Huawen Liu v. Gonzales

SUMMARY ORDER

Petitioner Huawen Liu, a citizen of the People’s Republic of China, petitions for review from the December 28, 2004, order of the BIA, summarily affirming Immigration Judge (“IJ”) Helen Sichel’s September 8, 2003, decision denying his claims for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). In re Huawen Liu, No. A 78 727 281 (BIA), aff'g (Immig.Ct.N.Y.City). We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.

Where, as here, the BIA summarily affirms the IJ’s decision, we review the decision of the IJ directly. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the IJ’s findings of fact under the substantial evidence standard, overturning them only if “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004).

In light of our recent decision in Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255 (2d Cir.2006), we find that the IJ erred in failing to consider Liu’s claim that he faced future persecution because the Immigration and Naturalization Service’s (“INS”) revealed his name to Chinese authorities. See id. at 268-71. The fact that the INS did not explicitly reveal that Liu had applied for asylum does not, as the IJ found, mean that the Chinese government would not suspect that he had applied for asylum; simply revealing Liu’s name and asking questions related to his alleged imprisonment was sufficient to allow such an inference. Id. at 269-70.

Moreover, the IJ failed to consider the probative value of the letter from Liu’s mother that after the INS contacted Chinese authorities, they came to her home, told her that her son had betrayed China, and, shortly thereafter, both she and Liu’s sister were fired from their jobs. The IJ must consider probative evidence in the record, and it was error not to do so here. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir.2005). As these errors pervade the IJ’s evaluation of Liu’s fear of future persecution, we must remand for the agency to reconsider this issue as it relates to each of Liu’s claims for relief. Id. at 402.

However, we are without jurisdiction to review the BIA’s decision to streamline Liu’s appeal pursuant to 8 C.F.R. § 1003.1(e). See Kambolli v. Gonzales, 449 F.3d 454, 463 (2d Cir.2006).

For the foregoing reasons, the petition for review is GRANTED in part and DISMISSED in part, and the case is REMANDED for further proceedings consistent with this order. Having completed our review, Liu’s motion for a stay of removal is DENIED as moot.