2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-2010

Jinyu Kang v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 08-4790

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4790

 

JINYU KANG,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

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

 

Argued May 26, 2010

Before: McKEE, Chief Judge, RENDELL and 

GARTH, Circuit Judges.

(Filed: July 8, 2010)

 
2

Man C. Yam, Esq. [ARGUED]

Law Offices of Beranrd & Yam

401 Broadway, Suite 1708

New York, NY 10013

Counsel for Petitioner

John W. Inkeles, Esq. [ARGUED]

U.S. Department of Justice

Office of Immigration Litigation

450 5th Street, N.W.

Washington, DC 20001

 Counsel for Respondent

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

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
3

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for solicitation, but those charges were withdrawn.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. §
4

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:
5

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 club to touch the

heating piece. The electric current flew through

my body, and I felt very painful. I still did not say

anything.

 App. 618. 

At the IJ’s hearing, Kang also offered the testimony of

Steven Kim, a United States citizen detained by the Chinese

authorities for 48 months for helping North Korean refugees

enter China illegally. Kim testified that he was spared from

being beaten while in custody only because he was an American

and the Chinese officials were afraid that if they mistreated him,

he would tell the American consular representative during the

representative’s monthly visits. However, Kim testified that

prisoners who were detained for aiding North Koreans were

handcuffed to iron bars and forced to stand for 48 hours at a

time. Kim also testified that harsh treatment was meted out

when prisoners gave unsatisfactory answers to questions about

the effort to assist the North Korean refugees, including

questions about their personal conduct and about the identities
6

and conduct of others involved. Kim stated that he had spoken

with a prisoner who, after refusing to answer these questions,

had been beaten, restrained, shocked with electricity, and

deprived of sleep for 48 hours at a time. Kim saw the scars on

that prisoner’s chest and wrist resulting from these beatings.

Along with his testimony, Kang also submitted an affidavit from

Kim reciting several of these allegations. 

During her hearing before the IJ, Kang testified that she

believed she would be interrogated and tortured if she returned

to China because she had been a member of the Human Rights

Organization, left China without permission, and had applied for

asylum in the United States. She stated that members of her

organization who were detained by the Chinese authorities

reported that they had been beaten and tortured. Kang also

testified that the authorities interrogated her son to learn her

whereabouts, and that during this interrogation, he, too, was

beaten, kicked, deprived of sleep for several days, and detained

in solitary confinement. These allegations were corroborated by

the contents of an affidavit submitted by Kang’s son, wherein he

stated that after Kang fled the country, Chinese authorities

deprived him of sleep, slapped him on the face, kicked him in

the stomach, and pulled his hair when he refused to answer their

questions about where his mother had gone. 

At the hearing, Kang also introduced a 2007 Country

Report on China issued by the U.S. State Department, which

reported that “there continued to be frequent reports that police

and other elements of the security apparatus employed

widespread torture and degrading treatment when dealing with

some detainees and prisoners.” App. 506. Although torture is
7

against the law in China, “the Supreme People’s Procuratorate

(SPP) Deputy Secretary Wang Zhenchuan acknowledged that

illegal interrogation by ‘atrocious torture’ existed in local

judicial practice throughout China.” Id. Prisoners reported

being tortured with “electric shocks, beatings, shackles,”

“suspension from the ceiling by [one’s] arms,” and being

“shackled and forced to sit in extreme positions for extended

periods of time.” App. 506-07. One prisoner recounted being

chained to an iron bed for days and another stated that he was

tied to a “tiger bench” for four hours. App. 506. When using a

“tiger bench,” the victim is seated on a bench with “legs tied

stretched out straight on the bench and hands tied behind a

vertical back support. Bricks or other hard objects are then

pushed under the victim’s legs or feet, causing the legs to bend

upwards, sometimes until they break.” Id. While the report

stated that torture was “on a decline--particularly in urban

areas,” it still noted that torture “remained widespread, and that

procedural and substantive measures were inadequate to prevent

torture.” App. 507. Despite Chinese courts “issu[ing] directives

to eliminate interrogation through torture” in 2006, there was an

8.3% increase in cases of “dereliction of duty and infringement

of rights by officials” from 2006 to 2007. Id.

