Shuqiang Tian v. Bondi

22-6053
Shuqiang Tian v. Bondi
United States Court of Appeals 1
For the Second Circuit 2
3
4
August Term 2024 5
6
Submitted: November 27, 2024 7
Decided: March 5, 2025 8
9
No. 22-6053 10
11
12
S HUQIANG TIAN, 13
14
15
Petitioner, 16
17
v. 18
19
PAMELA B ONDI ,* UNITED S TATES ATTORNEY GENERAL , 20
21
Respondent. 22
23
24
Appeal from the Board of Immigration Appeals 25
In re Shuqiang Tian, No. A208-092-081 26
(B.I.A. Jan. 6, 2022) 27
28
Before: C ALABRESI, MERRIAM, Circuit Judges, and RAKOFF , District Judge. ** 29
* The Clerk of the Court is directed to substitute Attorney General Bondi for the named
respondent, former Attorney General Merrick Garland, pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
** Judge Jed S. Rakoff, United States District Judge for the Southern District of New
York, sitting by designation.

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Petitioner Shuqiang Tian (“Tian”), a native and citizen of the People’s 1
Republic of China (“China”), seeks review of a January 6, 2022, decision of the 2
Board of Immigration Appeals (the “Board” or “BIA”), affirming and adopting an 3
April 19, 2019, order of an Immigration Judge (“IJ”) denying Tian’s claims for 4
asylum, withholding of removal, and protection under the regulations 5
implementing the Convention Against Torture (“CAT”). The IJ and BIA 6
(collectively, the “agency”) denied Tian’s claims for asylum and statutory 7
withholding of removal because Tian failed to show that the harm he suffered or 8
feared was because of his political opinion. As for the CAT claim, the agency 9
summarily concluded that the evidence did not establish that it is more likely than 10
not that Tian would be tortured with the acquiescence of the government if 11
removed to China. We GRANT the petition, VACATE the decision of the BIA, and 12
REMAND the case for reconsideration of Tian’s claims because the agency failed 13
to consider material evidence bearing on Tian’s claims for asylum and 14
withholding of removal and failed to state meaningful reasons for its denial of 15
Tian’s CAT claim. 16
17
Troy Nader Moslemi Esq., Flushing, NY, for Petitioner. 18
19
Brian Boynton, Principal Deputy Assistant Attorney 20
General; Jessica E. Burns, Senior Litigation Counsel; Scott 21
M. Marconda, Senior Trial Attorney, Office of 22
Immigration Litigation, Civil Division, United States 23
Department of Justice, for Respondent. 24
25
JED S. RAKOFF , District Judge: 26
I. Background 27
A. Tian’s Claim of Persecution 28
Tian arrived in the United States on September 11, 2014, on a temporary 29
business visa. Five months later, on February 18, 2015, Tian applied for asylum, 30

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withholding of removal, and protection under the CAT, claiming that he had been 1
persecuted by the Chinese government because of his opposition to that 2
government’s “forcible demolition” policy by which villagers’ homes are 3
demolished without just compensation. Certified Administrative Record (“CAR”) 4
at 201. Tian testified before the IJ in support of his application and, importantly, 5
the IJ fully credited his testimony. Specifically, Tian testified that before arriving 6
in the United States, he and his family, who were farmers, resided in a home in a 7
rural area of China known as Rujiang Village, in Fujian Province. On March 10, 8
2011, representatives of the Chinese government notified Tian and other residents 9
of Rujiang that they intended to demolish their houses to develop new housing on 10
the village land. Initially, the government offered to compensate those villagers 11
who possessed deeds to their houses at 100% of the value of each house built 12
before 1990 and 70% for each house built after 1990. However, because Tian, like 13
most villagers, did not possess a “title-deed” to his house, he was offered only 50% 14
compensation. CAR at 208. After most such villagers, including Tian, refused the 15
50% offer, the government increased the offer for houses without deeds to 70% of 16
the value, but Tian and many others still did not accept the offer. Those villagers 17
who did accept, including Tian’s immediately adjacent neighbors, received notices 18

