author: KLEINFELD, Senior Circuit Judge: CHRISTEN, Circuit Judge,

text:
    ALASKA AIRLINES INC., an Alaska corporation, Plaintiff-Appellant, v. Judy SCHURKE, in her official capacity as Director of the State of Washington Department of Labor and Industries; Elizabeth Smith, in her official capacity as Employment Standards Program Manager of the State of Washington Department of Labor and Industries, Defendants-Appellees, Association of Flight Attendants-Communication Workers of America, AFL-CIO, Intervenor-Defendant-Appellee.
    No. 13-35574
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 6, 2015 Seattle, Washington
    Filed January 25, 2017

      Mark Andrew Hutcheson (argued) and Rebecca Francis, Davis Wright Tremaine LLP, Seattle, Washington, for Plaintiff-Appellant.
    James Paul Mills (argued), Tacoma, Washington, for Defendants-Appellees.
    Kathleen Phair Barnard (argued), Schwerin Campbell Barnard Iglitzin & Lavitt LLP, Seattle, Washington, for In-tervenor-Defendant-Appellee.
    Before: J. CLIFFORD WALLACE, ANDREW J. KLEINFELD, and MORGAN CHRISTEN, Circuit Judges.
   Dissent by Judge CHRISTEN

OPINION

KLEINFELD, Senior Circuit Judge:

This is a Railway Labor Act preemption case. We decide, not the merits of the case, but which entity should decide upon the merits, the State of Washington, or the System Adjustment Board established pursuant to a collective bargaining agreement.

Facts.

Though this became a dispute between the airline and a state agency and union, it arises out of a dispute between a flight attendant and the airline about her sick leave. The flight attendant, Laura Masser-ant, called in sick in May, to care for her son who was ill. She proposed to take two days off as sick leave to care for him. But she had used up all her sick leave. She had vacation leave coming to her, but vacation leave is scheduled the October before the year in which it is to be used. Masserant had cashed out most of her vacation leave, and had scheduled all her remaining vacation leave for December, so she had none available to her in May. If Masserant had called in sick, despite having used up all her sick leave, she would have accumulated “points.” Under the collective bargaining agreement between her union and the airline, if a flight áttendant calls in sick too many times after using up all her sick leave, accumulating too many points, she is subject to graduated discipline—counseling, warning, and for enough points, termination.

Masserant claimed an entitlement to use her December vacation leave for her child’s illness without being charged points, under the Washington Family Care Act. That state statute does not entitle an employee to any leave. But if the employee is entitled to paid time off, the employee is entitled to use it for a sick child, not just for her own illness or vacation.

Masserant and the airline disagreed on how to interpret her entitlement. They do not dispute that she was entitled to seven days of vacation leave. But she had scheduled it for December. The airline claimed that she could only use it in December, but Masserant claimed that under the Washington statute, she was entitled to use it in May for her child’s illness. Masserant would be entitled to more sick leave in June, and the airline retroactively liberalized its policy so that she could use it in May, but even with that, she still did not have enough sick leave to cover the time she off she needed in May. The state agency that administers the Washington statute agrees with Masserant’s interpretation of the Washington statute.

The Washington statute does not create an entitlement to paid time off, sick leave or otherwise. It limits an employee to whatever her entitlement may be “under the terms of a collective bargaining agreement or employer policy.” And it requires that “[t]he employee taking leave under the circumstances described in this section must comply with the terms of the collective bargaining agreement or employer policy applicable to the leave, except for any terms relating to the choice of leave.”

The Alaska Airlines-Associated Flight Attendants collective bargaining agreement entitles employees to use available leave, however denoted, to take care of a sick child. It expressly provides that “sick leave” is usable for illness of a family member, not just the employee, and that availability of leave to care for family members is as broad as “the most liberal of the States in which flight attendants are domiciled.”

The dispute between the parties is not about whether Masserant could take her leave, but when. The collective bargaining agreement is stuffed full of limitations to assure that when a plane is being prepared for takeoff, the requisite number of flight attendants are on board. The important part, for Masserant’s purposes, are the provisions on scheduling use of vacation leave. Flight attendants get 14 days after their first year, 21 days after five years, 28 days after 10 years, and 35 days after 18 years. The airline has to post a list of available vacation times by October 1 of the preceding year. Flight attendants have 15 days to sign up, -and vacation periods are granted on a seniority basis. Flight attendants may trade vacation days, within stated limits.

What they cannot do is fail, without notice, to show up. They have to call in sick a certain number of hours prior to departure of their scheduled flight, and not do it too often or else suffer “points.” There is graduated discipline if too many points accumulate. “Points” are deleted for subsequent periods of proper attendance, and no action is taken for the first few points, but Masserant’s available and unused sick leave would not have covered her for the two day absence she sought in May. Masserant could have called in sick despite lacking available sick leave, three hours before each flight for which she was scheduled, but apparently the airline would have assessed points against her for absence without available leave. She wanted to take two days from the seven days of vacation leave she had scheduled in December, to avoid points. But the airline would not permit her to take her December vacation time in May. Vacation leave is “banked,” that is, treated as an entitlement, on January 1, and can be exchanged for cash in advance of the scheduled vacation, but a flight attendant cannot take the time off in advance of the time slot he or she scheduled the previous autumn. Mas-serant had taken four days of vacation leave and cashed out 21 days when her child got sick, leaving her only the seven days she had scheduled the previous fall for vacation in December. She claimed entitlement to take it in May instead, under the Washington statute.

As a practical matter, Masserant may be entitled to take time off to care for her sick child without penalty even though she has no sick leave available, because for a flight attendant’s first 4 1/2 points, there is no penalty. If a flight attendant gets too many points, they can be reduced by good attendance the next year.

Masserant and her union, the Associated Flight Attendants, disagreed with the airline’s position. But instead of grieving it under the collective bargaining agreement grievance procedure, they filed an administrative complaint with the State of Washington Department of Labor and Industries. The Department determined that Masserant was entitled to use her December vacation leave to care for her child in May. The airline was fined $200 for violating the statute. The airline, Masserant, and the union have agreed to delay state appellate and other proceedings so that this Railway Labor Act preemption dispute may be adjudicated. The district court granted summary judgment against the airline’s preemption claim. We now review the district court decision de novo.

Some of the relevant provisions in the collective bargaining agreement and employer customs are not entirely clear cut. A provision says that “no attendance points are assessed for an absence called in for a sick child,” but it is not obvious how far this reaches. Though sick leave can clearly be used to care for a sick child, no such explicit provision is made for vacation leave and the evidence suggests that vacation leave cannot be so mixed. A flight attendant can trade vacation days with another flight attendant, subject to a deadline and approval. And a flight attendant can accumulate up to 4 1/2 points for absenteeism with no disciplinary action, and subtraction of 2 points per quarter thereafter for quarters in which there are no chargeable occurrences, despite the absence of available leave.

Analysis.

The issue before us is not whether Mas-serant is entitled to use her vacation leave, scheduled for December, in May, to care for her sick child. Though that is what the case is all about, it is not the issue posed for us. The issue before us is limited to Railways Labor Act preemption, that is, whether the state administrative board or the collective bargaining agreement grievance procedure ought to decide whether Masserant is entitled so to use her December vacation leave in May. This is one of those cases to which the Thomas Reed Powell line applies, “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”

The most important fact about this case is the circularity between the Washington statute and the collective bargaining agreement. The statute makes the employee’s entitlement to leave (as opposed to what the leave may be used for) dependent on the collective bargaining agreement. And the collective bargaining agreement expands use of leave to whatever the state statute says. The point of the statute appears to be that, if an employee is entitled to take paid leave, whether denominated sick leave or any other kind, then the leave may be used to care for a sick relative, not just the employee himself. But entitlement to leave, under the statute, is to be defined by the collective bargaining agreement or employer practice. This dependence of the Washington statute on the collective bargaining agreement is established by its command that leave “shall be governed” by the collective bargaining agreement or employer policy.

Masserant’s claim can be resolved as a grievance under the collective bargaining agreement. It provides that “any controversy ... as to the meaning of any of the terms of this agreement” shall be presented as a grievance to a designated individual, with that person’s decision appealable to the Flight Attendants’ Board of Adjustment (two members appointed by the union, two by the company) and to mediation or arbitration (National Mediation Board under the Railway Labor Act provides a list of seven names, and each party strikes three). The question is not whether Mas-serant and her union could proceed with the grievance procedure, but whether the state agency is an alternative procedure available to them despite Railway Labor Act preemption.

“The Railway Labor Act was enacted ... [t]o avoid any interruption to commerce or to the operation of any carrier engaged therein.” The Act requires that carriers make agreements and settle disputes with their employees to avoid interruption to commerce. It covers airlines as well as railways. And it includes “a mandatory system of dispute resolution.” “Congress’s intent in the RLA [was] ‘to keep [carriers’] labor disputes out of the courts.” To facilitate this process, the RLA provides a “mandatory arbitral mechanism to handle disputes ‘growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.’ ”

Disputes under this regime are generally characterized as either major or minor. “[M]ajor disputes seek to create contractual rights, minor disputes to enforce them,” so disputes about defining the rights guaranteed by a collective bargaining agreement are minor disputes. Minor disputes are preempted by the RLA and must be dealt with first through a carrier’s internal dispute resolution process, and then a System Adjustment Board comprised of workers and management. The Act states that among its purposes are to provide for settlement of “all” disputes about “pay, rules or working conditions,” and “all” disputes growing out of interpretation or application of agreements about “pay, rules, or working conditions.”