The IJ granted withholding of removal under CAT,

concluding that “[t]he overall record evidence more than

suggests that [Kang’s] fears of likely prospective torture through

the intentional infliction of severe pain or suffering while in the

Chinese government’s custody or physical control has merit.”

App. 325. Although the IJ specifically cited only Kim’s

testimony and the Country Report, it is clear that he considered
 The IJ noted a “disconnect between [Kang’s] testimony 1

and the information in the arrest warrant” (specifically, an

inconsistency between the date the arrest warrant was issued and

the date Kang testified that she learned of the arrest warrant),

but, despite noting that there was “confusion” surrounding the

arrest warrant, he did not make an adverse credibility finding.

App. 321. “We have several times affirmed the rule that where

an IJ or the BIA fails to make an explicit credibility finding, we

will proceed as if the applicant’s testimony were credible.”

Toure v. Att’y Gen., 443 F.3d 310, 326 (3d Cir. 2006).

8

the record as a whole before reaching this conclusion. 

1

II. The BIA’s Ruling

The Government appealed the IJ’s grant of withholding

of removal under CAT, and Kang cross-appealed the denial of

asylum and withholding of removal under § 1231. The BIA

affirmed the IJ’s denial of asylum and withholding of removal

under § 1231, and reversed the IJ’s grant of withholding of

removal under CAT. 

With respect to withholding of removal under CAT, the

BIA concluded that the “IJ erred in determining that it is more

likely than not that [Kang] would be tortured if returned to

China.” App. 24. The BIA determined that the Country Report

was not persuasive because, while it stated that there are

frequent reports of torture in China, it “does not indicate that

those imprisoned for smuggling were specifically at risk or

routinely subjected to torture.” Id. The BIA described Kim’s
9

testimony as stating “that some people were beaten by other

inmates and guards, chained for prolonged periods, and

subjected to severe conditions and interrogations,” and decided

that “[a]lthough conditions in Chinese prisons may be harsh, and

incidents of torture may occur, we find that the respondent has

failed to demonstrate that it is more likely than not that she

would be subjected to treatment specifically intended to torture

her while imprisoned.” Id. 

The BIA also stated that “[t]he record does not establish

that the Chinese authorities use torture as a matter of policy, and

the Country Report indicates that the incidents of torture are on

the decline and that the government is taking steps to eliminate

interrogation through torture.” App. 25. The BIA thus

concluded that “the respondent has failed to establish that the

severe instances of mistreatment found in the record are so

pervasive as to establish that a person detained in a Chinese

prison will be more likely than not be subjected to torture, as

opposed to other acts of punishment or treatment, which do not

amount to torture.” Id.

In its decision, the BIA specifically referred only to

Kim’s testimony and the Country Report. The BIA completely

ignored the rest of the record, including the affidavits of Zheyun

Jin, Baoyu Jin, and Kang’s son. 

III. Jurisdiction and Standard of Review 

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3).

We exercise jurisdiction under 8 U.S.C. § 1252. Because the
10

BIA did not adopt or defer to the IJ’s opinion regarding Kang’s

CAT claim, we review only the BIA’s decision. Abdulai v.

Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). We review the

BIA’s legal determinations de novo, “subject to the principles of

[Chevron] deference.” Pierre v. Att’y Gen., 528 F.3d 180, 184

(3d Cir. 2008). While our review of the BIA’s decision is

deferential, “deference is not due where findings and

conclusions are based on inferences or presumptions that are not

reasonably grounded in the record, viewed as a whole.”

Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 290 (3d Cir.

2007) (citation omitted). The BIA may not ignore evidence in

the record that favors the petitioner. Espinosa-Cortez v. Att’y

Gen., _ F.3d _, No. 08-4170, 2010 WL 2179195 at *11 (3d Cir.

June 2, 2010). To reverse the BIA’s finding we must find that

the evidence “compels” a different result. INS v. EliasZacarias, 502 U.S. 478, 481 (1992). 

[T]he BIA’s determinations will be upheld if they

are supported by reasonable, substantial, and

probative evidence in the record considered as a

whole. Under the substantial evidence standard,

the BIA’s determinations must be upheld unless

the evidence not only supports a contrary

conclusion, but compels it. However, as just

suggested, the BIA must substantiate its

decisions. We will not accord the BIA deference

where its findings and conclusions are based on

inferences or presumptions that are not reasonably

grounded in the record.

