Sheng Mei Lin v. Holder , 531 F. App'x 58 ( 2013 )

11-4447
Lin v. Holder
BIA
A088 376 084
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
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of August, two thousand thirteen.
PRESENT:
CHESTER J. STRAUB,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
SHENG MEI LIN,
Petitioner,
v. 11-4447
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: NORMAN KWAI WING WONG, New York, NY.
FOR RESPONDENT: JASON WISECUP (Stuart F. Delery,
Acting Assistant Attorney General;
Nancy Friedman, Senior Litigation
Counsel; Sharon M. Clay, Trial
Attorney, on the brief), 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, the decision of the BIA is VACATED, and the case
is REMANDED for further proceedings.
Petitioner Sheng Mei Lin, a native and citizen of the
People’s Republic of China, seeks review of a September 28,
2011, order of the BIA denying her motion to reopen. See In
re Sheng Mei Lin, No. A088 376 084 (B.I.A. Sept. 28, 2011).
Although acknowledging both that petitioner has converted to
Christianity and “that the mistreatment of some Christians
and other religious minorities in China is a longstanding
and ongoing problem,” the BIA, nonetheless, denied Lin’s
motion to reopen on the basis that Lin had not provided
sufficient evidence to demonstrate that “the Chinese
authorities are aware, or are likely to become aware, of
[Lin’s] conversion to Christianity in the United States, or
that she would likely face persecution upon her return due
to her becoming a Christian.” Certified Administrative
Record (“CAR”) 3. On that basis, the BIA held that Lin
failed to demonstrate an objectively reasonable fear of
persecution. Id. We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
2
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). The BIA abuses its discretion where
its decision is “conclusory, devoid of reasoning, and
fail[s] to account for . . . substantial record
evidence.” Norani v. Gonzales, 451 F.3d 292, 295 (2d Cir.
2006) (internal quotation marks omitted); see also Zhao v.
U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“An
abuse of discretion may be found . . . where the [BIA’s]
decision provides no rational explanation, . . . is devoid
of any reasoning, or contains only summary or conclusory
statements . . . .”).
In order to establish eligibility for asylum based on
future persecution, an applicant must show “that [she]
subjectively fears persecution and . . . that [her] fear is
objectively reasonable.” Ramsameachire v. Ashcroft, 357
F.3d 169, 178 (2d Cir. 2004). To prevail on a motion to
reopen, therefore, Lin is required to establish a realistic
chance that she would be able to demonstrate an objectively
reasonable fear of persecution if her proceedings were
reopened. Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.
2005). An applicant can demonstrate an objectively
3
reasonable fear of future persecution “in one of two ways:
first, by offering evidence that he or she would be singled
out individually for persecution; and second, by proving the
existence of a pattern or practice in his or her country of
nationality . . . of persecution of a group of persons
similarly situated . . . and . . . establishing his or her
own inclusion in, and identification with, such a group.”
Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008)
(internal quotation marks and alterations omitted).
In reviewing the BIA’s September 28, 2011, decision, we
are confronted with two problems. First, although we cannot
divine whether the BIA has actually determined that
petitioner’s evidence proves there is a pattern or practice
of persecution of Christians in China, it appears it may
have done so. Indeed, as already noted, the BIA agreed that
there has been “mistreatment of some Christians . . . in
China” and that such mistreatment has been “a longstanding
and ongoing problem.” CAR 3. Whether this is or is not a
determination that petitioner’s evidence has demonstrated
such pattern or practice, the BIA needs to make that
determination abundantly clear before we may adequately
review it.
4
Second, if indeed the BIA has determined on this record
that there exists a pattern or practice of persecution of
Christians in China, then, having acknowledged that Lin has
converted to Christianity, the BIA must further consider
whether and, if so, explain why in its view it is necessary
for petitioner, a member of the persecuted class, also to
prove that “the Chinese authorities are aware, or are likely
to become aware, of [Lin’s] conversion to Christianity,” CAR
3, in order to demonstrate a likelihood that she will be
persecuted. That is, to demonstrate likelihood of
persecution, if there is evidence from which to conclude
there is a pattern or practice of persecution of a
particular group of which petitioner is a member, why is it
not enough merely to show membership in that persecuted
1
group, which petitioner has done?