There is an exception to this broad preemption, though, for independent state rights. Some exceptions are obvious, such as when the state right does not concern “pay, rules or working conditions.” But there are plenty of possible claims that arguably overlap both collective bargaining agreement provisions and state law. The Supreme Court appears to have evolved from the broadest possible preemption rule toward a more qualified rule, at least with respect to independent state-created rights.

The seminal preemption case, establishing the breadth of Railway Labor Act preemption, is Teamsters v. Lucas Flour Co. It holds that federal labor law must be paramount under the supremacy clause in areas covered by the federal statute, to avoid inconsistent state law interpretations under state contract law of collective bargaining agreements.

Allis-Chalmers Corp. v. Lueck holds that an apparently independent state tort unrelated to working conditions, bad faith denial of insurance coverage, was nevertheless preempted, because the bad faith claim was “inextricably intertwined” with the group health policy established pursuant to the collective bargaining agreement. Lueck holds that “when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract,” the claim is preempted by federal labor law, and a state law suit should be dismissed. A dictum in Lueck speaks directly to the case before us. Lueck says that “[cjlaims involving vacation or overtime pay, work assignment, unfair discharge—in short, the whole range of disputes traditionally resolved through arbitration—could be brought in the first instance in state court” were they not deemed preempted. Such state court action would “eviscerate a central tenet of federal labor-contract law under § 301, that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance.” The question in this case is the one answered by this dictum, though it is merely dictum, because Masserant’s claim is precisely that her vacation leave ought to be deemed available in May rather than December, because of state law affecting use of leave.

Though it had been implied in Lucas Flour and Lueck, the independent state claim limitation on federal preemption was articulated explicitly in Lingle v. Norge Division, An employee’s claim for wrongful discharge, under state law protecting employees from retaliatory discharge for filing workers compensation claims, was held not to be preempted. The reason was that the state law claim was “independent” of the collective bargaining agreement. All that mattered for the fired employee’s state law claim was whether she was discharged and whether the employer’s motive was to interfere with or deter filing of her workers’ compensation claim. This retaliatory discharge claim would be resolved by a “purely factual inquiry” not requiring the court to construe the collective bargaining agreement.

Livadas v. Bradshaw and Hawaiian Airlines v. Norris, from almost a quarter century ago, are our most recent guidance from the Court. They expand the independent state right exception to broad Railway Labor Act preemption.

In Livadas, a state law required an employer to pay a fired employee’s wages immediately, but company practice was to send a check from the central office, which would arrive a few days after termination. The employee filed a claim against her employer in the appropriate state agency, but the state agency, citing its nonenforcement policy, refused to enforce her claim against her employer because it would have to look to the collective bargaining agreement to determine her wage rate. The amount due was undisputed and had in fact already been paid, albeit not immediately. She filed a 1983 action against the state agency seeking a declaration that the agency’s enforcement policy was preempted by the National Labor Relations Act. We ruled that the policy was not preempted, but were reversed. The Court held that the state agency’s policy disadvantaged workers who had entered into collective bargaining agreements, since unrepresented workers could get agency enforcement, so the National Labor Relations Act antidiscrimi-nation provision preempted the state agency from refusing to enforce a claim on account of preemption. The collective bargaining agreement said nothing about when the wages due to fired employees had to be paid. The Court held that a claim under state law was not preempted because the question whether wages really were due immediately was one of state law “entirely independent” of any understanding of the collective bargaining agreement, and the amount the employee was entitled to was undisputed.

Because the collective bargaining agreement was silent, Livadas created no tension with most of the previously articulated standards: “inextricably intertwined”; requires “analysis” of the collective bargaining agreement’s terms; “independent” and “purely factual”; not requiring that anyone “construe” the agreement. Citing to Lueck and Lingle, Livadas holds that federal preemption cannot not be read so broadly as to “pre-empt nonnegotiable rights conferred on individual employees as a matter of state law,” regardless of whether the underlying facts could also have given rise to a grievance under the collective bargaining agreement. In the context of a claim where the only reference to the collective bargaining agreement would have been determination of the undisputed fact of Livadas’s wage rate, the “bare fact that a collective bargaining agreement will be consulted” though its meaning was undisputed, would not require preemption. The determination whether the employee was entitled to a penalty for not having been paid “immediately” depended only on a calendar, and was “entirely independent of any understanding embodied in the collective bargaining agreement.” The agency would merely “look to” the collective bargaining agreement for the wage rates, which was undisputed.

The other preemption case from the 1993 term, Hawaiian Airlines, Inc. v. Norris, involved an employee who claimed he was fired in violation of a state “Whis-tleblower Protection Act” because he refused to certify a plane he thought was unsafe. As in Livadas, the Court held that even though the basis for an independent state law claim could give rise to a grievance pursuant to the collective bargaining agreement, that did not imply that only a grievance could be brought, to the exclusion of a claim in state court. The “only source” of the right the fired employee sought to enforce, protection of whistle blowers, was state law. “[W]here the resolution of a state-law claim depends on an interpretation of the CBA, the claim is preempted,” but “as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement.” State law claims “entirely independent” of the collective bargaining agreement are not preempted and subject to Railway Labor Act or LMRA arbitration.

We have had quite a few opportunities in the decades since these decisions to try to apply them, and have articulated varying formulas for adjudication. In so doing, we have recognized that distinguishing preempted from non-preempted claims under state law “is not a task that always ‘lends itself to analytical precision.’ ” The fundamental question is always whether the state right is sufficiently independent of the collective bargaining agreement to avoid the broad preemption of the National Labor Relations Act and Railway Labor Act. That is a question requiring judgment about the facts and agreement in the particular case, and cannot be resolved merely by relying on one or another of the varying words and phrases in the cases: “inextricably intertwined,” “analysis of the terms,” “entirely independent,” “interpretation,” and “look to.”

We have developed, as our tool for making that unavoidable judgment, a three-step decision tree. The background is the broad preemption of the Supreme Court decisions discussed above. Our three-step decision tree says when the exception to preemption for an independent state right can be made:

[The] court must consider: (1) whether the CBA contains provisions that govern the actions giving rise to a state claim, and if so, (2) whether the state has articulated a standard sufficiently clear that the state claim can be evaluated without considering the overlapping provisions of the CBA, and (3) whether the state has shown an intent not to allow its prohibition to be altered or removed by private contract. A state law will be preempted only if the answer to the first question is “yes,” and the answer to either the second or third is “no.”

Since a “yes” answer to the first question, and a “no” to either of the other two, compels preemption, we often have not needed to address all three.

In the cases in which we identified an independent state claim that was not preempted, most frequently the dispute was the extent to which the collective bargaining agreement had to be considered to decide whether the state claim was so independent as not to be preempted. The California disability discrimination claims were not preempted in Jimeno and Espi-nal, because the collective bargaining agreement contained no general antidis-crimination clause, and the state discrimination claim could be evaluated without construing the collective bargaining agreement. In Balcorta v. Twentieth Century-Fox Film Corp., we held that a California statute requiring motion picture employees to be paid within 24 hours of discharge was not preempted, because a cursory examination of the collective bargaining agreement showed that it did not say what “discharge” meant or when a discharged employee had to be paid. The state law claim did not “require us even to refer to the collective bargaining agreement, let alone interpret it.” In Cramer v. Consolidated Freightways, Inc., a California law prohibiting two-way mirrors that allowed observation of toilets was not preempted, because the employees’ privacy claims were “not even arguably covered by the collective bargaining agreement.”

Burnside v. Kiewit Pacific Corp. perhaps goes the furthest of any of our cases in rejecting preemption, since the employees’ state law claim for additional compensation for daily meetings and travel time was addressed to some extent in the collective bargaining agreement. But state law provided that the state rule applied “unless the collective bargaining agreement expressly provides otherwise.” The union and employer could opt out of the state law rule, but the collective bargaining agreement did not expressly so provide. Thus the state rule required only a look at the collective bargaining agreement to see whether there was an express “opt-out,” and no further analysis of it was needed to adjudicate the state claim. We limited our decision: “Our decision today reaches only opt-out, not opt-in statutes.”

On the other hand, we held that the state claim was preempted in Firestone v. Southern California Gas Co. The state law claim was for overtime at time and a half, but had an exemption for collective bargaining agreements that met certain terms. Because the claim required “the collective bargaining agreement [to] be interpreted to determine ... whether California’s overtime exemption provision applies,” it was not sufficiently “independent” to avoid preemption. We distinguished Livadas because there the collective bargaining agreement had no terms that needed to be “interpreted.”

The words used to describe what distinguishes an independent state right are not talismanic, and are not consistent from case to case. The Supreme Court has used “analysis of the terms,” “construe,” requiring “interpretation,” and other phrases, and we have likewise used “consult,” “interpret,” “look at,” “analysis,” and others. We have recognized the opacity of these attempts to draw a line between independent and intertwined state claims. In Bal-corta, we called the line “hazy.” In Cramer and Burnside, we said it was not “a line that lends itself to analytical precision.”

What we wind up with from all these cases is the need to exercise judgment, not a mechanical rule. Our three part test and words and phrases establish only a “hazy” and indeterminate line between independent state rights and state rights inextricably intertwined with the collective bargaining agreement. In this case, the sounder view is that the state law right and the collective bargaining agreement are indeed inextricably intertwined.