Sheriff v. Att’y Gen., 587 F.3d 584, 589 (3d Cir. 2009) (internal
11

quotation marks, alterations, and citations omitted). 

Here, the BIA reviewed the IJ’s grant of CAT relief de

novo. The BIA’s ruling in this case was issued before we

decided Kaplun v. Attorney General, 602 F.3d 260 (3d Cir.

2010), where we set forth a two-part standard of review for the

BIA to apply in reviewing an IJ’s determination of a CAT claim.

Kaplun held that the BIA should review the IJ’s factual

determination of the likelihood of mistreatment under a clear

error standard, and should apply a de novo standard of review as

to whether the mistreatment would legally constitute torture. Id.

at 272. Therefore, to reverse the IJ’s ruling under Kaplun, the

BIA would have to conclude either that the IJ clearly erred in

determining the likelihood that Kang would be tortured if

removed or, under a de novo standard, that the IJ’s legal

determination as to torture was wrong. Under Kaplun, we will

uphold the BIA’s reversal of the IJ’s grant of CAT relief if there

is substantial evidence supporting the BIA’s conclusion that the

IJ clearly erred in finding a likelihood of torture, or if we

determine that the alleged mistreatment does not legally

constitute torture. Conversely, we will reverse the BIA’s

determination if the evidence compels a finding that it is more

likely than not that the petitioner will be tortured if removed. 

The Government contends that a remand for the BIA to

review the IJ’s determination under Kaplun is unnecessary

because Kang has not shown a likelihood of torture. We agree

that a remand is not necessary, but for the opposite reason. We

hold that the BIA’s reversal of the IJ, and determination that

Kang was not entitled to relief under CAT, was not supported by

substantial evidence and that the record compels the opposite
 The Country Report states that, according to a “UN 2

Special Rapporteur,” “officials specifically targeted for abuse

house church groups, Falun Gong adherents, Tibetans, and

Uighur prisoners.” App. 507. This does not indicate that those

12

conclusion (as a matter of fact and law). Thus, we need not

remand for the BIA to analyze the IJ’s decision under the

Kaplun standard of review.

IV. Convention Against Torture

Kang contends that the BIA erred in reversing the IJ’s

grant of withholding under CAT because the evidence presented

before the IJ compelled the conclusion that it was more likely

than not that she would be tortured if returned to China, and

because the BIA’s decision to the contrary is not supported by

substantial evidence. We agree. 

The Government responds that Kang only provided

evidence of substandard prison conditions in China, and

“mistreatment” of some prisoners, which is insufficient to

prevail on a CAT claim. The Government urges that the BIA

relied on certain factual findings by the IJ, including the fact that

Kim was not tortured despite being convicted of aiding North

Korean refugees, and that Kim testified “that only those

prisoners who broke the prison rules were mistreated.”

Respondent’s Br. at 25. Additionally, the Government describes

the Country Report as stating “that people arrested for harboring

illegal aliens were not amongst the groups most prone to

mistreatment.” Id. 

2
arrested for aiding North Koreans are unlikely to be tortured.

 In Auguste and Francois, the petitioners provided 3

evidence of deplorable prison conditions in Haiti as well as

beatings of prisoners by guards. We rejected the petitioners’

claims that they were entitled to withholding under CAT

because there was no reason to believe that the petitioners were

especially likely to be targeted for mistreatment. Pierre, 528

F.3d at 183, 189. The deficiency in the petitioners’ claims in

Auguste and Francois was that they could not show that

“Haitian officials will have the purpose of inflicting severe pain

or suffering by placing [the petitioners] in detention upon [their]

removal from the United States.” Pierre, 528 F.3d at 190; see

also Auguste, 395 F.3d at 153-54; Francois, 448 F.3d at 651-52.

13

The Government also notes that in Pierre, 528 F.3d at

189, we held that CAT “requires a petitioner to show that his

prospective torturer will have the motive or purpose to cause

him pain or suffering,” and argues that the IJ did not make any

factual findings that would support a determination of such

“specific intent.” Respondent’s Supp. Br. at 4-5. According to

the Government, Kang “failed to make a showing of specific

intent to inflict pain and suffering upon her.” Id. at 7. Instead,

the Government claims that Kang’s allegations are similar to

claims that we rejected in two other cases involving prison

conditions--Auguste v. Ridge, 395 F.3d 123, 146-47 (3d Cir.

