Pan v. United States Department of Justice

10-3519-ag
Pan v. US DOJ
BIA
Weisel, IJ
A089 253 745
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 New
4 York, on the 25th day of April, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 ZI BIN PAN,
14 Petitioner,
15
16 v. 10-3519-ag
17 NAC
18 UNITED STATES DEPARTMENT OF JUSTICE,
19 ATTORNEY GENERAL, IMMIGRATION &
20 NATURALIZATION SERVICE,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Cora J. Chang, New York, New York.
25
26 FOR RESPONDENTS: Tony West, Assistant Attorney General;
27 Keith I. McManus, Senior Litigation
28 Counsel; Jessica E. Sherman, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
32
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 GRANTED.
5 Petitioner Zi Bin Pan, a native and citizen of the
6 People's Republic of China, seeks review of an August 24,
7 2010, order of the BIA, affirming the July 16, 2008, decision
8 of Immigration Judge (“IJ”) Robert Weisel, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Zibin
11 Pan, No. A089 253 745 (B.I.A. Aug. 24, 2010), aff’g No. A089
12 253 745 (Immig. Ct. N.Y. City July 16, 2008). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 After concluding that Pan suffered minor injuries during
22 his brief detention based on his “other resistance” to China’s
23 family planning policy, the IJ determined that Pan failed to
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1 establish past persecution because "[p]ersecution . . .
2 requires a showing that the injury is severe and long-lasting.
3 Neither [Pan's] detention nor the injuries allegedly suffered
4 by [him] in the Court's view are so severe and so long-lasting
5 that they amount to injuries that could be fairly described
6 that resulted in the [his] persecution." However, only
7 grants of "humanitarian asylum" under 8 C.F.R. §
8 1208.13(b)(1)(iii)(A) require the applicant to demonstrate
9 "long-lasting physical or mental effects of his persecution."
10 Jalloh v. Gonzales, 498 F.3d 148, 152 (2d Cir. 2007).
11 Persecution in the context of an asylum application under 8
12 U.S.C. § 1158, in contrast, may be based on harm other than
13 threats to life or freedom, including non-life-threatening
14 violence and physical abuse. Beskovic v. Gonzales, 467 F.3d
15 223, 226 n.3 (2d Cir. 2006). We have noted that "a minor
16 beating or, for that matter, any physical degradation designed
17 to cause pain, humiliation, or other suffering, may rise to
18 the level of persecution if it occurred in the context of an
19 arrest or detention on the basis of a protected ground." Id.20 at 226 (quotation omitted).
21 In requiring Pan to demonstrate severe and long-lasting
22 injuries in order to establish past persecution, the IJ
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1 improperly applied the heightened standard applicable to
2 claims for humanitarian asylum. Where, as here, we "cannot
3 determine whether the IJ correctly assessed [Pan's] claim of
4 past persecution . . . remand [is necessary] since we cannot
5 predict with confidence that, applying the correct legal
6 standards, the agency would again deny relief." Id. at 227
7 (citing Rafiq v. Gonzales, 458 F.3d 36, 38-39 (2d Cir. 2006)
8 (per curiam)).
9 The BIA appears to have noted the IJ's error in citing
10 the standard for humanitarian asylum, and attempted to cure it
11 by explaining that "the [IJ] concluded that [Pan] did not show
12 that any injury occurred in this case, [and therefore, he] did
13 not meet any of the applicable standards for establishing past
14 persecution." However, this statement is not supported by the
15 record, as the IJ specifically found that Pan suffered
16 "injuries [that] were minor." Moreover, to the extent that
17 the BIA attempts to make an independent factual determination
18 that Pan did not suffer any injury, it is barred from doing
19 so. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296 (2d Cir. 2006)
20 (noting that "the BIA may only review the IJ's factual
21 findings to determine whether they are clearly erroneous, and
22 may not engage in fact-finding") (citing 8 C.F.R. §§
23 1003.1(d)(3)(i), (iv)).
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1 In addition, the BIA's decision is flawed because it was
2 predicated on the mistaken belief that "in the instant case
3 [Pan] was not detained." Contrary to the BIA's statement, the
4 IJ specifically concluded that Pan was subjected to “detention
5 [that] was brief.” Therefore, because the BIA did not
6 consider Pan's testimony that he was detained, "its decision
7 is fatally flawed and we are unable adequately to consider
8 whether substantial evidence supports the BIA's determination
9 that [Pan] failed to establish either past persecution or a
10 well-founded fear of future persecution." Tian-Yong Chen v.
11 U.S. I.N.S., 359 F.3d 121, 128 (2d Cir. 2004).
12 Lastly, the agency's finding that Pan failed to establish
13 a well-founded fear of future persecution does not obviate the
14 need to remand. An applicant who has demonstrated past
15 persecution is entitled to a presumption of the likelihood of
16 future persecution, thereby shifting the burden of proof to
17 the government to rebut the presumption. See 8 C.F.R. §
18 1208.16(b)(1)(i); Makadji v. Gonzales, 470 F.3d 450, 458 (2d
19 Cir. 2006). Thus, because the agency failed to properly
20 consider Pan's claim of past persecution, his failure to
21 demonstrate a well-founded fear of future persecution does not
22 preclude remand. See Beskovic, 467 F.3d at 227 ("Whether or
23 not [the applicant] is entitled to a presumption of future
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1 persecution requires a determination, based on the correct
2 legal standard, of whether he suffered past persecution.")
3 For the foregoing reasons, the petition for review is
4 GRANTED and the case is REMANDED to the BIA for further
5 proceedings consistent with this order. As we have completed
6 our review, any stay of removal that the Court previously
7 granted in this petition is VACATED, and any pending motion
8 for a stay of removal in this petition is DENIED as moot. Any
9 pending request for oral argument in this petition is DENIED
10 in accordance with Federal Rule of Appellate Procedure
11 34(a)(2), and Second Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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