The Washington statute says that whatever right to leave to care for family members the employee has depends on her collective bargaining agreement. We held in Burnside that “if the right exists solely as a result of the CBA, then the claim is preempted, and our analysis ends there.” In this case, the right established by state law is a right to use paid leave to take care of a sick child or other designated family members:

(1) If, under the terms of a collective bargaining agreement or employer policy applicable to an employee, the employee is entitled to sick leave or other paid time off, then an employer shall allow an employee to use any or all of the employee’s choice of sick leave or other paid time off to care for:
(a) A child of the employee with a health condition that requires treatment or supervision; or
(b) a spouse, parent, parent-in-law, or grandparent of the employee who has a serious health condition or an emergency condition.
An employee may not take advance leave until it has been earned. The employee taking leave under the circumstances described in this section must comply with the terms of the collective bargaining agreement or employer policy applicable to the leave, except for any terms relating to the choice of leave.
(2) Use of leave other than sick leave or other paid time off to care for a child, spouse, parent, parent-in-law, or grandparent under the circumstances described in this section shall be governed by the terms of the appropriate collective bargaining agreement or employer policy, as applicable.

The statute expressly limits the right it establishes to employees “entitled” to leave “under the terms of a collective bargaining agreement or employer policy.” The employee “must comply” with those terms “except for any terms relating to the choice of leave.” This dependence of the state claim on the terms of the collective bargaining agreement means that the collective bargaining agreement has to be analyzed to see whether the employee is entitled to paid leave as in Firestone. If the flight attendant is entitled to leave under the collective bargaining agreement, she can use it to care for her son when he is ill. If not, not. The statute directs us to the collective bargaining agreement to determine whether the employee is entitled to any leave.

Under the three part test, “if the right exists solely as a result of the CBA, then the claim is preempted, and our analysis ends there.” Since the statute creates no right to any kind of paid leave, and conditions its expansion of rights upon an employee entitlement under the collective bargaining agreement, “the analysis ends there.” The right to leave in this case is “substantially dependent on analysis of a collective-bargaining agreement.” Therefore it is preempted.

The union and the state agency argue that no “analysis” of the collective bargaining agreement is needed because of “the undisputed restrictions” the collective bargaining agreement places on use of pre-scheduled vacation leave. Because they do not dispute that Masserant was not entitled to use her vacation leave scheduled for December to care for her sick child in May, they argue, no analysis is necessary. They argue that because a mere “look to” the collective bargaining agreement and employer practice establishes that she is not entitled to use her December leave in May, no “analysis” is needed, so they avoid preemption under the second prong of the three part test. Whatever right she .has, they argue, arises solely out of the Washington statute.

That argument would fit a statute saying “regardless of whether an employee is entitled to paid leave under a collective bargaining agreement or employer policy, the employee is nevertheless entitled to up to ten days of leave per year to care for sick family members,” because it would establish a right independent of the collective bargaining agreement. But the Washington statute says the opposite, that the employee entitlement is conditioned upon her entitlement to paid time off under the collective bargaining agreement. She has to show an entitlement to leave under the collective bargaining agreement to use her leave to care for her sick child, according to the statute. Thus whatever right Mas-serant has cannot, by the terms of the statute, arise “solely” out of the statute.

The argument for Masserant seems to be that no “analysis” of the collective bargaining agreement is needed because it is plain and undisputed that she is not entitled to paid leave under it. That argument is mistaken for two reasons. First, it ignores the purpose of the distinction between “analysis” and mere “looking at.” The purpose is to distinguish independent state rights from rights intertwined with the collective bargaining agreement. The purpose is not to distinguish hard from easy analysis. “Analysis,” in the context of determining whether the state right is independent of the collective bargaining agreement, refers to whether the state claim cannot logically be determined independently of the provisions of the collective bargaining agreement. If the right is not logically independent, it’s not “independent,” whether the analysis is intellectually challenging or not. Otherwise, the point of the distinction, preserving a uniform meaning to the collective bargaining agreement, would be defeated. Any analysis can be made to sound simple or complex.

Second, the argument overlooks the first part of the three part test, a barrier which, if not overcome, precludes any need to ask whether the collective bargaining agreement would be analyzed in the state proceeding. Preemption applies because the right to take paid leave arises solely from the collective bargaining agreement. This statute only applies if the employee has a right conferred by the collective bargaining agreement, so the state right is intertwined with, and not independent of the collective bargaining agreement.

Our dissenting colleague relies heavily on our recent decision in Kobold, but, as Kobold says, that case was “similar to Livadas in all pertinent respects” because the outcome was controlled by the calendar, not the collective bargaining agreement. Kobold did not expand Railway Labor Act preemption. The Oregon statute required the employer to pay the deducted amount within seven, days of when the wages were due. “Seven days” could be counted out on a calendar and needed no analysis of the collective bargaining agreement. Likewise, Kobold held that the breach of fiduciary duty claim, relying on two Oregon statutes, was not preempted because “[t]he statutory provisions create and impose duties on an employer independent of a CBA.” By contrast, the Washington statute at issue in this ease creates a duty conditioned and dependent on the collective bargaining agreement.

Preemption of course does not mean that Masserant was not entitled to use her December vacation time in May to care for her son. All it means is that the question whether she could use her vacation leave in advance of her scheduled time for this purpose is to be determined by the dispute resolution process in the collective bargaining agreement, not by the state claim resolution process. All we decide is which dispute resolution process must be used, not what result it must reach.

The district court erred by rejecting preemption. Accordingly, we reverse and remand for appropriate resolution so that the dispute can be resolved by the process established in the collective bargaining agreement.

REVERSED AND REMANDED.

CHRISTEN, Circuit Judge,

dissenting:

The district court recognized that the underlying issue in Masserant’s claim is not what benefits the collective bargaining agreement provides, it is whether the terms of the parties’ CBA violate the Washington Family Care Act. Masserant argues that the WFCA creates “non-negotiable rights” that Alaska Airlines and AFA could not bargain away. To resolve Masserant’s claim, the CBA need not be interpreted. The parties agree that the CBA identifies circumstances under which accrued and scheduled leave may be used, and using scheduled leave to care for an employee’s sick child is not one of those circumstances. In my view, the district court correctly ruled that the right Mas-serant asserts arises from the WFCA, if it exists at all. Masserant’s claim is not dependent upon the CBA; it is not preempted; and she should be allowed to pursue it in the state administrative and judicial process. For these reasons, I respectfully dissent.

I. Masserant’s claim is not preempted by the Railway Labor Act.

Masserant filed a Personal Leave Complaint with the Washington Department of Labor & Industries in which she argued that the terms of the parties’ CBA violate the WFCA. She prevailed at the first level of the Department’s administrative process and the Department issued a $200 notice of infraction to Alaska Airlines for denying her leave request. Alaska Airlines filed this action in federal court seeking a declaration that Masserant’s claim and the WFCA choice-of-leave provisions are preempted by the Railway Labor Act (RLA). See 45 U.S.C. § 151-188; Wash. Rev. Code § 49.12.265-.295. The district court agreed with Masserant, her union, and the Department of Labor & Industries that the RLA does not preempt state enforcement of the WFCA because Masserant’s WFCA claims are independent of the parties’ CBA.

On appeal to our court, Alaska Airlines argues that the RLA requires Masserant to litigate her dispute via the mandatory grievance procedures outlined in the CBA, rather than through state administrative procedures. The RLA requires that minor disputes, such as the one at issue here, must first be addressed in the carrier’s internal dispute resolution process and, if not resolved there, presented to an Adjustment Board comprised of workers and management. See 45 U.S.C. § 184; Atchi son, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 563, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). The RLA preempts state law claims that interfere with the Adjustment Board’s exclusive jurisdiction to resolve minor disputes. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253, 114 act 2239, 129 L.Ed.2d 203 (1994). If a claim is based on rights independently conferred by state law, not by a CBA, it is not preempted. See Livadas v. Bradshaw, 512 U.S. 107, 125, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994); Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). We examine Masserant’s claim closely because the Supreme Court has cautioned that federal laws “cannot be read broadly to preempt nonnegotiable rights conferred on individual employees as a matter of state law.” Livadas, 512 U.S. at 123, 114 S.Ct. 2068.

In Burnside v. Kiewit Pacific Corp., our court articulated a two-part test for determining whether a state law claim that appears to implicate a collective bargaining agreement is preempted by § 301 of the Labor Management Relations Act (LMRA). See 491 F.3d 1053. The Burnside test is critical to the outcome of this appeal because the Supreme Court has held that the preemption standard under LMRA § 301 is the same one that applies to the RLA. See Hawaiian Airlines, 512 U.S. at 260, 114 S.Ct. 2239. Under Burnside, the court first inquires whether the asserted cause of action involves a right conferred on the employee by virtue of state law or by the terms of a CBA. Burnside, 491 F.3d at 1059. “If the right exists solely as a result of the CBA, then the claim is preempted, [] our analysis ends there,” and the claim must be resolved under the RLA’s mandatory arbitral mechanisms. Id; see Hawaiian Airlines, 512 U.S. at 252, 114 S.Ct. 2239 (“[Claims preempted under the RLA] must be resolved only through the RLA mechanisms, including the carrier’s internal dispute-resolution processes and an adjustment board established by the employer and the unions.”). Even if the asserted right does exist independently of the CBA, at step two the court must “consider whether it is nevertheless ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” Burnside, 491 F.3d at 1059 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). Claims that are substantially dependent on an analysis of a CBA are also preempted. Id. at 1060.

This court recently explained the policies underlying Burnside's two-part test:

The Burnside factors reflect two driving concerns of preemption doctrine: first, preventing “parties’ efforts to renege on their arbitration promises by ‘relabeling’ as tort suits actions simply alleging breaches of duties assumed in collective-bargaining agreements,” Livadas, 512 U.S. at 123, 114 S.Ct. 2068, and second, preserving “a central tenet of federal labor-contract law ... that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance,” Lueck, 471 U.S. at 220, 105 S.Ct. 1904.

Kobold v. Good Samaritan Reg'l Med. Ctr., 832 F.3d 1024, 1033 (9th Cir. 2016). Masserant’s claim implicates neither of the aforementioned concerns: she does not claim under the guise of a tort lawsuit that Alaska Airlines breached its contract with her, nor does she ask the court to interpret her CBA.