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from the government that their homes would be demolished on May 10, 2011. 1
Most of the houses in the village were “attached” and not stand-alone houses, 2
which meant that the demolition would impact not only the houses of the villagers 3
who accepted the offers but also many of those who did not. 4
On the day of the demolition, Tian and others who refused the offers 5
protested the “unreasonable demolition” and barricaded a road to prevent the 6
demolition team from reaching the village. CAR at 74–75. In his submission to the 7
IJ, Tian provided photographs of two of the banners that the villagers held up 8
during the protest, which read (in translation): “Fair and Just, Cancel the 9
Agreement of Demolition and Relocation; Return Us Our Contracts; Return Us the 10
Land; Return Us the Transitional Allowance; Give Us the Justice, Give Us the 11
Fairness!” and “By Justice, By principle; Return Us Our Land, Return Us Our 12
Homes; Annul the Agreement and Return the Contract; Where is the Truth? Stop 13
Forcible Demolition and Savage Actions in Rujiang; Demanding the District 14
Government to Provide Us a Solution! From all people of one mind, 2012.” CAR 15
at 190. The police officers dispersed the protesters with shields and beat them with 16
batons. They then arrested Tian and twelve other protesters and brought them to 17
the local police station where they “educated” them that the protest was “illegal” 18

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and “violated the . . . national interest.” CAR at 77. Tian testified that protesting 1
was not illegal under Chinese law, but admitted that barricading the village road 2
was. Eventually, Tian was released, but only after signing a document in which he 3
promised that he would not participate in similar protests in the future. 4
After his release, the government representatives visited Tian at his home 5
and told him that if he now accepted the government’s offer, he would be paid 6
70% of his house’s value within a month of acceptance, but if he refused to sign, 7
not only would he receive nothing, but also his family would be faced with the 8
prospect of being “broken” and that “people may die.” CAR at 80. Under this 9
duress, Tian signed the offer and agreed to move out on or about May 23, 2011. 10
However, even though the government then demolished Tian’s home, the 11
promised compensation never came. Further, while Tian built a shelter out of 12
wood to house him and his family, the government eventually cut off the supply 13
of utilities to the shelter. 14
After three years had passed following the demolition and Tian still had not 15
received any compensation, he went to the Office of Demolition and Relocation to 16
inquire about the promised financial compensation and accused the government 17
of corruption and “gang[ing] up with [the] merchants.” CAR at 209. The 18

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government workers at the office called the police, who then handcuffed Tian and 1
escorted him to the police station where he was interrogated about why he made 2
“trouble at the Government office.” CAR at 88. The police officers told him to kneel 3
and proceeded to kick him in the lower back, in the face, and on his head, which 4
caused him swelling, bleeding, and eardrum perforation, as corroborated by 5
medical records from Tian’s visit to a doctor the next day. Before releasing him, 6
the police warned Tian not to “cause more trouble” because if he did, he would 7
face more severe consequences in the future. CAR at 209. Tian’s family was not 8
resettled to new housing until May 2018. 9
B. Proceedings Before the Agency 10
Following an evidentiary hearing, the IJ issued an oral decision denying 11
Tian’s petition. See In re Shuqiang Tian, No. A208-092-081 (Immigr. Ct. N.Y. City 12
Apr. 19, 2019). In that decision, the IJ concluded that such “prosecution as occurred 13
here is not necessarily persecution” because Tian engaged in concededly illegal 14
acts of blocking a village road and agitating in a government office. CAR at 53. 15
According to the IJ, Tian had failed to demonstrate a sufficient nexus between the 16
exercise of his opposition to the demolition program and the harms he suffered, 17
let alone an adequate basis for fearing he would suffer further harms if he were 18