2005), and Francois v. Gonzales, 448 F.3d 645, 651 (3d Cir.

2006)--in that Kang has not claimed “past torture or

mistreatment directed specifically at her.” Respondent’s. Supp.

Br. at 7-8.3
Deplorable prison conditions do not, by themselves, constitute

torture. In contrast, Kang presented considerable evidence to

support a finding of specific intent to inflict severe pain and a

finding that she would be specifically targeted. 

14

A petitioner seeking withholding of removal under CAT

must show that “it is more likely than not that he or she would

be tortured if removed to the proposed country of removal.” 8

C.F.R. § 208.16(c)(2). All evidence relevant to the possibility

of future torture should be considered when assessing if a

petitioner is more likely than not to be tortured if removed. Id.

§ 208.16(c)(3). The regulations set out the following definition

of torture:

Torture is defined as any act by which severe pain

or suffering, whether physical or mental, is

intentionally inflicted on a person for such

purposes as obtaining from him or her or a third

person information or a confession, punishing him

or her for an act he or she or a third person has

committed or is suspected of having committed,

or intimidating or coercing him or her or a third

person, or for any reason based on discrimination

of any kind, when such pain or suffering is

inflicted by or at the instigation of or with the

consent or acquiescence of a public official or

other person acting in an official capacity.
15

8 C.F.R. § 208.18(a)(1). In addition, “[i]n order to constitute

torture, an act must be specifically intended to inflict severe

physical or mental pain or suffering.” § 208.18(a)(5). We have

stated that “CAT requires a showing of specific intent before the

court can make a finding that a petitioner will be tortured.”

Pierre, 528 F.3d at 189. A petitioner must demonstrate “that his

prospective torturer will have the motive or purpose to cause

him pain or suffering.” Id.

We conclude that the evidence compels the conclusion

that Kang has met this burden. The BIA’s assessment of the

evidence, as well as the Government’s argument portraying the

evidence as involving mere prison conditions and ignoring the

inherently torturous nature of the treatment about which the

witnesses testified, are inexplicable. Moreover, the BIA appears

to have totally ignored the most forceful record evidence.

Zheyun Jin’s and Baoyu Jin’s affidavits stated that, in an effort

to force them to disclose the locations of other members of their

organization, Chinese officials beat them, poured cold water

over them, whipped them, put plastic bags over their heads to

suffocate them, hung them in the air, shined bright lights into

their eyes, deprived them of sleep, and shocked them with

electrical current. 

During her hearing, Kang similarly testified that members

of her organization had been suffocated with plastic bags and

beaten. Kang also testified, corroborated by her son’s affidavit--

also ignored by the BIA--that when police interrogated her son

about her whereabouts, they beat him, kicked him, and deprived

him of sleep for several days. During Kang’s hearing and in a

written affidavit, Kim testified that he had heard of or observed
16

other prisoners being beaten, forced to stand for 48 hours at a

time, deprived of sleep, and electrically shocked as part of

interrogations regarding their involvement with the North

Korean refugees. The 2007 Country Report corroborated these

claims, reporting that torture in China was “widespread” and

that it involved many of the methods described above. App.

506-07.

In light of this evidence, the BIA’s conclusion that Kang

failed to show the required likelihood of torture falls short of

satisfying the substantial evidence standard; rather, it is contrary

to the evidence in the record. Although we generally defer to

the BIA’s conclusion, the BIA may not “simply overlook

evidence in the record” that supports Kang’s claim. EspinosaCortez, 2010 WL 2179195 at *11. In its opinion, the BIA

ignored the majority of the evidence that Kang presented,

including the most telling evidence of torture, and instead

mentioned only the Country Report and Kim’s testimony. The

BIA concluded that, even if torture occurred in Chinese prisons,

Kang had not demonstrated that it was more likely than not that

she would be tortured if returned to China. Significantly, the

BIA did not mention the testimony of individuals who were

similarly situated to Kang. Kang’s situation in China is unlike

Kim’s because he is an American citizen. By contrast, Zheyun

Jin and Baoyu Jin were named in the same arrest warrant as

Kang, and Kang’s son was specifically interrogated and abused

in order to elicit information about Kang herself. Because the

BIA relied on only Kim’s testimony and the Country Report,

and completely ignored the other affidavits, its conclusions are

not “reasonably grounded in the record”; therefore, we owe its

decision no deference. Sheriff, 587 F.3d at 589. 
17

The record compels the conclusion that if Kang is

removed to China it is more likely than not that she will be

beaten, suffocated, deprived of sleep, shocked with electrical

current, and/or forced to stand for long periods of time, and that

this would be done with the purpose of causing her severe pain

and suffering. Other individuals accused of precisely the same

crime as Kang were subjected to this treatment, for the purpose

of forcing them to disclose information about their organization.