A. Masserant’s complaint with the Department of Labor & Industries involves a right that exists, if at all, by virtue of state law.

Burnside made clear that the operative inquiry at the first step of this preemption analysis is whether the right at issue is conferred by state law or by the CBA. See Burnside, 491 F.3d at 1059. “[T]o determine whether a particular right inheres in state law,” courts “consider ‘the legal character of [the] claim, as independent of rights under the collective-bargaining agreement [and] not whether a grievance arising from precisely the same set of facts could be pursued.’” Id. at 1060 (second alteration in original) (quoting Livadas, 512 U.S. at 123, 114 S.Ct. 2068).

It is easy to imagine another similarly situated flight attendant who might be bound to arbitration, such as an employee who contests whether she had accrued the leave at issue. Because the CBA determines how available leave should be calculated, this hypothetical flight attendant’s asserted right would arise from the CBA, and, at step one our analysis would end. See Burnside, 491 F.3d at 1059. Masser-ant’s claim is different because she asserts a different right, and to apply the Bum-side test properly, it is critical to identify the precise right asserted. Masserant pre-scheduled her accrued vacation leave for December, but sought to use it early to care for her sick child. She claims the right to use accrued leave in a certain way, not the right to additional accrued leave. Notably, Alaska Airlines does not dispute that Masserant’s leave had accrued; it objects to Masserant’s insistence that she should be free to reschedule it. The district court recognized that the right at issue is the right to use accrued leave, as do the parties. Masserant describes her claim as a violation of the WFCA based on “earned time that [she] was denied to use [by Alaska Airlines]”; Alaska Airlines acknowledges that the asserted right is Masser-ant’s “claimed right to reschedule her December vacation days for May”; and the Department of Labor & Industries frames the question as whether the WFCA “confers an independent statutory right of flexibility that is superimposed on whatever leave is available to an employee under a collective bargaining agreement or employer policy.”

The majority concludes that Masserant asserts a right that is not independent from the CBA because “the [WFCA] creates no right to any kind of paid leave, and conditions its expansion of rights upon an employee entitlement under the collective bargaining agreement.” Because Masser-ant does not argue that the WFCA creates a right to paid leave, or claim to be entitled to additional leave, or even that she is entitled to use her accrued leave early under the terms of the CBA, the court’s reasoning misses the mark. Masserant asserts the right to use her accrued vacation leave as family medical leave, a right that might arise from the statutory protections within the WFCA, but one that certainly is not provided by the CBA.

The majority reasons that because the WFCA refers to leave provided under the terms of a CBA, “whatever right Masser-ant has cannot, by the terms of the statute, arise ‘solely’ out of the statute.” But under Burnside’s first step, the question is whether the asserted right “exists independently of the CBA,” not whether it arises solely out of statute. Burnside, 491 F.3d at 1059 (“If the right exists solely as a result of the CBA, then the claim is preempted, and our analysis ends there.”). A claim is not preempted just because it is based on a state statute that refers to rights included in a CBA. For example, in Liradas, the Supreme Court concluded that LMRA § 301 did not preempt a claim challenging an employer’s failure to promptly pay wages at the time of severance. 512 U.S. at 125, 114 S.Ct. 2068. The court recognized that the employee’s right to be paid arose from the CBA, but because the employee contested the failure to pay severance wages promptly, and the right to prompt payment was afforded only by the state statute, the claim was not preempted. Id. (holding the right at issue arose out of state law because “[bjeyond the simple need to refer to bargained-for wage rates in computing the penalty, the collective-bargaining agreement [wa]s irrelevant to the dispute”).

Our recent decision in Kobold supports Masserant’s position. See 832 F.3d 1024. In one of the appeals consolidated in Kobold, the court addressed an Oregon statute that permitted employers to deduct a portion of employees’ wages as health insurance premiums if authorized to do so by a CBA. Id. at 1037-42. The statute made such deductions unlawful if the funds were not properly applied to pay insurance premiums within the time specified by the CBA or, if the CBA was silent, within the statutory limit of seven days.. Id. at 1038. The allegation in Kobold was that the employer failed to transmit the withheld insurance premiums to the health insurance plan in a timely manner. Id. at 1037. Our court held that the claim was not preempted, even though the CBA provided for this type of pay deduction, because the asserted claim was for the failure to remit the deductions in a timely manner, and. only the statute specified a seven-day limitation for transmitting the withheld premiums. Id. at 1040. The CBA did not specify a time period. Id, Our court also held that the Kobold plaintiffs breach of fiduciary duty claim was not preempted because the Oregon statute governing such claims “create[d] and impose[d] duties on an employer independent of a CBA.” Id. at 1041. In contrast, the Kobold court ruled that the same plaintiffs claim for money had and received was preempted, because “[the employer’s] authority to deduct funds from [the plaintiffs] paychecks and [the plaintiffs] right to have those funds applied toward his health insurance premiums” were based' on the CBA and without the CBA, the plaintiff “would have no basis upon which to bring the money had and received claim.” Id.

It is not enough that a CBA refers to a right that is provided by statute. Our court has held that a claim based on a statutorily guaranteed right is not preempted, even when the CBA generally provides for a similar right. See Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102 (9th Cir. 2000). In Balcorta, we held that a California law requiring employers to pay certain employees in the film industry within twenty-four hours of their discharge was not preempted by LMRA § 301. Id. The right to payment and the timeliness of the payments were addressed by the CBA, but we concluded the claim for failure to tender payment within twenty-four hours was not preempted because “whether a violation has occurred is controlled only by the provisions of the state statute and does not turn on whether the payment was timely under the provisions of the collective bargaining agreement.” Id. at 1111; see also Valles v. Ivy Hill Corp., 410 F.3d 1071, 1082 (9th Cir. 2005) (holding claim was not preempted where it was based on a statutorily guaranteed right to work-free meal periods- even though the CBA- purported to waive the right to work-free meal periods).

Like the rights at issue in Livadas, Ko-bold, and Balcorta, if Masserant has the right to use her vacation' time for family leave, it arises from a state statute, here, the WFCA, and not from the parties’ CBA.

B. The right Masserant asserts is not substantially dependent on analysis of the CBA.

The second step of the Burnside analysis requires a “determinfetion] whether a state law right is ‘substantially dependent’ on the terms of a CBA.” Burnside, 491 F.3d at 1060 (citation omitted). To apply this part of the test, a court must “decide whether the claim can be resolved by ‘looking] to’ versus interpreting the CBA.” Id. (alteration in original) (citation omitted). The line between “looking to” and “interpreting” is sometimes less than clear-cut, but “ ‘when the meaning of contract terms is not the subject of dispute, the bare fact that a [CBA] will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.’” Id. (alteration in original) (quoting Livadas, 512 U.S. at 125, 114 S.Ct. 2068); see Hawaiian Airlines, 512 U.S. at 262, 114 S.Ct. 2239 (“[A]s long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for ... pre-emption purposes.” (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 408-10, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988))).

In Kobold, where the state law required employers to transmit paycheck deductions to health insurance plans in a timely manner, we held that the claim was not preempted at Burnside’s second step because the CBA “unambiguously specif[ied]” the parties’ rights and obligations and therefore did not require interpretation. 832 F.3d at 1040; see also Balcorta, 208 F.3d at 1109-10 (holding claim not preempted where court is required to “read and apply” CBA provisions that are “neither uncertain nor ambiguous”). In Matson v. United Parcel Service, Inc., 840 F.3d 1126 (9th Cir. 2016), we held that a hostile work environment claim only “peripheral[ly]” involved the CBA and was not preempted because no interpretation of the CBA was required. Id. at 1134-35. Matson involved an employee who claimed that she was subject to a hostile work environment, in part because her supervisors assigned “extra work” in a way that favored male co-workers. Id. at 1129. The employer argued that the employee’s claim was preempted because the term “extra work” appeared in the CBA and her claim could not be resolved without interpreting the term. Id. at 1133. But the employee’s hostile work environment claim was not dependent upon consideration of the extra work assignments because her contention that extra work was disproportionately assigned to male coworkers was just one example of ways in which the employee argued her male coworkers were favored. Id. We explained that the hostile work environment claim was not preempted at Burnside’s, second step because “[t]he correct interpretation of the CBA ... [was] purely peripheral to the relevant question with respect to assigning work.” Id. at 1134-35.

In Masserant’s case, the key provisions of the CBA are also wholly undisputed and do not require interpretation. As of May 2011, when her child was ill, Masserant had an accrued paid vacation scheduled for December. The CBA permits vacation leave to be used at unscheduled times in certain circumstances, but does not address whether vacation leave may be used for an absence due to a flight attendant’s own illness or a child’s illness. Because “[t]here is nothing in the ... CBA to interpret,” the WFCA’s state-law right is not substantially dependent on the CBA. See Kobold, 832 F.3d at 1040.

The majority concludes that because Masserant refers to the CBA’s leave provision to argue that it violates the WFCA, some “analysis” is required. But it does not explain why the CBA must be consulted, much less analyzed. On this record, I conclude that Masserant’s claim does not “substantially depend” on analysis of the CBA, and that it is not preempted under the second pronj* of Burnside.

There is persuasive force to Alaska’s argument that “crew absences present unique concerns in the airline industry,” because “without the requisite number of flight attendants on board, a plane cannot take off.” But the limited question before this panel is the proper forum for resolving the important underlying questions raised by Masserant’s claim. I would hold only that the district court correctly concluded that the Washington Department of Labor & Industries’ enforcement of Mas-serant’s WFCA complaint is not preempted by the RLA, and that the correct forum for resolving the parties’ dispute is the state administrative process.

