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Kang v. Attorney General of the United States

July 8, 2010


Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA No. A-99-939-158) Immigration Judge: Honorable Walter A. Durling.

The opinion of the court was delivered by: Rendell, Circuit Judge.


Argued May 26, 2010

Before: McKEE, Chief Judge, RENDELL and GARTH, Circuit Judges.


In October 2003, Jinyu Kang, a Korean citizen of China, was named in a Chinese arrest warrant with two other individuals, Zheyun Jin and Baoyu Jin, all three of whom were members of a group called the "Human Rights Organization." They were being sought by the Chinese police for providing food and shelter to North Korean refugees who had illegally entered China on their way to South Korea.

After learning that there was a warrant for her arrest, Kang fled China and illegally entered the United States in January 2004. She was later arrested by the Philadelphia police for solicitation, but those charges were withdrawn. Kang conceded removability under 8 U.S.C. § 1182(a)(6)(A)(i), but applied for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3) on grounds of future persecution, and withholding of removal under the Convention Against Torture ("CAT"). The Immigration Judge ("IJ") denied Kang's petition for asylum and her application for withholding of removal based on future persecution, but granted her relief under CAT. The BIA affirmed except as to the CAT claim and therefore ordered Kang removed. Kang has filed a petition for review, which we will grant in part.

Kang is not contesting the IJ's or the BIA's decisions on her asylum claim, but she contends that the IJ and the BIA erred in denying her withholding of removal based on future persecution, and that the BIA erred in reversing the IJ's grant of relief under CAT. We will grant Kang's petition for review and vacate and reverse the BIA's decision on her CAT claim because the BIA's determination is not supported by substantial evidence. Instead, the record compels the contrary conclusion, namely, that it is more likely than not that Kang will be tortured if returned to China.

I. Proceedings Before the Immigration Judge

The IJ held hearings on Kang's claims on April 24, 2008, and May 21, 2008, and issued a written decision on June 27, 2008. In his written decision, the IJ held that Kang's asylum claim was time-barred as it was not filed within 1 year after the date of her arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). On appeal, Kang does not challenge this ruling. The IJ also denied withholding of removal on the ground of future persecution under § 1231(b)(3). We need not address Kang's claim for withholding of removal based on future persecution because we grant her relief under CAT.

Kang presented extensive evidence in support of her application for withholding of removal under CAT. She submitted affidavits from Zheyun Jin and Baoyu Jin, the two other individuals named with her in the arrest warrant. Both Zheyun Jin and Baoyu Jin recounted in detail that they were subjected to abuse by Chinese officials while being interrogated about the locations of other people involved in their organization.

Zheyun Jin stated that, while interrogating him, authorities beat him with police clubs, put bags over his head to obstruct his breathing, poured cold water over him, pulled his hair, forced him to kneel for hours, whipped the soles of his feet, slapped him until his face was swollen and "blood [was] streaming down," deprived him of sleep, and tied him "to the railing with [his] hands at the back and [his] feet hanging in the air," to the point that his arms were "almost broken." App. 614.

Baoyu Jin stated that as part of her interrogation, Chinese authorities deprived her of sleep to the point that her vision deteriorated, and they obstructed her breathing by putting bags over her head, causing her to faint several times. Baoyu Jin also stated:

They hung me on the awning, with my hands on the back, and shot strong light beam directly into my eyes. I could not even open my eyes, and my tears coming down. Such painful experience was beyond words. After I was hung up, the tip of my toe could hardly touch the ground. When I felt tired, and wished to stand on the heel of my feet, my wrists felt great pain. Now both of my wrists are swelling and can not exert strength. The police also cuffed both my hands to a piece of heating unit, and use the electric ...

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