Zongxun Jiang v. Holder ( 2012 )

11-3158-ag
Jiang v. Holder
BIA
Chew, IJ
A089 254 321
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11th day of July, two thousand twelve.
PRESENT:
ROBERT D. SACK,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
ZONGXUN JIANG,
Petitioner,
v. 11-3158-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gang Zhou, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Susan K. Houser, Senior
Litigation Counsel; John J.W.
Inkeles, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED.
Zongxun Jiang, a native and citizen of the People’s
Republic of China, seeks review of a July 8, 2011, order of
the BIA affirming the September 2, 2009, decision of
Immigration Judge (“IJ”) George T. Chew, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Zongxun
Jiang, No. A089 254 321 (B.I.A. July 8, 2011), aff’g No.
A089 254 321 (Immig. Ct. N.Y. City Sept. 2, 2009). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Because the BIA largely adopted the IJ’s decision, we
have reviewed the decision of the IJ as supplemented by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). We review the Board’s factual findings, including
credibility determinations, for substantial evidence,
treating them as “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B); see also Shi Jie Ge v. Holder, 588
F.3d 90, 93-94 (2d Cir. 2009). However, this Court will
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vacate and remand for new findings if the agency’s reasoning
or its fact-finding process was sufficiently flawed. See
Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d
Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d
Cir. 2004). We review de novo questions of law and the
application of law to undisputed fact. See, e.g., Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Because the agency found that Jiang demonstrated past
persecution, he benefits from the presumption of a well-
founded fear of future persecution. See 8 C.F.R.
§§ 1208.13(b)(1), 1208.16(b)(1)(i); see also Baba v. Holder,
569 F.3d 79, 86 (2d Cir. 2009); Li Hua Lin v. U.S. Dep’t of
Justice, 453 F.3d 99, 105 (2d Cir. 2006). However, an IJ
must still deny asylum to an applicant who establishes
eligibility based solely on past persecution when the
government establishes a fundamental change in circumstances
sufficient to rebut the presumption of well-founded fear. 8
C.F.R. § 1208.13(b)(1).
Here, the agency abused its discretion by failing to
give Jiang the full benefit of the presumption to which he
was entitled. See Kone v. Holder, 596 F.3d 141, 150 (2d
Cir. 2010); see also Abu Hasirah v. Dep't of Homeland Sec.,
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478 F.3d 474, 476-77 (2d Cir. 2007) (per curiam) (the agency
abuses its discretion when it misapplies the governing law).
The agency found that the government overcame the
presumption of Jiang’s future persecution based solely on
his testimony that he lived and worked in China for 20 years
after his persecution and that he was unsure whether the
song for which he was originally persecuted for singing
publicly is currently banned in China. The agency explained
that Jiang does not have a well-founded fear of future
persecution because he failed to indicate that the
authorities in China are still looking for him. However, by
relying on Jiang’s failure to show that Chinese authorities
are still looking for him, the agency misapplied the
presumption of future persecution because it placed the
burden on Jiang to show that he would be persecuted in the
future rather than holding the government to its evidentiary
burden of showing that Jiang would not be persecuted in the
future. See Kone, 596 F.3d at 150.
Moreover, Jiang’s testimony that he remained in
Shanghai for 20 years after he was persecuted is, standing
alone, insufficient to satisfy the government’s burden,
particularly given Jiang’s testimony that he was under
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probationary supervision during that time. Cf. Kone, 596
F.3d at 150 (“The government cannot satisfy its burden to
demonstrate that Kone will not be threatened simply by
showing that she enjoyed periods with no new persecution
....”). Likewise, Jiang’s testimony regarding his
uncertainty about current Chinese government policy toward a
particular “anti-patriotic” song is insufficient to
establish a fundamental change of conditions. See Islami v.
Gonzales, 412 F.3d 391, 397-98 (2d Cir. 2005) (government’s
burden to show changed circumstances met by providing
“copious evidence that the nationalistic Serb domination of
Kosovo has ended”), overruled in part on other grounds by
Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305
(2d Cir. 2007); Passi v. Mukasey, 535 F.3d 98, 102 (2d Cir.
2008).
Finally, the agency also abused its discretion by
failing to consider Jiang’s eligibility for humanitarian
asylum under the second prong of the regulatory framework.
See Matter of L-S-, 25 I&N Dec. 705, 715 (BIA 2012) (“If the
Immigration Judge finds that the respondent did not
demonstrate ‘compelling reasons’ for granting asylum based
on the severity of his past persecution, he should also
determine whether the respondent has established a
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‘reasonable possibility’ that he will suffer ‘other serious
harm’ under 8 C.F.R. § 1208.13(b)(1)(iii)(B).”). Here, the
agency considered and rejected Jiang’s application for
humanitarian asylum solely on the basis that his past
persecution was insufficiently severe without considering
whether he had established a reasonable possibility of other
serious harm in China. See 8 C.F.R.
§ 1208.13(b)(1)(iii)(B). As with the agency’s error
regarding the presumption of future persecution, the
agency’s error regarding humanitarian asylum requires remand
because we cannot predict with confidence that the agency
would reach the same result on remand absent its errors.
Kone, 596 F.3d at 143.
For the foregoing reasons, the petition for review is
GRANTED and the case is REMANDED to the agency for further
proceedings consistent with this opinion. As we have
completed our review, the pending motion to take judicial
notice is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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