      . Wash. Rev. Code § 49.12.270(1):
      If, under the terms of a collective bargaining agreement or employer policy applicable to an employee, the employee is entitled to sick leave or other paid time off, then an employer shall allow an employee to use any or all of the employee’s choice of sick leave or other paid time off to care for: (a) A child of the employee with a health condition that requires treatment or supervision; or
      (b) a spouse, parent, parent-in-law, or grandparent of the employee who has a serious health condition or an emergency condition.
      An employee may not take advance leave until it has been earned. The employee taking leave under the circumstances described in this section must comply with the terms of the collective bargaining agreement or employer policy applicable to the leave, except for any terms relating to the choice of leave.

      . "Sick leave may be used ... pursuant to applicable State law and/or Company policy- Pursuant to Company policy, no attendance points are assessed for an absence called in for a sick child (zero points per day),”

      . "Whenever the new collective-bargaining refers to a sick child, it is understood that this is a placeholder for ‘family member.' With the Association’s agreement, the Company will apply the most liberal of the laws of the states in which Flight Attendants are domiciled in determining the appropriate definition of 'family member.' When this definition is determined, including any subsequent amendments pursuant to changes in law or in the interpretation of the law, the company will publish the definition and distribute it to the Flight Attendants.”

      . “In all cases of absence, a Flight Attendant will be required to call the designated Company representative,”

      . "Sick calls must be made to the designated Company representative at least two (2) hours prior to check-in (3 hours prior to scheduled departure)."

      . For example, a "No Show” equals 2 1/2 points, a "Reported Illness Using Quarterly Point Reduction” equals 0 points, a "Reported illness after or without Using Quarterly Point Reduction” equals between 1/2 and 2 1/2 points, and an "Emergency Drop” equals 1/2 point.

      . "For each calendar quarter during which a Flight Attendant is active for the entire quarter and has no chargeable occurrences during the entire quarter, two (2) points will be deleted from the Flight Attendant’s accumulated points until the total reaches zero (0). Time on leave of absence will not be counted toward record improvement.”

      . "0-4 1/2 [points]: No action taken.”

      . Espinal v. Nw. Airlines, 90 F.3d 1452, 1455 (9th Cir. 1996).

      . Thurman W. Arnold, The Symbols of Government 101 (1935) (attributed to Thomas Reed Powell).

      . "Sick leave may be used ... pursuant to applicable State law.”

      . Aircraft Serv. Int’l, Inc. v. Int’l Bhd. of Teamsters, 779 F.3d 1069, 1073 (9th Cir. 2015) (en banc) (quoting 45 U.S.C. § 151a) (internal quotation marks omitted) (alternation in the original).

      . 45 U.S.C. § 152, First.

      . Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 248, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994).

      . Aircraft Serv., 779 F.3d at 1073 (citing Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R., 353 U.S. 30, 40, 77, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957) (emphasis added)).

      . Fennessy v. Southwest Airlines, 91 F.3d 1359, 1363 (9th Cir. 1996) (emphasis in original) (quoting Lewy v. Southern Pac. Transp. Co., 799 F.2d 1281, 1289 (9th Cir. 1986)).

      . Norris, 512 U.S. at 248, 114 S.Ct. 2239 (quoting 45 U.S.C. § 153, First).

      . See Consol. Rail Corp. v. Ry. Labor Execs. Ass’n., 491 U.S. 299, 302, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989) (quoting Elgin, Joliet & E. Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945)).

      . Norris, 512 U.S. at 255, 114 S.Ct. 2239.

      . 45 U.S.C. § 184.

      . 45 U.S.C. § 151a(4)-(5).

      . 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962).

      . Id. at 103-04, 82 S.Ct. 571.

      . 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985).

      . Id. at 220, 105 S.Ct. 1904.

      . Id. at 219-20, 105 S.Ct. 1904.

      . Id. at 220, 105 S.Ct. 1904.

      . Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).

      . Id. at 401, 108 S.Ct. 1877.

      . Id. at 407-10, 108 S.Ct. 1877.

      . Id. at 407, 108 S.Ct. 1877.

      . Id.

      . 512 U.S. 107, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994).

      . 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994).

      . Livadas, 512 U.S. at 111, 114 S.Ct, 2068.

      . Id. at 112-13, 114 S.Ct. 2068.

      . Id. at 113-14, 114 S.Ct. 2068.

      . Id. at 111-12, 114 S.Ct. 2068.

      . Livadas v. Aubry, 987 F.2d 552, 559-60 (9th Cir. 1991).

      . Livadas, 512 U.S. at 110, 114 S.Ct. 2068.

      . Id. at 128-30, 114 S.Ct. 2068.

      . Id. at 124-25, 114 S.Ct. 2068.

      . Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985).

      . Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).

      . Livadas, 512 U.S. at 123, 114 S.Ct. 2068.

      . Id. at 124, 114 S.Ct. 2068.

      . Id. at 125, 114 S.Ct. 2068.

      . Id. (citing Lingle, 486 U.S. at 413 n.12, 108 S.Ct. 1877).

      . 512 U.S. 246, 249-51, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994).

      . Id. at 261, 114 S.Ct. 2239 C[T]he existence of a potential CBA-based remedy d[oes] not deprive an employee of independent remedies available under state law.”).

      . Id. at 258, 114 S.Ct. 2239 (quoting Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 324, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972)).

      . Id. at 261, 114 S.Ct. 2239.

      . Id. at 262, 114 S.Ct. 2239 (quoting Lingle, 486 U.S. at 408-10, 108 S.Ct. 1877 (1988)).

      . Id. at 259 & n.10, 114 S.Ct. 2239.

      . Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1060 (9th Cir. 2007) (quoting Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689 (9th Cir. 2001) (en banc)).

        . Miller v. AT&T Network Sys., 850 F.2d 543, 548 (9th Cir. 1988) (footnote omitted); see also Espinal v. Nw. Airlines, 90 F.3d 1452, 1457 (9th Cir. 1996) (quoting the Miller standard); Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1523 (9th Cir. 1995) (same); Cook v. Lindsay Olive Growers, 911 F.2d 233, 240 (9th Cir. 1990) (same).

      . Espinal v. Nw. Airlines, 90 F.3d 1452, 1457 (9th Cir. 1996); Jimeno, 66 F.3d at 1524.

      . 208 F.3d 1102 (9th Cir. 2000).

      . Id. at 1111.

      . 255 F.3d 683, 688 (9th Cir. 2000) (en banc).

      . 491 F.3d 1053 (9th Cir. 2007).

      . Id. at 1062 (emphasis added).

      . Id. at 1064 n.11.

      . 219 F.3d 1063 (9th Cir. 2000).

      . Id. at 1066.

      . Id. at 1066-68.

      . Id. at 1067.

      . Many cases also tell us that we may not allow the scope of preemption to grow from an “acorn” into a “mighty oak.” See, e.g., Livadas v. Bradshaw, 512 U.S. 107, 122, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1076 (9th Cir. 2005).

      . Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000) (quoting Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 749 (9th Cir. 1993)).

      . Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001) (en banc); see Burnside v. Kiewit Pacific Corp., 491 F.3d 1053, 1060 (9th Cir. 2007) (quoting Cramer, 255 F.3d at 691).

      . Burnside, 491 F.3d at 1059.

      . Wash. Rev. Code § 49.12.270.

      . Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007).

        . Id. at 1059 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)); see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985).

      . 832 F.3d 1024 (9th Cir. 2016).

      . Id. at 1040.

      . Id.

      . Id. at 1041.

      . The RLA divides labor disputes into "major” and "minor” disputes. Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562-64, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). “Major disputes” are "those arising 'out of the formation or change of collective bargaining agreements.’ ” Id. at 563, 107 S.Ct. 1410 (quoting Detroit & T.S.L.R. Co. v. Transp. Union, 396 U.S. 142, 145 n.5, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969)). “Minor disputes” are those " ‘growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.’ ” Id. (quoting 45 U.S.C. § 153). The parties agree that only the minor dispute procedures are relevant to this appeal.

      . The Supreme Court has cautioned that this preemption analysis must be conducted on a case-by-base basis. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) ("The full scope of the pre-emptive effect of federal labor-contract law remains to be fleshed out on a case-by-case basis.”); see Adkins v. Míreles, 526 F.3d 531, 541 (9th Cir. 2008).

      . Although the majority analyzes Masserant’s claim in the context of Burnside’s step two, it ultimately relies on step one to conclude that Masserant’s claim is preempted.


source: Caselaw Access Project

author: MURPHY, Circuit Judge. BRISCOE, Circuit Judge,

license: Public Domain

text:
    Ting XUE, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.
    No. 15-9540
    United States Court of Appeals, Tenth Circuit.
    FILED November 25, 2016
    As Revised January 23, 2017 nunc pro tunc to November 25, 2016
    Panel Rehearing and Rehearing En Banc Denied January 23, 2017

      David J. Feder, Munger, Tolies & Olson LLP, Los Angeles, California, for Petitioner.
    Allison Frayer, Trial Attorney (M. Jocelyn Lopez Wright, Senior Litigation Counsel, and Melissa Neiman-Kelting, Senior Litigation Counsel, with her on the briefs), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.
    Before BRISCOE, MURPHY, and PHILLIPS, Circuit Judges.
   ORDER

This matter is before the court on Respondent Loretta E. Lynch’s unopposed Motion to Amend the Decision and Petitioner Ting Xue’s Petition for Panel Rehearing and Rehearing En Banc.

The panel grants the Respondent’s unopposed Motion to Amend and, thereby, replaces the phrase “clear error” with the phrase “substantial evidence” in the first and third sentences on page four of the slip opinion and the final sentence of footnote ten. A copy of the revised opinion, filed nunc pro tunc to the original filing date of November 25, 2016, is attached to this order.

