Lian Yu Piao v. Holder ( 2010 )

09-2620-ag
Piao v. Holder
BIA
Hom, IJ
A 098 323 785
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19 th day of July, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 LIAN YU PIAO,
15 Petitioner,
16
17 v. 09-2620-ag
18 NAC
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Jay Ho Lee, New York, New York.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, Civil Division; Anthony C.
3 Payne, Senior Litigation Counsel,
4 Office of Immigration Litigation;
5 Margaret Kuehne Taylor, Attorney,
6 Office of Immigration Litigation;
7 Department of Justice, Washington
8 D.C.
910
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA” or “Board”) decision, it
13 is hereby ORDERED, ADJUDGED, AND DECREED that the petition for
14 review is GRANTED.
15 Petitioner Lian Yu Piao, a native and citizen of the
16 People’s Republic of China, seeks review of the June 10, 2009
17 order of the BIA affirming the January 14, 2008 decision of
18 Immigration Judge (“IJ”) Sandy K. Hom denying her application
19 for asylum, withholding of removal, and relief under the
20 Convention Against Torture (“CAT”). In re Lianyu Piao, No.
21 A 098 323 785 (B.I.A. June 10, 2009), aff’g No. A 098 323 785
22 (Immig. Ct. N.Y. City Jan. 14, 2008). We assume the parties’
23 familiarity with the underlying facts and procedural history
24 in this case.
25 Where the BIA adopts certain aspects of the IJ’s decision
26 but declines to adopt others, we review the IJ’s decision as
27 modified by the BIA. See Ming Xia Chen v. BIA, 435 F.3d 141,
28 144 (2d Cir. 2006). The applicable standards of review are
29 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
30 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 Piao argues that errors in transcriptions of the hearing
2 tapes in this case caused the BIA to conclude that Piao had
3 not met her burden of proving a likelihood of future
4 persecution on the basis of her Christian religious beliefs,
5 because the transcriptions incorrectly identified her home as
6 “Guangdong Province, Fujian City,” rather than Jilin Province,
7 Hunchun City. A report in the record before the BIA indicated
8 that government supervision of religious activities in China
9 varies by region, and the BIA determined that Piao had not
10 demonstrated that church members in Guangdong Province or
11 “Fujian City” were subject to persecution.
12 An alien in removal proceedings is entitled to due
13 process, see Reno v. Flores, 507 U.S. 292, 306-07 (1993),
14 including “a reasonable opportunity . . . to present evidence
15 on [her] own behalf,” 8 U.S.C. § 1229a(b)(4)(B). Due process
16 is violated when an alien is “denied a full and fair
17 opportunity to present [her] claims,” Burger v. Gonzales, 498
18 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks
19 omitted) (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 424
20 F.3d 144, 155 (2d Cir. 2006) (“Xiao Ji Chen I”), reh'g
21 granted, vacated on other grounds by Xiao Ji Chen v. U.S.
22 Dep't of Justice, 471 F.3d 315 (2d Cir.2006) (“Xiao Ji Chen
23 II”)), and thereby suffers “cognizable prejudice,” Garcia-
3
1 Villeda v. Mukasey 531 F.3d 141, 149 (2d Cir. 2008). Among
2 other things, due process requires that an alien such as Piao
3 “be furnished with an accurate and complete translation of
4 official proceedings,” so as “to enable the applicant to place
5 [her] claim before the judge.” Augustin v. Sava, 735 F.2d 32,
6 37 (2d Cir. 1984); see also Sterkaj v. Gonzales, 439 F.3d 273,
7 279 (6th Cir. 2006) (“Due process demands a reasonably
8 accurate . . . transcript to allow . . . the alien to mount a
9 challenge to the proceedings conducted before the IJ.”).
10 We are persuaded that the BIA erred in failing to address
11 Piao’s claim that her home city and province had been
12 erroneously transcribed and that this error requires remand in
13 the circumstances of this case. Piao presented several
14 documents demonstrating that, in fact, she hailed from Jilin
15 Province, Hunchun City. She listed Jilin as her home province
16 in her asylum application. She also submitted a Resident ID
17 Card issued in February 2004 in Jilin. The only references in
18 the record to her living in “Guangdong Province, Fujian City”
19 appear in the transcript of her testimony before the IJ.
20 During that testimony, after Piao purportedly stated that she
21 was from “Guangdong Province, Fujian City,” she asserted that
22 the town was in “northeast” China. This assertion is
23 consistent with her argument that she is in fact from Jilin
4
1 Province, Hunchun City, because Jilin Province is located in
2 northeast China, whereas Guangdong Province is located in
3 southeast China. Furthermore, Fujian is not a city; rather,
4 Fujian and Guangdong are neighboring provinces, rendering
5 Piao’s answer, as reflected in the transcript, nonsensical. 1
6 This distinction is material in light of the BIA’s
7 observation that “supervision of religious activity varies
8 widely from region to region,” and its recognition that the
9 Religious Freedom Report on China did describe “incidents of
10 harassment and possible persecution of house church officials
11 and members in several provinces of China.” BIA at 3-4.
12 Perhaps most importantly, the Religious Freedom Report
13 mentions instances of persecution of house church members in
14 Jilin Province. Therefore, we cannot find that the
15 transcription errors here were harmless. See Xiao Ji Chen II,
16 471 F.3d at 338 (“[A]n error does not require a remand if the
17 remand would be pointless because it is clear that the agency
18 would adhere to its prior decision in the absence of error.”).
19 On remand, the agency should resolve the factual issue of
20 Piao’s home province and assess what bearing that has on her
1
We take judicial notice of these facts pertaining
to the locations of provinces and cities within China.
See Burger, 498 F.3d at 134.
5
1 fear of future religious persecution. 2
2 We decline, however, Piao’s request that we remand to a
3 different IJ. IJ Hom’s conduct did not demonstrate bias,
4 hostility, or any other factor suggesting that he would not be
5 capable of fairly and reliably developing the record on
6 remand. Cf. Islam v. Gonzales, 469 F.3d 53, 56 (2d Cir.
7 2006).
8 For the foregoing reasons, the petition for review is
9 GRANTED and the case is REMANDED for further proceedings
10 consistent with this order. As we have completed our review,
11 any stay of removal that the Court previously granted in this
12 petition is VACATED, and any pending motion for a stay of
13 removal in this petition is DISMISSED as moot. Any pending
14 request for oral argument in this petition is DENIED in
15 accordance with Federal Rule of Appellate Procedure 34(a)(2),
16 and Second Circuit Local Rule 34.1(b).
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
22
2
Piao does not challenge the agency’s findings that:
(1) she did not establish eligibility for relief based on
either her alleged violation of the family planning
policy or her aid to North Korean refugees; and (2) she
did not establish past persecution on account of her
Christian faith. Therefore, the agency need not address
these issues on remand.
6