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removed to China. On such grounds, the IJ also denied Tian’s application for 1
withholding of removal, which requires a less stringent burden of proof than 2
asylum. As for Tian’s CAT claim, the IJ summarily concluded that Tian had not 3
suffered “torture within the meaning of the regulations” and that he failed to 4
establish that he was more likely than not to face torture upon return to China. 5
CAR at 54. 6
On January 6, 2022, in a two-page opinion, the BIA adopted and affirmed 7
the IJ’s decision and dismissed Tian’s petition. See In re Shuqiang Tian, No. A208- 8
092-081 (B.I.A. Jan. 6, 2022). The BIA concluded that Tian had not only failed to 9
demonstrate past persecution but had also failed to show that any protected 10
ground “was or would be a central reason for his fear of harm at the hands of the 11
government officials, who demolished his home for economic development 12
purposes[.]” CAR at 3. The Board likewise affirmed the IJ’s denial of protections 13
under the regulations implementing CAT, finding that Tian had failed to establish 14
either that he had experienced torture in the past or that the government would 15
acquiesce in future torture. Pursuant to 8 U.S.C. § 1252, Tian filed this timely 16
petition from the BIA’s decision denying his application. 17

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II. Discussion 1
While the severity of Tian’s claims pales in comparison with many asylum 2
requests, we are constrained to conclude that the agency’s analysis of his claims 3
was legally deficient. In this regard, we have considered both the IJ’s and the BIA’s 4
opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 5
F.3d 524, 528 (2d Cir. 2006). We review the agency’s factual findings for substantial 6
evidence, reversing only if “any reasonable adjudicator would be compelled to 7
conclude to the contrary.” Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) 8
(quoting 8 U.S.C. § 1252(b)(4)(B)). However, “[d]espite our generally deferential 9
review of IJ and BIA opinions, we require a certain minimum level of analysis from 10
the IJ and BIA” to allow for meaningful judicial review, as well as “some indication 11
that the IJ considered material evidence supporting a petitioner’s claim.” 12
Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005). “We will vacate and remand 13
for new findings . . . if the agency’s reasoning or its factfinding process was 14
sufficiently flawed.” Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir. 2009). 15
A. Asylum and Withholding of Removal 16
An applicant for asylum or withholding of removal must establish that 17
because of a protected ground—here, “political opinion”—he has suffered past 18

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persecution, or has a well-founded fear or likelihood of future 1
persecution. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A) (asylum); 8 U.S.C. 2
§ 1231(b)(3)(A) (withholding of removal). “To establish persecution ‘on account of’ 3
political opinion . . . , an asylum applicant must demonstrate that the persecution 4
arises from his own political opinion, actual or imputed.” Rodas Castro v. Holder, 5
597 F.3d 93, 100 (2d Cir. 2010). “The important questions for determining the 6
nature of the applicant’s opposition are whether the applicant’s actions were 7
directed toward a governing institution, or only against individuals whose 8
corruption was aberrational, and whether the persecutor was attempting to 9
suppress a challenge to the governing institution[.]” Yueqing Zhang v. Gonzales, 426 10
F.3d 540, 548 (2d Cir. 2005) (citation and quotation marks omitted). “Answering 11
these questions necessarily involves a ‘complex and contextual factual inquiry’ 12
into the nature of the asylum applicant’s activities in relation to the political 13
context in which the dispute took place.” Rodas Castro, 597 F.3d at 101 (quoting 14
Yueqing Zhang, 426 F.3d at 548). Finally, “[i]n cases where there is more than one 15
motive for mistreatment (also known as mixed-motive cases) . . . [the protected 16
ground] must be at least one of the central reasons, rather than a minor reason, for 17