Petitioner Xue’s Petition for Panel Rehearing is denied. The request for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular, active service on the court requested that the court be polled, that request is also denied.

Judges Matheson and Gorsuch are re-cused.

MURPHY, Circuit Judge.

Ting Xue, a native and citizen of China, petitions for review of an order by the Board of Immigration Appeals (“BIA”). The BIA affirmed an Immigration Judge’s (“IJ”) decision to deny Xue’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Exercising jurisdiction pursuant to 8 U.S.C. § 1252, this court denies Xue’s petition for review.

I. Background

A, Factual Background

Xue is a long-practicing, faithful Christian. He was raised as a Christian by his mother and was baptized in 1998 when he was thirteen years old. Xue attended services two or three times a week at an illegal “house church.” In light of the need to avoid detection by government officials, the house church Xue attended gathered at a different member’s house each week. Despite this precaution, on Friday, October 26, 2007, Chinese authorities raided a house church service attended by Xue. The authorities arrested everyone in attendance and took them to the police station.

At the police station, each church member faced interrogation. In the interrogation room, two police officers sat behind a table facing Xue and another officer stood behind him. Officers questioned Xue as to his personal/biographical information and sought information regarding the organization and leadership of the house church. After Xue persisted in responding that there was no organizer of the house church, officers slapped Xue across the head and used a baton to hit Xue on his upper ieft arm. Because he was extremely frightened, all Xue could do was continuously repeat that he did not know the answers to the officers’ questions.

After the interrogation ended, the officers placed Xue in a small, dim jail cell with four other men from his house church. The five men shared a single wooden bucket for a toilet—a bucket not emptied during Xue’s entire incarceration. Officers routinely mocked Xue and his cell mates, referring to themselves as the prisoners’ “God,” claiming the power to refuse to feed them, and taunting them to call on Jesus for rescue. The prisoners were fed a bowl of porridge twice a day. Sometimes before they were fed, the officers forced the prisoners to sing the national anthem to ridicule the prisoners’ habit of praying before eating. Xue remained in custody for three days and four nights.

Xue was released from imprisonment only after his mother paid a significant fine. That is, although Xue’s entire yearly salary, at the shoe factory was 25,000 yuan, the fine paid by Xue’s mother to secure his release was 15,000 yuan. Upon his release, he was forced to sign a document guaranteeing he would not attend any more illegal church meetings. Officers warned Xue that if he ever again attended services at a house church, he would be severely punished. Xue was required to report to the police station once every week and remain for one hour. During these weekly sessions, officers would ask Xue about his whereabouts during the week, tell him he should be patriotic and faithful to his job, and force him to write down his personal feelings about his reeducation.

Two weeks after his release, Xue returned to his underground house church. Police officers again raided Friday youth services at Xue’s house church in December 2007. Xue, who was working overtime at his job at a shoe factory, was not present during the raid. Everybody present at the house church during the second raid was arrested. Xue learned that all repeat offenders arrested during the second raid were prohibited from posting bond and were eventually sentenced to imprisonment for a term of one year.

Xue testified he became fearful officers would learn he had continued to attend the house church, even though he was not present dui’ing the second raid. Because of these concerns, Xue’s mother counseled him to stop reporting to the police station. Xue’s mother sent him to stay at his aunt’s house, a location ten hours away by bus. Xue remained at his aunt’s residence for three months without returning home. When Xue failed to appear at the police station as required by the terms of his release from jail, officers came to his parents’ house looking for him. Xue’s mother told him the officers asked why he had failed to report as required and stated he needed to immediately report or he would be severely punished. Rather than returning home and resuming his weekly visits to the police station, Xue and his parents decided he should leave China. Xue’s six uncles paid an exceedingly large amount of money to a smuggler to help Xue escape China. In March 2008, Xue left China using his own passport. He traveled for several months, ultimately entering the United States illegally through Mexico in July 2008.

In addition to the testimony summarized above, Xue related that his mother continues to attend unregistered church services and his father and brother sometimes also attend those services. Although Xue’s mother began hosting a weekly church meeting at her own home in 2010, she has never been arrested.

B. Agency Decision

An IJ denied Xue’s request for asylum, •withholding of removal, and relief under CAT. As to asylum, the IJ found Xue’s testimony credible but insufficient to establish refugee status. See 8 U.S.C. § 1158(b)(1)(B) (imposing on an asylum seeker the burden of establishing an entitlement to relief). The IJ concluded Xue’s treatment at the hands of Chinese authorities before he came to the United States was not sufficiently severe to amount to past persecution. Cf. Hayrapetyan v. Mukasey, 534 F.3d 1330, 1337 (10th Cir. 2008) (“[Pjersecution requires the infliction of suffering or harm ... in a way regarded as offensive and must entail more than just restrictions or threats to life or liberty.” (quotation omitted)). Absent a showing of past persecution, the IJ recognized Xue was not entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1)-(2). Instead, Xue was obligated to independently establish the existence of a reasonable possibility he would suffer future persecution upon return to China. See id. The IJ determined Xue could not make the necessary showing given that his mother held house church meetings in her residence without incident over the previous three years. Furthermore, the IJ found the letters Xue submitted from his mother failed to demonstrate Xue would be specifically targeted for persecution if he returned to China. Because Xue failed to demonstrate his entitlement to relief under the asylum standard, the IJ concluded Xue also failed to meet the more stringent standard of proof applicable to a request for withholding of removal. Finally, because Xue had alleged neither past torture nor asserted a fear of torture in the future, the IJ concluded Xue was not entitled to relief under CAT. See 8 C.F.R. §§ 208.13(c), 208.18(a).

In a brief order, a single member of the BIA reviewed and affirmed the IJ’s denial of asylum, withholding of removal, and relief under CAT. See 8 C.F.R. § 1003.1(e)(5) (empowering a single member of the BIA to resolve certain appeals in “a brief order”). When the BIA reviews an IJ’s decision under the provisions of § 1003.1(e)(5), it is the BIA’s decision “that constitutes the final order of removal under 8 U.S.C. § 1252(a).” Umreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “Accordingly, in deference to the agency’s own procedures, we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance.” Id. In its order, the BIA affirmed the IJ’s finding that Xue’s testimony was credible. Nevertheless, like the IJ, the BIA concluded Xue’s testimony was insufficient to carry his burden of establishing he was subjected to past persecution or there was a reasonable possibility he would, upon being returned to China, be subjected to persecution in the future. Because Xue could not satisfy the less rigorous standard for relief required for asylum seekers, and because he had not alleged past torture or a fear of future torture, the BIA concluded Xue’s claims for withholding of removal and relief under CAT likewise failed.

II. Discussion

A. Standard of Review

1. Binding Tenth Circuit Precedent

This court reviews “the BIA’s legal determinations de novo, and its findings of fact under a substantial-evidence standard.” Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). “The administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). This court has made clear that “the ultimate determination whether an alien has demonstrated persecution is a question of fact, even if the underlying factual circumstances are not in dispute and the only issue is whether those circumstances qualify as persecution.” Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008).

Xue has not challenged the correctness of Vicente-Elias and, in any event, this panel is bound by that decision. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”). Accordingly, in resolving Xue’s appeal, this court applies the standard of review set out in Vicente-Elias.

2, Existence of Persecution as a Question of Fact

Despite the parties’ failure to recognize the issue, there is serious reason to question whether this court should treat the BIA’s ultimate determination as to the existence of persecution (i.e., whether a given set of facts amounts to persecution) as factual in nature. The BIA’s own regulations prohibit it from reviewing an IJ’s factual determinations de novo. “Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv). In the context of asylum cases, the BIA has emphasized that the prohibitions set out in § 1003.1(d)(3)(i) and (iv) apply only to questions of historical fact. In re A-S-B-, 24 I. & N. Dec. 493, 496-97 (BIA May 8, 2008), overruled in part on other grounds by, In re Z-Z-O-, 26 I. & N. Dec. 586, 589-91 (BIA May 26, 2015). To be clear, the BIA has specifically determined that the ultimate resolution whether a given set of facts amount to persecution is a question of law reviewed de novo. There is nothing in the record indicating the BIA deviated from this course of de novo review in evaluating whether Xue had demonstrated past persecution, as the BIA’s order merely recites that it reviewed the IJ’s findings of fact and credibility determinations for clear error and reviewed de novo all other issues.

It is certainly odd, to say the least, for this court to review for substantial evidence a determination the BIA itself has concluded is legal in nature. This is especially true when the BIA’s governing regulations forbid it from engaging in fact-finding. It is presumably for this reason that the statute empowering review of asylum rulings in the circuit courts of appeals does not contemplate the application of a substantial evidence standard to any determinations that are not factual in nature. 8 U.S.C. § 1252(b)(4)(B). Unless the BIA’s decision in In re A-S-B- is wrong, it appears entirely likely this court should be treating BIA decisions on the ultimate question of the existence of persecution as legal in nature. See generally Castellanos-Pineda v. Holder, 537 Fed.Appx. 797, 800 (10th Cir. 2013) (recognizing tension between review standard set out in In re AS-B- and this court’s decision in Vicente-Elias, but concluding it was unnecessary to address the issue because petitioner failed to exhaust her merits claim before the BIA). Alternatively, even assuming the determination whether a given set of facts amounts to persecution could properly be labeled a factual determination, the review structure set out by the BIA in In re A-S-B- and In re Z-Z-O- is at odds with the rule set out in 8 C.F.R. § 1003.1(d)(3)(i). That is, if the issue is factual in nature, § 1003.1(d)(3)(i) mandates review by the BIA under the clear-error standard. The failure of the BIA to apply the correct standard of review on appeal from the decision of an IJ is, itself, a legal error requiring remand for additional proceedings. See Kabba v. Mukasey, 530 F.3d 1239, 1244-45 (10th Cir. 2008) (holding question whether BIA applied correct standard of review is legal in nature, and therefore subject to de novo review, and concluding BIA erred because it reviewed an IJ’s credibility determinations de novo). As noted above, however, Xue did not raise this issue on appeal. Thus, we leave the matter for a future case in which the parties have presented the court with appropriate briefing.

