Xue Feng Jin v. Holder

10-3733-ag
Jin v. Holder
BIA
Nelson, IJ
A088 775 717
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 27th day of June, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
______________________________________
XUE FENG JIN,
Petitioner,
10-3733-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Lewis Hu, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Jamie E. Grimes, Senior
Litigation Counsel; Walter Bocchini,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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 DISMISSED in part, DENIED in part, and GRANTED in part.
Petitioner, Xue Feng Jin, a native and citizen of
China, seeks review of an August 20, 2010, decision of the
BIA affirming the October 30, 2008, decision of Immigration
Judge (“IJ”) Barbara A. Nelson denying his application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Xue Feng Jin, No.
A088 775 717 (B.I.A. Aug. 20, 2010), aff’g No. A088 775 717
(Immig. Ct. N.Y. City Oct. 30, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). The applicable standards of review are well-
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009). As an initial
matter, we lack jurisdiction to review the agency’s
pretermission of Jin’s asylum application as untimely
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because Jin challenges only the IJ’s factual findings
regarding when he arrived in the United States. See
8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 326-29 (2d Cir. 2006)
(holding that a question of law is not implicated “when the
petition for review essentially disputes the correctness of
the IJ’s fact-finding”). Thus, we dismiss Jin’s petition
for review with respect to his asylum claim.
In addition, we deny the petition to the extent it
challenges the agency’s denial of CAT relief. The agency
reasonably determined that Jin failed to establish that he
faced a clear probability of torture upon return to China
because he did not present any particularized evidence that
he would be singled out for torture, or that those who
support the separation of the Yanbian region from China or
provide assistance to North Korean refugees in China
generally face torture. See Mu-Xing Wang v. Ashcroft, 320
F.3d 130, 143-44 (2d Cir. 2003); see also Mu Xiang Lin v.
U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005).
However, with respect to Jin’s application for
withholding of removal, the agency erred by failing to
properly address whether the harm Jin claims to face upon
return to China is on account of his political opinion. In
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Jin Jin Long v. Holder, 620 F.3d 162 (2d Cir. 2010), we
remanded a petition (Dkt. No. 09-3472-ag) to the BIA for
further consideration of the petitioner’s claim that he was
persecuted on account of his political opinion when he was
arrested, detained, and beaten for providing assistance to
North Korean refugees who had illegally entered China. In
doing so, we noted that, in addition to the petitioner’s
prolonged detention and physical abuse, he was never
formally charged with a crime or brought before a judge.
Jin Jin Long, 620 F.3d at 167. We further noted that
although the petitioner’s motivation in providing the
assistance was “humanitarian” and “charitable,” rather than
overtly political, “a government might construe violation of
a law as opposition or resistance to the law’s underlying
policy, and punish it accordingly.” Id. We therefore
remanded to the BIA to consider “whether there is a law
barring assistance to North Koreans, and (whether there is
or not) in what circumstances persecution of those who
assist North Korean refugees would constitute persecution on
account of a protected ground.” Id. at 168.
4
We find that remand is warranted for similar reasons in
the present case. Like the aforementioned petitioner in Jin
Jin Long, Jin’s actions – joining an illegal organization
that promoted the reunification of the Yanbian region of
China with Korea, distributing flyers claiming that the
Yanbian region was part of Korea, and providing
transportation and other assistance to North Korean refugees
out of the Yanbian region – suggested a political opinion in
opposition to the Chinese government, particularly given
that Jin testified that he knew that his actions were in
violation of Chinese law. See Jin Jin Long, 620 F.3d at
162. In addition, contrary to the IJ’s assertion that Jin
was charged with violating a general law criminalizing
smuggling, the record indicates that Jin was charged with a
crime specific to promoting the return of the Yanbian region
to Korea and helping North Korean refugees as opposed to
illegal immigrants in general. Moreover, as in Jin Jin
Long, the background evidence states “that the North Korean
refugee issue is politically charged,” 620 F.3d at 167.
We note that, in Jin Jin Long, we denied the
consolidated petition for review (Dkt. No. 09-3694-ag),
finding that: (1) the petitioner failed to exhaust, and
5
forfeited before this Court, any argument that the Chinese
government imputed a political opinion to him; (2) he did
not have any encounter with the Chinese authorities; and (3)
he was acting out of “family loyalty” by offering aid to his
North Korean uncle, aunt, and cousins. 620 F.3d at 168.
However, Jin’s case is distinguishable because he: (1)
claimed that he was persecuted on account of his political
opinion; (2) testified that he knew his conduct was illegal
before he joined the Yanbian Korean Association; and (3)
provided assistance to non-relatives out of a motivation to
support the return of the Yanbian region and to help North
Korean refugees. Cf. Jin Jin Long, 620 F.3d at 168.
Thus, because the agency failed to properly analyze
whether the harm Jin fears is on account of his political
opinion and more specifically whether the prosecution he
claims to face would be a pretext for persecution on account
of his political opinion, remand is appropriate to allow the
agency to determine whether it is more likely than not that
Jin’s life or freedom would be threatened on account of his
real or imputed political opinion if he were removed to
China. See Jin Jin Long, 620 F.3d 166-68.
6
Earlier this year we remanded a similar petition to the
BIA in Xiong Jin v. Holder, No. 10-3543 (2d Cir. Jan. 3,
2012). As more fully explained in the summary order in that
case, remand is required in this case for similar reasons.
For the foregoing reasons, the petition for review is
DISMISSED in part, DENIED in part, and GRANTED in part, and
the case is REMANDED for further proceedings consistent with
this order. As we have completed our review, the pending
motion for a stay of removal in this petition is DISMISSED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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