DocketNumber: 13-3056
Citation Numbers: 586 F. App'x 815
Filed Date: 10/23/2014
Status: Non-Precedential
Modified Date: 1/13/2023
13-3056 Jin v. Holder BIA Vomacka, IJ A200 733 629 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 23rd day of October, two thousand fourteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 CHUNHONG JIN, 14 Petitioner, 15 16 v. 13-3056 17 NAC 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Evan Goldberg, Of Counsel, Law 25 Office of Theodore M. Davis, New 26 York, New York. 27 28 29 1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 2 General; Jennifer L. Lightbody; 3 Robbin K. Blaya, Trial Attorney, 4 Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, D.C. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is GRANTED. 12 Chunhong Jin, a native and citizen of the People’s 13 Republic of China, seeks review of a July 29, 2013, decision 14 of the BIA affirming the May 4, 2012, decision of 15 Immigration Judge (“IJ”) Alan A. Vomacka, denying her 16 asylum, withholding of removal, and relief under the 17 Convention Against Torture (“CAT”). In re Chunhong Jin, No. 18 A200 733 629 (B.I.A. July 29, 2013), aff’g No. A200 733 629 19 (Immig. Ct. N.Y. City May 4, 2012). We assume the parties’ 20 familiarity with the underlying facts and procedural history 21 in this case. 22 Under the circumstances of this case, we have reviewed 23 the IJ’s decision as modified by the BIA, i.e., minus the 24 basis for denying relief that the BIA expressly declined to 25 consider (the IJ’s adverse credibility determination). See 26 Xue Hong Yang v. U.S. Dep’t of Justice,426 F.3d 520
, 522 2 1 (2d Cir. 2005); see also Yan Chen,417 F.3d 268
, 271 (2d 2 Cir. 2005). The applicable standards of review are well 3 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 4 Holder,562 F.3d 510
, 513 (2d Cir. 2009). The only issue 5 before us is the agency’s denial of withholding of removal 6 based on its determination that Jin failed to demonstrate a 7 nexus between the harm she suffered and feared and a 8 protected ground. 9 In Jin Jin Long v. Holder,620 F.3d 162
(2d Cir. 2010), 10 we remanded to the BIA for further consideration of the 11 petitioner’s claim that he was persecuted on account of his 12 political opinion when he was arrested, detained, and beaten 13 for providing assistance to North Korean refugees who had 14 illegally entered China.* In doing so, we noted that the 15 Chinese government’s arrests of individuals suspected of 16 aiding North Korean refugees “can be seen as enforcement of 17 the law (assuming there is a law prohibiting assistance to 18 North Korean refugees), but it [might] also suggest an * In Jin Jin Long, we denied a second petition raising a similar claim because that petitioner did not argue that officials imputed a political opinion to him and because the record did not support an inference that the petitioner (who was neither arrested nor harmed) acted from a political motive or that government officials were investigating him as an attempt atsuppression. 620 F.3d at 168
. 3 1 active resistance to China’s North Korean immigration 2 policies, and an attempt at suppression.”Id. at 167.
3 Although the petitioner “testified that his conduct was 4 humanitarian or charitable, and did not cast his motives as 5 political,” we found that “the BIA failed to consider a 6 number of facts that may support an inference that his 7 arrest and detention were pretextual.”Id. Specifically, 8
the petitioner had testified credibly that: (1) he was never 9 formally charged or brought before a judge; (2) he was 10 “subjected to prolonged detention and repeated physical 11 abuse”; and (3) “U.S. State Department country reports on 12 China suggest[ed] that the North Korean refugee issue is 13 politically charged.”Id. Therefore, we
remanded for the 14 BIA to determine “whether there is a law barring assistance 15 to North Koreans, and (whether there is or not) in what 16 circumstances persecution of those who assist North Korean 17 refugees would constitute persecution on account of a 18 protected ground.”Id. at 164;
see alsoid. at 167-68.
19 We find that remand is warranted for similar reasons in 20 the present case. The BIA attempted to distinguish Jin’s 21 case from Jin Jin Long because the IJ focused on Jin’s 22 admission that she had given her North Korean cousin money 4 1 to enter China in violation of immigration laws. However, 2 the record does not support the IJ’s assumption that Jin was 3 charged and punished for violating a generally applicable 4 anti-smuggling law. In addition, as in Jin Jin Long, the 5 agency simply ignored evidence that the Chinese government 6 did not formally charge Jin with any crime and that police 7 subjected her to a lengthy detention and repeated physical 8 abuse, from which one could infer that her arrest and 9 detention were pretextual. See Jin JinLong, 620 F.3d at 10
167-68. 11 Accordingly, because the agency assumed, without 12 support, that Jin was legitimately prosecuted for smuggling, 13 and ignored evidence that supported the inference that her 14 detention was a pretext for persecution on account of an 15 imputed political opinion, remand is appropriate. Seeid. 16 For
the foregoing reasons, the petition for review is 17 GRANTED, and the case is REMANDED for further proceedings 18 consistent with this order. 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 23 5