B. Asylum

The Attorney General has discretion to grant asylum to a person who qualifies as a “refugee.” 8 U.S.C. § 1158(b). A refugee is a person unable or unwilling to return to his country of nationality because of past persecution or a well-founded fear of future persecution on account of, inter alia, religion. Id. § 1101(a)(42)(A). The term “persecution” is not defined in the Immigration and Nationality Act. Balazoski v. INS, 932 F.2d 638, 641-42 (7th Cir. 1991). Nevertheless, this court has “observed that it requires the infliction of suffering ... in a way regarded as offensive and requires more than just restrictions or threats to life and liberty.” Hayrapetyan, 534 F.3d at 1337.

1. Past Persecution

In concluding he did not suffer past persecution, the BIA explained that “[although [Xue] was detained for [four] nights, [he] was physically harmed only once, and he did not testify that he required medical treatment or suffered any lasting physical effects as a result of his detention.” The BIA rejected Xue’s assertion that restrictions on his freedom and the practice of his religion in the form of the guarantee letter and requirement to report weekly to the police station, when added to the harm of his detention, established persecution. As the BIA explained, “[Xue] testified that he returned to the underground church [two] weeks after being released, and did not demonstrate that the reporting requirement was onerous or that he suffered other harm.”

On appeal, Xue contests the BIA’s determination by asserting it is reasonably subject to debate and several circuits have held that conduct similar to that at issue here qualifies as persecution. See, e.g., Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (“The BIA must ... be keenly sensitive to the fact that a ‘minor beating’ or, for that matter, any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground.”). He further contends that none of the Tenth Circuit cases identified by the BIA compel the result reached by the agency. Xue’s argument as to the existence of past persecution is not convincing. Xue’s arguments in this regard misunderstand the governing standard of review. To prevail on appeal, Xue must show that a reasonable factfinder would be compelled to conclude he suffered past persecution. Vicente-Elias, 532 F.3d at 1091. Xue fails to make the required showing. The BIA’s “finding,” see id. is supported by both substantial evidence and by this court’s precedents.

According to his testimony, Xue was arrested and detained in cramped, dark, and unsanitary'conditions for four nights and three days. He was fed a bowl of porridge twice a day. He was interrogated once, during which time he was hit on the back of his head with an officer’s hand, and then struck on his arm with an officer’s baton. Xue did not testify that he required medical treatment, or even that he was in significant pain, He also did not claim he experienced any lasting problems as a result of his detention. Xue’s family paid a significant fine to secure his release and Xue promised to report to the police station weekly and refrain from attending Christian services at an unregistered church. When he reported as requested for questioning, he did not suffer any physical mistreatment. As noted above, this court has previously determined that similar fact situations did not compel a finding of past persecution. Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009); Kapcia v. INS, 944 F.2d 702, 704, 708 (10th Cir. 1991). Nevertheless, Xue has not identified a single case concluding a similar level of harassment (i.e., incarceration lasting no more than four days coupled with a single incident of physical abuse amounting to two separate blows which did not inflict serious pain) compels a finding of persecution. Indeed, this court has consistently concluded that this type of evidence does not compel a finding of past persecution. See, e.g., Witjaksono, 573 F.3d at 977 (affirming BIA finding that alien had not suffered past persecution when evidence showed soldier physically assaulted alien on one occasion and alien suffered minor injuries that did not require medical treatment); Kapcia, 944 F.2d at 704, 708 (affirming BIA finding that aliens suffered no past persecution when evidence showed one alien was arrested four times, detained three times, and beaten once and the other alien was twice detained for forty-eight hours during which time he was interrogated and beaten). Other circuits have reached a similar result. See, e.g., Dandan v. Ashcroft, 339 F.3d 567, 574 (7th Cir. 2003) (holding that being detained, beaten, and deprived of food for three days did not compel a finding of persecution); Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995) (holding that, “[although a reasonable factfin-der could have found” a brief detention and beating requiring no medical care “sufficient to establish past persecution ... a factfinder would [not] be compelled to do so”).

Xue claims he faced financial harm in the form of the fine paid to secure his release and asserts this harm to his pecuniary interests, when coupled with the harms identified above, compel a finding of past persecution. The problem for Xue is that he did not testify to any long-term effects from paying the fine and the record reveals his family was able to secure the money to pay the fine within a few days. Furthermore, just a few months after his release from jail, Xue, with the help of his family, was able to pay a significantly larger amount of money to a smuggler to aid Xue’s travels to the United States. This evidence strongly suggests the fine was not as burdensome to Xue as he now asserts on appeal. That being the case, this evidence does not compel a finding of past persecution, even when considered in conjunction with evidence regarding Xue’s mistreatment while incarcerated.

Alternatively, Xue asks this court to hold that any time an asylum seeker was ordered, under threat of penalty, to stop practicing his religion, persecution is established. In so requesting, Xue relies on the Eleventh Circuit’s decision in Kazemzadeh v. U.S. Attorney General, 577 F.3d 1341 (11th Cir. 2009). In Kazemzadeh, an asylum seeker was forced to choose between practicing Christianity in hiding or facing death in Iran. Id. at 1353-54. Ka-zemzadeh concluded that “having to practice religion underground to avoid punishment is itself a form of persecution.” Id. at 1354. This court perceives more than one problem with Xue’s reliance on Kazemza-deh.

Most importantly, under similar facts to those at issue here, the Eleventh Circuit declined to extend its holding in Kazemza-deh in the way requested by Xue. In Wang v. U.S. Attorney General, 591 Fed.Appx. 794, 799 (11th Cir. 2014) (unpublished disposition), the Eleventh Circuit rejected the notion that Kazemzadeh created a hard- and-fast rule, explaining that case-specific evidence in Wang demonstrated “that local governments do not interfere with unregistered churches viewed as non-threatening; restrictions on religious freedom vary according to region; and certain areas protect religious freedom.” In that regard, the court in Wang recognized the petitioner’s testimony “that her mother, father, and siblings have long attended unregistered churches in China without incident.” Id. Like the court in Wang, we do not read Kazemzadeh as creating the generalized rule advocated by Xue. Instead the result in Kazemzadeh is highly specific to context and the record.

Even if Kazemzadeh could be read as creating the inflexible rule advocated by Xue, this court would be obligated to reject such an approach. Here the record supports the BIA’s determination that the restriction on Xue’s religious practice in the form of the guarantee letter was not particularly meaningful given that Xue returned to his house church within two weeks of his release from jail. As noted above, Vicente-Elias holds that the existence of persecution is a factual determination focused on the record evidence. An inflexible rule treating each and every instance of a certain type of religious harassment as amounting to persecution as a matter of law is flatly inconsistent with the Vicente-Elias standard of review. Thus, this court cannot conclude the BIA was compelled to find past persecution based exclusively on the fact Xue was required to sign the guarantee letter as a condition of his release from jail.

Considering the entire record, the evidence adduced by Xue at the immigration hearing does not compel the conclusion he suffered persecution prior to leaving Chiria to travel to the United States. That being the case, the BIA’s finding that Xue did not suffer past persecution must be affirmed.

2. Future Persecution

In affirming the IJ’s finding that Xue did not show a well-founded fear of future persecution, the BIA concluded Xue did not demonstrate that he faces a particularized threat of persecution should he return to China. The BIA observed that Xue was able to depart China using his true name and passport, which “supports a conclusion that the authorities were not actively pursuing him [three] months after he stopped reporting to the police station on a weekly basis.” The BIA also noted that Xue “ha[d] not offered any updated evidence establishing that [the] police have a continued interest in him in- China.” Finally, the BIA noted that Xue’s “mother has not been arrested and detained, or been required to report to the police; however, she has actively participated in an underground church and for years has been holding [a] weekly church meeting at her home.” According to the BIA, “evidence that [Xue’s] parents and brother actively participate in an unregistered church undermines the reasonableness of his fear of future persecution.”

Because Xue failed to establish past persecution, he is not entitled to a presumption that he has a well-founded fear of future persecution. 8 C.F.R. § 1208.18(b)(1). He must, therefore, establish a well-founded fear of persecution to demonstrate an entitlement to asylum. Id. § 1208.13(b)(2). In the context of this particular case, he can do so only by showing that a reasonable factfinder would be compelled to conclude he will be targeted for mistreatment upon his return to China. On the record before the BIA, we have no difficulty concluding Xue has failed to carry that burden.

The BIA could reasonably conclude that the fact Xue’s family remains in China unharmed and continues to attend unregistered church services, including hosting a weekly service in the family home, demonstrates Xue will not be targeted upon a return to China. See Ritonga v. Holder, 633 F.3d 971, 977 (10th Cir. 2011). Xue attempts to overcome this evidence by arguing he is not similarly situated to his family members because he was previously arrested and required to report weekly to police. He also asserts that signing the guarantee letter upon his release from jail singled him out as. a dissident and that police officers visited his parents’ house on occasion after he stopped reporting. Xue’s arguments in this regard suffer from a lack of evidentiary support.