Moreover, her son was abused in order to elicit information

about Kang herself. There is no doubt that this treatment

satisfies the legal definition of torture: it involves the

intentional infliction of “severe pain or suffering,” “for such

purposes as obtaining . . . information [from] . . . or punishing”

an individual, “with the consent or acquiescence of a public

official,” 8 C.F.R. § 208.18(a)(1), and with “the motive or

purpose to cause pain or suffering,” Pierre, 528 F.3d at 189.

The types of abuse suffered by Zheyun Jin and Baoyu Jin are not

merely evidence of deplorable prison conditions. The acts

themselves compel the conclusion that they were intended to

inflict pain. 

The Government’s contentions to the contrary are utterly

without merit. We are greatly troubled that the Government

urges that the evidence introduced by Kang is merely evidence

of substandard prison conditions. The Government completely

mischaracterizes Kim’s testimony on this issue. Kim’s

testimony was not limited to describing prison conditions.

Rather, he testified that prisoners were subjected to the acts

described above when they failed to disclose a satisfactory

amount of information during interrogations. Furthermore, as

described in detail above, Kang presented substantial evidence
18

that other individuals in her organization were tortured, and the

disturbing descriptions of their interrogations compel the

conclusion that the authorities acted with the purpose of

inflicting serious pain and suffering. No other purpose could

explain the horrific experiences detailed in the affidavits

presented to the IJ. 

It is disappointing, even shocking, that the government

fails to acknowledge that the evidence is not only strongly in

Kang’s favor, but, indeed, compels the conclusion that she will

likely be tortured. An attorney representing the United States

“carries a double burden.” Handford v. United States, 249 F.2d

295, 296 (5th Cir. 1958). To be sure, “he owes an obligation to

the government, just as any attorney owes an obligation to his

client, to conduct his case zealously.” Id. However, at the same

time he must be ever cognizant that “he is the representative of

a government dedicated to fairness and equal justice to all and,

in this respect, he owes a heavy obligation to [his adversary].”

Id. Unfortunately, in this case, “zeal was permitted to outrun

fairness.” United States v. Goodwin, 492 F.2d 1141, 1147 (5th

Cir. 1974). The Government, upon viewing the compelling

evidence in the record, should have realized that the BIA’s

decision to deny Kang CAT relief was wrong and therefore

ought to have come before this Court in support of Kang’s

petition, rather than against it. Instead, the Government sought

to characterize the facts in such a way so as to distract the Court

from the dire nature of Kang’s plight. While our adversarial

system may permit such advocacy by private parties - when the

United States appears before us, it is duty-bound to “cut square

corners” and seek justice rather than victory. We are distressed

that it failed to do so in this case.
19

We conclude that, because the BIA ignored

overwhelming probative evidence produced by Kang, its

findings were not reasonably grounded in the record and thus we

accord no deference to the BIA’s decision. Considering the

record as a whole, we find that the BIA’s determination was not

based on substantial evidence. Rather, the evidence instead

compels the conclusion that it is more likely than not that Kang

will be tortured if returned to China. While ordinarily “the

proper course, except in rare circumstances, is [for an appellate

court] to remand to the agency for additional investigation or

explanation,” Florida Power & Light Co. v. Lorion, 470 U.S.

729, 744 (1985), “[w]here application of the correct legal

principles to the record could lead only to the same

conclusion, there is no need to require agency

reconsideration.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.

2010) (alterations omitted, emphasis added). The case before us

is one of those “rare circumstances” where remand is not

necessary, since, as set forth above, the record evidence

overwhelmingly supports - and indeed, compels - the conclusion

that Kang’s petition for withholding of removal under CAT

should be granted, and no amount of reconsideration by the BIA

would change that. Accordingly, we reverse the BIA’s decision,

and grant Kang’s petition for withholding of removal pursuant

to CAT.