Qihui Weng-Lin v. Holder

11-797-ag
Weng-Lin v. Holder
BIA
Chew, IJ
A098 350 935
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 3rd day of May, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROBERT A. KATZMANN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 QIHUI WENG-LIN,
14 Petitioner,
15
16 v. 11-797-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Dehai Zhang, Flushing,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Linda S. Wernery, Assistant
28 Director; Theodore C. Hirt,
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
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
4 is GRANTED.
5 Petitioner Qihui Weng-Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a February 11,
7 2011 order of the BIA, reversing the December 11, 2008
8 decision of an immigration judge (“IJ”), which granted his
9 application for asylum. In re Qihui Weng-Lin, No. A098 350
10 935 (B.I.A. Feb. 11, 2011), rev’g No. A098 350 935 (Immig.
11 Ct. N.Y. City Dec. 11, 2008). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case, which we reference only as necessary to
14 explain our decision.
15 Where the BIA does not adopt the IJ’s decision in any
16 part, we review only the decision of the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
20 513 (2d Cir. 2009).
21 The BIA failed to sufficiently articulate its reasoning
22 for concluding that Weng-Lin failed to establish membership
23 in a “particular social group” as required under the
2
1 Immigration and Nationality Act (“INA”), 8 U.S.C. §
2 1158(b)(1)(B)(i). See Beskovic v. Gonzales, 467 F.3d 223,
3 227 (2d Cir. 2006) (requiring a certain minimal level of
4 analysis from agency decisions denying asylum to enable
5 meaningful judicial review); Ucelo-Gomez v. Gonzales, 464
6 F.3d 163, 170 (2d Cir. 2006) (requiring the agency to make a
7 particular social group finding with “sufficient clarity”).
8 In Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir.
9 2007), we upheld the BIA’s three-part framework for
10 assessing the validity of a particular social group under
11 the INA. However, the BIA failed to evaluate Weng-Lin’s
12 social group under this three-part framework or offer more
13 than a cursory analysis of his claim. As a result, we
14 remand to the BIA so that it may provide a meaningful
15 analysis of Weng-Lin’s social group claim. See Gonzales v.
16 Thomas, 547 U.S. 183, 186-87 (2006) (per curiam);
17 Ucelo-Gomez, 464 F.3d at 170.
18 Similarly, the BIA failed to address the IJ’s finding
19 that Weng-Lin established a well-founded fear of persecution
20 based on his political opinion, and failed to sufficiently
21 state its justification for finding that Weng-Lin failed to
22 show that he feared persecution on account of an imputed
3
1 political opinion. See Beskovic, 467 F.3d at 227; Yueqing
2 Zhang v. Gonzales, 426 F.3d 540, 547 (2d Cir. 2005). We
3 have held that “determining whether a given individual’s
4 attempt to oppose or alter a government’s economic practices
5 manifests a political opinion requires examination of the
6 ‘political context’ in which the dispute took place in order
7 to determine whether the dispute bears a ‘political
8 dimension.’” Yueqing Zhang, 426 F.3d at 547. In reversing
9 the IJ’s grant of asylum, however, the BIA noted only that
10 “[Weng-Lin] has not established that he retaliated against
11 government corruption.” Certified Administrative Record
12 (“C.A.R.”) 4. Because the BIA’s finding is devoid of any
13 reasoning, we remand to the BIA so that it can provide a
14 meaningful analysis of Weng-Lin’s political and imputed
15 political opinion claims, as this Court is unable to
16 determine whether substantial evidence supports BIA’s
17 determination. See Beskovic, 467 F.3d at 227; Tian-Yong
18 Chen v. INS, 359 F.3d 121, 127-28 (2d Cir. 2004).
19 In addition, the BIA erred by failing to apply clear
20 error review to the IJ’s factual findings concerning the
21 adequacy of the consideration promised in exchange for Weng-
22 Lin’s family’s land. See De La Rosa v. Holder, 598 F.3d
41 103, 107-08 (2d Cir. 2010); 8 C.F.R. § 1003.1(d)(3)(i). The
2 BIA may “not engage in de novo review of findings of fact
3 determined by an immigration judge. Facts determined by the
4 immigration judge, including findings as to the credibility
5 of testimony, [are] reviewed [by the BIA] only to determine
6 whether the findings of the immigration judge are clearly
7 erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). Although the IJ
8 found Weng-Lin’s testimony – that the Chinese government
9 promised to pay his family only one-tenth of land’s fair
10 value – credible, the BIA nevertheless determined, without
11 identifying any error in the IJ’s analysis, that Weng-Lin’s
12 “claim that local official offered his family less money
13 than their land was worth [was] not substantiated in the
14 record.” C.A.R. 4. Accordingly, we remand to the BIA to
15 review the IJ’s factual findings under the deferential clear
16 error standard of review. See Fen Yong Chen v. Bureau of
17 Citizenship and Immigration Servs., 470 F.3d 509, 515 (2d
18 Cir. 2006).
19 Because the BIA also erred in placing the burden of
20 proof on Weng-Lin to demonstrate that he could not relocate
21 within China to avoid persecution, the BIA’s relocation
22 finding cannot support the denial of asylum. Where, as
23 here, the alleged persecution is government-sponsored,
5
1 Weng-Lin “enjoys a regulatory presumption that ‘internal
2 relocation would not be reasonable.’” Kone v. Holder, 596
3 F.3d 141, 150 n.8 (2d Cir. 2010); 8 C.F.R. §
4 1208.13(b)(3)(ii). The BIA thus erroneously concluded that
5 Weng-Lin could reasonably relocate to Fuzhou because he
6 “[was] unable to show that his risk of persecution is
7 countrywide.” C.A.R. 4. While the BIA did note that
8 Weng-Lin managed to live in Fuzhou without harm for two
9 years, “the government cannot satisfy its burden to
10 demonstrate that [Weng-Lin] will not be threatened simply by
11 showing that [he] enjoyed periods with no new persecution or
12 that [he] will not perpetually be persecuted in [his] native
13 country.” Kone, 596 F.3d at 150. Accordingly, we remand to
14 the BIA to properly apply the regulatory presumption that
15 internal relocation would not be reasonable in evaluating
16 Weng-Lin’s petition. On remand, we encourage to the BIA to
17 articulate its justification for any relocation finding with
18 reference to the factors listed in 8 C.F.R. § 1208.13(b)(3).
19 Finally, with respect to Weng-Lin’s claim for relief
20 under the Convention Against Torture (“CAT”), the BIA
21 improperly determined that Weng-Lin “[had] not established
22 the existence of any past torture, or fear of future
23 torture. Nor is there any indication of government
6
1 acquiescence or involvement.” C.A.R. 4. The IJ found Weng-
2 Lin’s testimony that he was arrested and beaten by Chinese
3 police credible. The BIA’s determination that “there is no
4 indication of government acquiescence or involvement,” id.,5 without identifying any error in the IJ’s analysis,
6 constitutes an impermissible alternative factual finding.
7 See De La Rosa, 598 F.3d at 107-08; 8 C.F.R. §
8 1003.1(d)(3)(i). Accordingly, on remand, the BIA should
9 review the IJ’s factual findings under the deferential clear
10 error standard of review. See Fen Yong Chen, 470 F.3d at11 515.
12 For the foregoing reasons, the petition for review is
13 GRANTED and the case is REMANDED to the BIA for further
14 proceedings consistent with this order. As we have
15 completed our review, the pending motion for a stay of
16 removal in this petition is DISMISSED as moot. Any pending
17 request for oral argument in this petition is DENIED in
18 accordance with Federal Rule of Appellate Procedure
19 34(a)(2), and Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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