In asserting he is not similarly situated to his family members, Xue focuses on the guarantee letter and evidence in the record demonstrating individuals arrested during the second raid of his house church who were repeat offenders were sentenced to a year of imprisonment. That evidence certainly demonstrates (1) an active effort by Chinese authorities in 2008 in Xue’s hometown to eliminate underground house churches and (2) if Xue were targeted by Chinese authorities upon a return to his country of nationality, he would likely suffer persecution. This evidence does not, however, negate in any way the' BIA’s finding that authorities in Xue’s hometown have not targeted house church services since at least 2010, as demonstrated by the experience of Xue’s family. The BIA’s finding in this regard is entirely consistent with documentary evidence in the record, including country reports, which indicates suppression of Christian house churches in China is both regionalized and irregular.

Likewise, although the record (i.e., letters and other forms of communication from Xue’s mother to Xue) indicates officials maintained a particularized interest in Xue immediately after Xue stopped attending his weekly reporting sessions, none of that evidence compels the conclusion Chinese officials have maintained that particularized interest. In arguing for a contrary finding, Xue relies heavily on a letter from his mother dated January 27, 2012. That letter, however, appears to discuss Xue’s unhappiness with past events and appears to explain that Xue’s mother sent him abroad in 2008 because police, at that time, threatened Xue with a penalty for failing to report for his weekly sessions at the police station. The letter does not compel the conclusion officials maintain a particularized interest in Xue. Furthermore, as noted by the BIA, despite the entitlement to do so, Xue did not adduce any additional evidence demonstrating such a particularized interest between the IJ’s decision and the BIA’s resolution of the appeal. See generally Board of Immigration Appeals Practice Manual 5(f), at 78 (relevant page last revised April 26, 2016) (discussing process for filing motions based on new evidence), available at https://www.justice.gov/eoir/board-immigration-appeals-2; see also 8 C.F.R. § 1003.1(d)(4) (empowering the BIA to “to prescribe procedures governing proceedings before it”).

For those reasons set out above, the BIA’s finding that Xue would not be targeted for persecution based on religion should he return to China is supported by substantial evidence. Therefore, the BIA did not clearly err in concluding Xue failed to establish a reasonable possibility of future persecution.

C. Other Requests for Relief

The BIA correctly concluded that because Xue failed to show a reasonable possibility of future persecution, he necessarily failed to meet the higher burden required for withholding of removal under the Immigration and Nationality Act. See supra n.7. The BIA also correctly concluded Xue failed to show his eligibility for relief under the CAT. Because Xue did not present sufficient evidence to establish it is more likely than not he would be tortured upon his return to China, he is not entitled to CAT relief. 8 C.F.R. § 1208.16(c).

III. Conclusion

For the foregoing reasons, this court DENIES Xue’s petition for review.

BRISCOE, Circuit Judge,

concurring in part:

I agree that Xue’s petition for review should be denied.

I join, except for section H.A.2., which addresses an issue not raised or briefed by the parties. The views expressed there regarding standard of review concern a “rule of law or legal proposition not necessarily involved nor essential to the determination of the case in hand,” and are thereby dicta. Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995) (quoting Black’s Law Dictionary 454 (6th ed. 1990)).

      . The IJ found, pursuant to the provisions of 8 U.S.C, § 1158(b)(1)(B)(iii), that Xue’s testimony was credible. The BIA affirmed this finding. Accordingly, the factual background is, for the most part, drawn from Xue’s testimony before the IJ.

      . Because they are not registered with the Chinese government, which strictly controls the content of approved religions, house churches are illegal. The record indicates the government-approved Christian church “modifies doctrine and theology in an effort to eliminate elements of Christian faith that the Communist Party regards as incompatible with its goals and ideology.” For example, Xue testified the government-approved Christian church teaches that loyalty to country and the Communist Party come before loyalty to God. Due to the Chinese government's perception that house churches threaten its control of the country, officials have sought out house churches and arrested and imprisoned their members and leaders.

      .Although his mother attended the same house church attended by Xue, she was not present during this raid. While Xue attended church on both Fridays and Sundays, his mother only attended services on Sundays. Xue explained that the Friday house church gatherings were for young people.

      . See 8 U.S.C. § 1158(a)(1) (providing that an alien present in the United States, without regard to status, may apply for asylum); id. § 1158(b) (setting out eligibility standards for a grant of asylum, including that the alien qualify as a refugee under the provisions of 8 U.S.C. § 1101(a)(42)); id. § 1101(a)(42) (tying refugee status to past persecution or a well-founded fear of future persecution on account of, inter alia, religion in an alien’s country of nationality).

      . See 8 U.S.C. § 1231(b)(3) (providing that absent certain exceptions, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s ... religion”),

      . See 8 C.F.R. § 1208.16(c) (implementing the provisions of the U.S. Senate Resolution of Advice and Consent to Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

        .Compare 8 C.F.R. § 1208.13(b)(2)(i)(B) (providing that to demonstrate a well-founded fear of future persecution, an asylum seeker must demonstrate only that there is a “reasonable possibility” of suffering persecution upon a return to the alien’s country of origin), with id. § 1208.16(b)(2) (providing that to demonstrate a well-founded fear of persecution, an alien seeking withholding of removal must establish "it is more likely than not” he would be persecuted on account of, inter alia, religion upon a return to his country of nationality); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 427-32, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (noting differing standards of proof in these two contexts).

      . 8 C.F.R. § 1003.1(d)(3)(i) (“The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous."); see also id. § 1003.1(d)(3)(ii) (“The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.").

      . In In re A-S-B-, 24 I. & N. Dec. 493, 496-97 (BIA May 8, 2008), the BIA discussed the genesis of the new rules cabining BIA review of IJ determinations set out in § 1003.1(d)(3), It concluded § 1003.1(d)(3) was never intended to prevent it from reviewing any type of legal issue de novo, specifically including (1) whether a given set of facts amounts to persecution and (2) a prediction as to the likelihood of certain events occurring in the future. Id. Numerous circuit courts of appeals held invalid the portion of In re A-S-B- treating as an issue of law an IJ's predictions as to what events were likely to happen in the future. In re Z-Z-O-, 26 I. & N. Dec. 586, 589-91 (BIA May 26, 2015) (discussing circuit decisions). The BIA eventually overruled that narrow portion of In re A-S-B-. Id. In so doing, however, the BIA specifically left in place the portion of In. re AS-B- which empowered the agency to review dé novo an IJ’s determination as to whether a given set of facts amounts to persecution. Id.

      , It does not appear that this issue (i.e., the ' appropriate standard of review to be applied by this court) arises in the context of Xue’s appeal from the BIA's determination as to the existence of a well-founded fear of future persecution. The IJ found that Xue failed to prove he would likely be targeted for, or subjected to, mistreatment if he returned to China. This factual determination fully resolved the future-persecution component of Xue’s asylum claim. For that reason, the IJ did not address the logically subsequent question whether any such adverse consequences Xue might suffer would amount to persecution. The ■ BIA affirmed the IJ's factual determination. There is no doubt this court should review that factual determination under a substantial evidence standard.

      . The circuits are split as to the standard of review applicable to the question whether an undisputed set of facts constitute persecution. See, e.g., Lin v. Holder, 723 F.3d 300, 307 (1st Cir. 2013) (recognizing the BIA reviews de novo IJ’s determination as to persecution but, nevertheless, reviewing under "deferential substantial evidence standard” "the BIA’s rulings on this question’’); Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005) ("Whether 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.”); Eduard v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004) (evaluating the BIA's decision that petitioner failed to show past persecution for substantial evidence); Borca v. INS, 77 F.3d 210, 214 (7th Cir. 1996) (“We review the BIA’s factual findings that Borca failed to establish past persecution or a well-founded fear of future persecution under the 'substantial evidence’ standard.”); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995) ("The [BIA’s] factual determinations, including its finding of whether an applicant, has demonstrated a ‘well-founded fear of persecution,’ are reviewed for substantial evidence.”). But see Chen v. Holder, 773 F.3d 396, 403 (2d Cir. 2014) (“[W]hether certain events, if they occurred, would constitute persecution as defined by the INA is a question of law.”); Alavez-Hernandez v. Holder, 714 F.3d 1063, 1066 (8th Cir. 2013) ("[Petitioners] ... contend the BIA erred in concluding the conditions in Mexico had not been severe enough to constitute past persecution. This is a question of law we review de novo.”).
      Those circuits treating the existence of persecution as a fact issue appear to rely uncritically on the Supreme Court’s twenty-plus-year-old decision in INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38, (1992). In Elias-Zacarias, the Court was confronted with a decision of the Ninth Circuit holding that “conscription by a nongovernmental group constitute^] persecution on account of political opinion.” Id. at 480, 112 S.Ct. 812. The Supreme Court began by holding as follows:
      The BIA's determination that Elias-Zacarias was not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole. It can be reversed only if the evidence presented by Elias-Zacarias was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.

        Id. at 481, 112 S.Ct 812 (citation and quotation omitted). The Court ultimately reversed the Ninth Circuit, concluding the record did not compel the conclusion that (1) Elias-Zaca-rias’s opposition to recruitment into the guerrilla group was based on political motivation or (2) the guerrillas erroneously believed political motivations drove Elias-Zacarias’s refusal to join. Id. at 482-84, 112 S.Ct. 812. Thus, it appears the question of persecution in Elias-Zacarias turned on disputed facts, not on the ultimate question of whether a given set of facts amounted to persecution. In any event, and most importantly, Elias-Zacarias was decided well before the BIA propounded its own regulations, which regulations unambiguously (1) preclude the BIA from making factual findings on review of an IJ’s asylum decision and (2) establish that the ultimate question regarding the existence of persecution is a question of law subject to de novo review by the BIA. 8 C.F.R. § 1003.1(d)(3).