecution

claim. So we will review the BIA’s application of our past-

persecution standard to those facts de novo.”); Huang, 620

F.3d at 382-83 (drawing expressly on the Kaplun test to hold

that the question of “whether an alien possesses a well-founded

fear of persecution,” like the question of whether “what [the

alien] is likely to suffer amounts to torture,” is “a mixed

question of fact and law … that requires application of a legal

standard to a particular set of circumstances”).3

Jean-Pierre v. Att’y Gen., 500 F.3d 1315, 1316-17 (11th Cir.

2007).

3

Several of our sister circuits also treat persecution as a

mixed question. See Zhou Hua Zhu v. Att’y Gen., 703 F.3d

1303, 1311-12 (11th Cir. 2013); Ramdan v. Gonzales, 479 F.3d

646, 648 (9th Cir. 2007); Mirzoyan v. Gonzales, 457 F.3d 217,

4

Those clear holdings, however, are sometimes

misunderstood because of shorthand articulations of the

standard that we have given elsewhere. For example, in Voci

v. Gonzales, 409 F.3d 607 (3d Cir. 2005), we said, “[w]hether

an asylum applicant has demonstrated past persecution or a

well-founded fear of future persecution is a factual

determination reviewed under the substantial evidence

standard.” Id. at 613. But even then, we followed the two-step

analytical path described above, for we observed that, “[w]hile

this Court has not yet drawn a precise line concerning where a

simple beating ends and persecution begins, our cases suggest

that isolated incidents that do not result in serious injury do not

rise to the level of persecution.” Id. at 615. That was an

acknowledgement that, when judging a claim of past

persecution, we are applying a legal standard to a set of facts.

The two-step analysis regularly features in our case law.

See, e.g., Doe v. Att’y Gen., 956 F.3d 135, 146 (3d Cir. 2020)

(“In short, because the IJ and the BIA accepted Petitioner’s

testimony as true but then proceeded to misstate and ignore

certain relevant aspects of that testimony, and because they

committed legal error by finding that a single beating without

severe physical injury to Petitioner was dispositive, their

220 (2d Cir. 2006); Asani v. INS, 154 F.3d 719, 723 (7th Cir.

1998). Those circuits that do not state a standard of review or

have called it a fact question are still in practice applying a

legal definition to a set of facts. See, e.g., Arita-Deras v.

Wilkinson, 990 F.3d 350, 359 (4th Cir. 2021) (“We repeatedly

have held that death threats qualify as persecution. . . . Thus,

the Board committed legal error in concluding that Arita-Deras

had not established past persecution.”).

5

determination that his experience did not rise to the level of

past persecution must be overturned.” (internal quotation

marks and citation omitted)); Kibinda v. Att’y Gen., 477 F.3d

113, 120 (3d Cir. 2007) (“While we do not mean to suggest

that the severity of an injury should be measured in stitches,

Kibinda has provided no other objective evidence to

demonstrate that the single injury he suffered was severe

enough to constitute persecution under our stringent

standard.”); Chavarria v. Gonzalez, 446 F.3d 508, 520 (3d Cir.

2006) (“[T]he second threat experienced by Chavarria rises to

the level of past persecution because it was both highly

imminent, concrete and menacing and Chavarria suffered harm

from it.”).

So it should be apparent that persecution is not purely a

question of fact. Nevertheless, we continue at times to create

tension in our precedents with imprecise statements of our

standard of review. For example, we recently said in Thayalan

v. Att’y Gen., 997 F.3d 132 (3d Cir. 2021), that past persecution

is a question of fact subject to review for substantial evidence.

Id. at 137. Then, in a well-intended effort to acknowledge that

persecution is actually a mixed question of law and fact, but

with language that might be taken (wrongly) as undercutting

our perfectly clear statement in Herrara-Reyes, we said:

In Herrera-Reyes, we applied de novo review to

the question of whether the BIA misapprehended

the legal methodology we have prescribed for

assessing persecution. We concluded that it was

legal error for the agency to examine incidents of

alleged past persecution in isolation from each

other rather than cumulatively and to restrict

qualifying harm to that inflicted on the petitioner

6

herself, excluding harm to family members or

close associates. In contrast, where the agency

does not misapprehend applicable law, we apply

the substantial-evidence standard to an agency

determination that an alien did not suffer harm

rising to the level of persecution even where the

underlying facts about how an alien was

mistreated are undisputed. We do so because the

question of whether a particular fact pattern rises

to the level of persecution is largely fact-driven.

Id. at 137 n.1 (internal quotation marks and citation omitted).

The question of past persecution is indeed largely fact-

driven, in the sense that there is always a factual component to

the question, although not always a factual dispute. But being

“largely” something is not the same as being “entirely”

something. And, when determining our standard of review,

there is certainly no novel “misapprehension of law” element

that we must find in the BIA’s decision before we can review

“the application of law to undisputed or established facts” for

what it is: a “question of law.” Guerrero-Lasprilla, 140 S. Ct.

at 1069.

The two-step analysis for judging past persecution is

straightforward, at least in concept, if not always in practice.

Our precedent and that of the Supreme Court require us to

address past persecution as a mixed question of law and fact,

reviewing “its separate factual and legal parts, … each

according to the appropriate legal standard[,]” Google LLC,

141 S. Ct. at 1199, even when we have occasionally been less

than precise in framing the procedure as such. It is time we

were clearer and more consistent on this important point.

7