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why that individual is being targeted.” Garcia-Aranda v. Garland, 53 F.4th 752, 757 1
(2d Cir. 2022); see also Quituizaca v. Garland, 52 F.4th 103, 107–14 (2d Cir. 2022). 2
Tian asserts that he was persecuted based on a protected ground, 3
specifically, his political opinion. The political opinion that Tian repeatedly and 4
openly expressed to government officials was the same basic principle enshrined 5
in our Fifth Amendment: “nor shall private property be taken for public use, 6
without just compensation.” U.S. C ONST . amend. V. The IJ credited Tian’s 7
testimony that after he repeatedly expressed that opinion, he was not only arrested 8
but also was threatened and eventually assaulted. Nonetheless, the IJ concluded 9
that Tian failed to show that the harm he experienced was “on account of” his 10
political opinion. CAR at 53. According to the IJ, this was because, on the one hand, 11
the Chinese government indicated its substantial agreement with Tian’s opinion 12
by offering him partial compensation for harm to a property to which Tian did not 13
even possess a deed, and, on the other hand, because the immediate precursors to 14
Tian’s being threatened and then assaulted were his arrests for blocking a public 15
road and for disrupting a public office. 16
However, even assuming arguendo that the arrests were legitimate and 17
preceded the threats and assaults, we have held that “the persecutor’s motive need 18

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not be solely to overcome the applicant’s political opinion,” Yueqing Zhang, 426 F.3d 1
at 548. And here it was clear from Tian’s credited testimony that the threats and 2
assaults were closely linked to Tian’s vigorous expression of his opposition to the 3
government’s demolition policy. Thus, in the case of his first arrest, Tian’s release 4
was expressly conditioned upon signing an agreement that he would no longer 5
participate in protests against the government’s demolition policy. His subsequent 6
signing of a partial compensation offer that he had previously opposed was then 7
achieved by the government’s telling him that if he refused to sign, his family may 8
be “broken” and “people may die.” CAR at 80. And finally, the disruption of the 9
government office that led to the second arrest and accompanying physical assault 10
immediately followed his assertion of his right to the promised compensation and 11
his railing against the government’s alleged corruption in carrying out the 12
demolition policy. It thus seems highly likely that a major motive for Tian’s arrests 13
and for the threats made to him and assaults visited upon him was his vigorous 14
expression of his political opinion; but despite our holdings in Garcia-Aranda and 15
Yueqing Zhang, supra, the IJ effectively ignored this possibility. 16
Further, Tian’s testimony is consistent with other evidence he introduced 17
that Chinese government officials often illegally detain those who try to lodge 18

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complaints concerning the government’s land takings, that the government 1
frequently ignores petitioners’ concerns and “round[s] [them] up,” that “re- 2
education” is a “common punishment for would-be petitioners,” that this system 3
is used to “silence government critics,” and that the government has violently 4
suppressed largescale protests over the forced demolition and expropriation in 5
rural China. CAR at 193–94. There is no indication that the agency considered any 6
of this evidence at all. Cf. Poradisova, 420 F.3d at 81 (“IJs and the BIA have a duty 7
to explicitly consider any country conditions evidence submitted by an applicant 8
that materially bears on his claim.”). 9
We conclude that the agency’s failure to consider both the obvious context 10
of Tian’s protests and the credited evidence of the government’s retaliation for that 11
expression through prosecution and persecution was erroneous. 12
The agency also failed to consider several facts indicating that the arrests 13
may have been pretextual. See Jin Jin Long v. Holder, 620 F.3d 162, 166 (2d Cir. 2010) 14
(“[P]rosecution that is pretext for political persecution is not on account of law 15
enforcement.”). After arresting Tian purportedly for blocking the village road, the 16
government never formally charged him with any crime or brought him before a 17
judge. Instead, the police officers “educated” Tian about the “national interest” 18

