Xue v Lynch

Xue petitioned for review of the denial of application for asylum, withholding removal and admission under the Convention Against torture. The panel, with one judge concurring in part, affirmed. The panel held that under current circuit precedent, whether an applicant has suffered persecution is a question of fact. Two judges argued that the precedent is open to question as the board of immigration appeals treats the issue as one of law, but, further noted the issue had not been briefed and left it for another day. The concurrence argued the discussion about the proper standard of review was dicta. The panel held Xue’s claims failed because his account of being detained and beaten on one occasion for worshiping in an unregistered Christian church was insufficient as he was able to return to attending without incident, his family attended an unregistered church without incident, the fine was paid by his family and an even greater amount was paid to smuggle him out of the country and there was no evidence he would be detained again if her returned let alone tortured.