Wen Qing Lin v. Holder , 547 F. App'x 61 ( 2013 )

12-3088
Lin v. Holder
BIA
A089 204 170
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 12th day of December, two thousand thirteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 WEN QING LIN,
14 Petitioner,
15
16 v. 12-3088
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Ernesto H. Molina,
28 Jr., Assistant Director; Sabatino F.
29 Leo, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Wen Qing Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a July 13, 2012,
7 decision of the BIA denying her motion to reopen. In re Wen
8 Qing Lin, No. A089 204 170 (B.I.A. July 13, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). While the BIA has “broad discretion” to
14 grant or deny motions to reopen, see INS v. Doherty, 502
15 U.S. 314, 322 (1992), “[a]n abuse of discretion may be found
16 in those circumstances where the [BIA’s] decision provides
17 no rational explanation, inexplicably departs from
18 established policies, is devoid of any reasoning, or
19 contains only summary or conclusory statements; that is to
20 say, where the [BIA] has acted in an arbitrary or capricious
21 manner,” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,
22 93 (2d Cir. 2001) (internal citations omitted).
2
1 The BIA denied Lin’s motion to reopen on the basis that
2 her evidence was insufficient to establish her prima facie
3 eligibility for relief. Although the BIA applied the
4 appropriate standard for motions to reopen, as set forth in
5 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005), the
6 decision suggests that the BIA failed to understand the
7 nature of Lin’s claim. First, the BIA held that the record
8 evidence did not establish that Lin had a well-founded fear
9 of persecution in China on account of her Christianity, when
10 in fact Lin claimed that she feared persecution as a Roman
11 Catholic, and presented evidence of specific problems
12 between Roman Catholics and the Chinese government.
13 Furthermore, the BIA rejected Lin’s expert affidavit based
14 on two apparent inconsistencies, finding: (1) the author’s
15 statement that, “the Roman Catholic Church is a banned
16 organization in China,” to be inconsistent with his
17 statement that “[t]he control of the Roman Catholic church
18 has been a consistent aim of the Chinese government for many
19 years”; and (2) that the author’s statement that the Roman
20 Catholic Church is banned was inconsistent with Lin’s
21 evidence that there is state-sponsored Catholic church.
22
3
1 The BIA’s conflation of Christianity in general and
2 Roman Catholicism in particular, as well as its rejection of
3 Lin’s expert affidavit suggests that either the BIA failed
4 to consider Lin’s evidence, or did not understand the import
5 of Lin’s argument that there is a distinction between the
6 Roman Catholic church, which is aligned with the Vatican and
7 the state-sponsored Catholic church in China which operates
8 via the Patriotic Association of Chinese Catholics and has
9 been reported to persecute members of the Roman Catholic
10 church. Accordingly, although we express no opinion as to
11 the ultimate outcome on remand, we remand for the BIA to
12 more fully consider the record as it pertains to Lin’s
13 specific claim that she will practice her religion in an
14 underground Roman Catholic church. See Poradisova, 420 F.3d
15 at 78; see also Wei Guang Wang v. Bd. of Immigration
16 Appeals, 437 F.3d 270, 275 (2d Cir. 2006) (noting that the
17 BIA does not need to “expressly parse or refute on the
18 record” each piece of evidence submitted by the petitioner,
19 so long as it demonstrates that it gave “reasoned
20 consideration” to the petition).
21 For the foregoing reasons, the petition for review is
22 GRANTED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
5