In denying the motion to reopen, the BIA relied on
Lin’s failure to establish that Chinese authorities would
likely become aware of her conversion to Christianity in the
1
Given the frequency with which such an issue is
likely to be encountered, we note that a precedential
opinion of the BIA resolving the issue would provide
valuable guidance to courts and litigants. The BIA could
thereby articulate a legal basis for requiring the
petitioner to establish anything more than membership in the
group that is subject to the pattern or practice of
persecution by the government of the country to which a
petitioner would be returned.
5
United States. We have not held, however, and the BIA cites
no authority for the proposition, that in order to prevail
at the motion to reopen stage, the petitioner must show--in
addition to establishing a pattern or practice of
persecution of members of a group--that government officials
were likely to become aware of the petitioner’s membership
in that group. Given the ambiguity in the BIA’s ruling as
to whether Lin has failed to establish a pattern or practice
of persecution of Christians in China, the BIA may well have
erred by denying the motion to reopen on the basis that Lin
failed to establish that the Chinese authorities would
likely become aware of her conversion to Christianity.2
2
In Kyaw Zwar Tun v. U.S. Immigration & Naturalization
Serv., 445 F.3d 554 (2d Cir. 2006), we remanded the case to
the IJ “to determine [1] whether Tun had a well-founded fear
of persecution on account of pro-democracy political
activities and . . . [2] whether Burmese government
officials were likely to become aware of Tun's political
dissident activities in the United States.” 445 F.3d at
571. We did not hold in Tun, however, that to establish
eligibility for asylum based on inclusion in a group subject
to a pattern or practice of persecution, a petitioner must
show that the foreign government was likely to become aware
of petitioner’s activities. In fact, we noted that in order
to establish eligibility for asylum based on petitioner’s
inclusion in a group subject to a pattern and practice of
persecution, a petitioner is “not required to establish that
the [foreign] government was aware of him as an individual.”
Id. at 570. Rather, “it sufficed to establish petitioner's
eligibility for asylum . . . for petitioner to prove that he
was a pro-democracy activist and that the Burmese government
has a pattern or practice of persecuting similarly situated
pro-democracy activists.” Id. (citing, inter alia, 8 C.F.R.
§ 208.13(b)(2)(iii)).
6
Accordingly, because it is unclear whether the BIA
determined that petitioner’s evidence establishes a pattern
or practice of persecution of Christians in China, the
decision of the BIA is VACATED, and the matter is REMANDED
for a determination of that issue. If that issue is
resolved in the affirmative, the BIA must also consider
whether and why it would be necessary for petitioner also to
prove that government officials were likely to become aware
of her conversion to Christianity in order to demonstrate a
likelihood of persecution. In so doing, the BIA must be
mindful that this Circuit has never held that an asylum
applicant who has established inclusion in a group subject
to a pattern or practice of persecution need also show that
the applicant would be “singled out individually for
persecution.” 8 C.F.R. § 208.13(b)(2)(iii). Indeed, the
regulation provides:
In evaluating whether the applicant has sustained
the burden of proving that he or she has a
well-founded fear of persecution, the asylum
officer or immigration judge shall not require
the applicant to provide evidence that there is a
reasonable possibility he or she would be singled
out individually for persecution if: (A) The
applicant establishes that there is a pattern or
practice . . . of persecution of a group of
persons similarly situated to the applicant on
account of [specified criteria, including
religion]; and (B) The applicant establishes his
or her own inclusion in, and identification with,
such group of persons such that his or her fear
of persecution upon return is reasonable.
Id.7
The petition for review is GRANTED. We VACATE the
decision of the BIA and REMAND the case for further
consideration consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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