Sun Yi Dong v. Holder ( 2010 )

08-1884-cv
Dong v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR
AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1
AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 14 th day of July, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROSEMARY S. POOLER,
9 Circuit Judge. *
10
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12 SUN YI DONG,
13
14 PETITIONER,
15
16 -v.- 08-1884-cv
17
18 ERIC H. HOLDER, Jr., UNITED STATES
19 ATTORNEY GENERAL,
20
21
*
The Honorable Sonia Sotomayor, originally a member of
the panel, was elevated to the Supreme Court on August 10,
2009. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C.
§ 46(d); Local Rule 0.14(2); United States v. Desimone, 140
F.3d 457 (2d Cir. 1998).
1 RESPONDENT. **
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3 FOR PETITIONER: STUART ALTMAN, ESQ. (Liu Yu,
4 Esq., on the brief), New York,
5 NY.
6
7 FOR RESPONDENT: JENNIFER R. KHOURI, Office of
8 Immigration Litigation, United
9 States Department of Justice
10 (Gregory G. Katsas, Acting
11 Assistant Attorney General;
12 Barry J. Pettinato, Assistant
13 Director, Office of Immigration
14 Litigation, on the brief),
15 Washington, D.C.
16
17 UPON DUE CONSIDERATION of this petition for review of a
18 Board of Immigration Appeals (“BIA”) decision, it is hereby
19 ORDERED, ADJUDGED, AND DECREED that the petition for review
20 is GRANTED in part, the order of the BIA is VACATED in part,
21 and that the case is REMANDED for further proceedings.
22
23 Petitioner Sun Yi Dong, a native and citizen of the
24 People’s Republic of China, seeks review of the March 28,
25 2008 order of the BIA affirming the December 12, 2006
26 decision of Immigration Judge (“IJ”) Robert Weisel, denying
27 his applications for asylum, withholding of removal under
28 § 241(b)(3) of the Immigration and Nationality Act, and
29 withholding of removal under the Convention Against Torture.
30 See In re Sun Yi Dong, No. A 99 667 844 (B.I.A. Mar. 28,
31 2008). We assume the parties’ familiarity with the
32 underlying facts and procedural history of this case.
33
34 The BIA found that Dong failed to establish that he was
35 subject to past persecution in China for his Falun Gong
36 practices, when, inter alia, he was arrested and detained
37 for 21 days, during which time he was interrogated and
38 provided bread and water only every three to four days. The
39 BIA also found that Dong failed to establish a well-founded
40 fear of future persecution based on China’s pattern and
41 practice of persecuting Falun Gong practitioners. We vacate
**
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
2
1 and remand for further action with respect to both
2 findings. 1
3
4 With respect to Dong’s claim of past persecution, the
5 record suggests that the IJ and BIA may have concluded that
6 Dong could establish past persecution only if he was
7 subjected to physical violence. See, e.g., In re Sun Yi
8 Dong, No. A 99 667 844 (B.I.A. Mar. 28, 2008) (stating that
9 Dong “was never physically harmed and was never arrested
10 again,” and concluding that “the experiences described by
11 the respondent are insufficient to establish past
12 persecution”); In re Sun Yi Dong, No. A 99 667 844 (Immig.
13 Ct. N.Y. City Dec. 12, 2006) (“During his detention there
14 was no evidence of beatings, torture or extended detention
15 with intimidation.”); id. (“There was no evidence . . . that
16 he was ever physically mistreated subsequent to October
17 2005.”). That would be the wrong legal standard. We have
18 cautioned the BIA to “be keenly sensitive to the fact that
19 . . . any physical degradation designed to cause pain,
20 humiliation, or other suffering, may rise to the level of
21 persecution.” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d
22 Cir. 2006). Because the BIA may have erroneously concluded
23 that the lack of physical violence against Dong foreclosed
24 his asylum claim, we vacate and remand for further
25 consideration.
26
27 As to Dong’s claim of future persecution, he relies on
28 the Chinese government’s pattern and practice of persecuting
29 Falun Gong practitioners. We conclude that the agency erred
30 in failing to consider the country condition report that
31 Dong submitted to the IJ. See Yan Chen v. Gonzales, 417
32 F.3d 268, 272 (2d Cir. 2005) (finding “significant error” in
33 the BIA’s failure to consider a country condition report).
34 Additionally, to the extent the IJ may have assumed that
35 Dong needed a high level of doctrinal knowledge to be
36 eligible for asylum, that reasoning would also be in error.
37 See Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006). 2
1
Dong has waived any challenge to the denial of his
claim for relief for removal under the Convention Against
Torture.
2
In light of the REAL ID Act, it is unclear whether or
not our Circuit’s rule--that an IJ is under no obligation to
provide pre-decision notice to the applicant that his/her
testimony might require corroboration--remains good law.
3
1
2 Accordingly, we GRANT the petition for review in part,
3 VACATE the order of the BIA in part, and REMAND to the BIA
4 for further proceedings consistent with this order.
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
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14
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18
See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575
F.3d 193, 198 (2d Cir. 2009). As we remand on other
grounds, it is unnecessary to decide this question in the
first instance here. Nothing in this order prevents Dong
from moving to reopen the administrative record on remand to
provide corroborative evidence, if he is otherwise able to
do so.
4