Xiao Ju Yang-Lin v. Holder ( 2009 )

09-1280-ag
Yang-Lin v. Holder
BIA
Brennan, IJ
A098 721 798
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 18 th day of December, two thousand nine.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
XIAO JU YANG-LIN,
Petitioner,
v. 09-1280-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Cora J. Chang, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Civil Division; Allen W. Hausman,
Senior Litigation Counsel; Kevin J.
Conway, 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, and the case is REMANDED.
Petitioner Xiao Ju Yang-Lin, a native and citizen of the
People’s Republic of China, seeks review of a March 13, 2009
order of the BIA affirming the January 10, 2007 decision of
Immigration Judge (“IJ”) Noel Brennan denying his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Xiao Ju Yang-Lin,
No. A098 721 798 (B.I.A. Mar. 13, 2009), aff’g No. A098 721
798 (Immig. Ct. N.Y. City Jan. 10, 2007). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See Jian Hui Shao
v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008); Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Here, Yang-Lin sought asylum on the ground that he
suffered past persecution and had a well-founded fear of
persecution on account of his resistance to the family
planning policy, stemming from the physical altercation that
ensued when the family planning cadres sought his cousin in
order to require an abortion. In finding that Yang-Lin failed
to establish a nexus to a protected ground, the agency noted
that he did not indicate that he verbally expressed any
opposition to the family planning policy to any of the
officers, nor did he indicate that the officers believed him
to oppose the policy. Yang-Lin challenges this finding.
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I. Other Resistances
The BIA has held that acts that thwart the goals of the
family planning policy and which are viewed with disfavor by
Chinese officials implementing the policy, including acts
involving the use of force, constitute “other resistance” to
the policy. Matter of M-F-W- & L-G-, 24 I & N Dec. 633, 638
(BIA 2008); see also Shi Liang Lin v. U.S. Dep’t of Justice,
416 F.3d 184, 188 (2d Cir. 2005). The BIA failed to explain,
however, why Yang-Lin’s conduct did not constitute resistance
to the policy under the BIA’s own standards. Accordingly, we
remand to allow the BIA an opportunity to explain why Yang-
Lin’s altercation did not demonstrate “other resistance” to
the family planning policy, and to state specifically whether
physical resistance must be accompanied by verbal resistance.
See Mufied v. Mukasey, 508 F.3d 88, 91-92 (2d Cir. 2007) (“A
court of appeals is not generally empowered to conduct a de
novo inquiry into the matter being reviewed and to reach its
own conclusions based on such an inquiry. . . . [T]he proper
course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.”).
II. Past Persecution
In finding that Yang-Lin failed to establish past
persecution, the IJ noted that “while the respondent ha[d] an
altercation with the authorities I note that he was not
arrested or detained in any way but was rather beaten up but
not in a setting that was a detention or a detained setting.”
Thus, the IJ appeared to suggest that detention or arrest was
required to show persecution.
Although we have found that detention and arrest may
exacerbate the circumstances in which a beating has occurred,
see Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006), we
have never ruled that physical attacks may not, on their own,
constitute persecution, regardless of where they occurred.
See id. at 225-26 (citing Ivanishvili v. U.S. Dep’t of
Justice, 433 F.3d 332, 340 (2d Cir. 2006)). Accordingly, we
also remand to the BIA so that the agency may consider whether
the physical attack on Yang-Lin rises to the level of
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persecution. See Beskovic, 467 F.3d at 225-26 (citing
Ivanishvili, 433 F.3d at 340).
III. Other Claims
Lastly, Yang-Lin does not challenge the IJ’s adverse
credibility determination, which was dispositive of his Falun
Gong claim, and he fails to sufficiently challenge the denial
of his CAT claim. We deem any challenge to these findings
forfeited. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
n.1, 545 n.7 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
GRANTED, and the case REMANDED for further proceedings
consistent with this order. As we have completed our review,
any pending motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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