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and conditioned his release upon Tian agreeing that he would not engage in 1
further protests of any kind. CAR at 77; cf. Jin Jin Long, 620 F.3d at 167. Similarly, 2
it is unclear what legal infraction, if any, Tian committed that precipitated his 3
arrest after he accused the government of corruption at the Office of Demolition 4
and Relocation. Despite the apparent lack of formal charges, the police detained 5
Tian and severely beat him. See, e.g., Vumi v. Gonzales, 502 F.3d 150, 158 (2d Cir. 6
2007) (holding that “interrogation and punishment” that is “disproportionate to 7
the crime . . . would indicate persecution on grounds of political opinion rather 8
than prosecution or legitimate law-enforcement interrogation”) (citation and 9
quotation marks omitted). In short, we find that the agency further erred because 10
it failed to consider whether the cumulative facts support an inference that Tian’s 11
arrest and detention were pretextual. 12
Finally, the agency’s focus on the fact that Tian was offered (partial) 13
compensation, while failing to examine the context or the nature of Tian’s 14
opposition to the government’s demolition policy, is also an error. Regardless of 15
any partial benefit Tian stood to receive, the evidence discussed above suggests, at 16
the very least, that his actions “transcend[ed] mere self-protection and 17
represent[ed] a challenge to the legitimacy or authority of the ruling regime[,]” 18

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Yueqing Zhang, 426 F.3d at 548, and that the government attempted to suppress 1
those challenges. Instead of engaging with the relevant contextual evidence, the 2
agency fixated on the fact that Tian did not “hold evidence of legal possession” to 3
his house. CAR at 53. Whether or not Tian held a deed has little relevance to 4
whether the Chinese government’s response to Tian’s protests amounted to 5
persecution on account of political opinion. 6
B. CAT Relief 7
On appeal, Tian also challenges the agency’s denial of relief under the 8
regulations implementing the CAT. To obtain CAT relief, a non-citizen must show 9
that it is “more likely than not” that he would be tortured if removed to the 10
proposed country of removal. 8 C.F.R. § 1208.16(c)(2). CAT relief does not require 11
a nexus between the alleged torture and a protected ground. See Garcia-Aranda, 53 12
F.4th at 758. And “torture” is defined as “any act by which severe pain or suffering, 13
whether physical or mental, is intentionally inflicted on a person . . . by, or at the 14
instigation of, or with the consent or acquiescence of, a public official acting in an 15
official capacity or other person acting in an official capacity.” 8 16
C.F.R. § 1208.18(a)(1). Tian presented oral testimony and medical evidence that he 17
was severely beaten by the police officers while made to kneel. The beating made 18

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him swollen and dizzy, and caused him to bleed and suffer permanent hearing 1
loss. Without engaging with any facts in the record or referencing any precedent, 2
the IJ summarily concluded that Tian “did not suffer torture within the meaning 3
of the [CAT] regulations.” CAR at 54. In a conclusion devoid of any reasoning, the 4
BIA then affirmed that Tian “did not experience mistreatment rising to the level of 5
torture” and added that he “cannot met [sic] his burden of proof based on a string 6
of suppositions that he will be targeted for torture, and that authorities would 7
acquiesce or turn a blind eye to such harm.” CAR at 4. The agency left us with no 8
reasoned basis upon which we can evaluate its decision and, further, gave us no 9
“indication” that it “considered material evidence supporting a petitioner’s 10
claim.” Poradisova, 420 F.3d at 77. As we have held before, “failure to consider 11
material evidence in the record is ground for remand.” Delgado v. Mukasey, 508 12
F.3d 702, 709 (2d Cir. 2007); see also Scarlett v. Barr, 957 F.3d 316, 329–31 (2d Cir. 13
2020) (remanding where the agency did not appear to give reasoned consideration 14
to all relevant evidence). 15
For the foregoing reasons, the petition for review is GRANTED and the 16
BIA’s decision rejecting Tian’s claims for asylum, withholding of removal, and 17
CAT is VACATED. This matter is REMANDED to the BIA for further 18

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consideration consistent with this opinion. All pending motions and applications 1
are DENIED and stays VACATED. 2

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