Qiu Yu Weng v. Holder

13-3021-ag
Weng v. Holder
BIA
Vomacka, IJ
A 087 554 161
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
7 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
8 BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
9 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
10 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
11 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
12 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14
15 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
16 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
17 25th day of November, two thousand fourteen.
18
19 Present: ROSEMARY S. POOLER,
20 BARRINGTON D. PARKER,
21 RICHARD C. WESLEY,
22 Circuit Judges.
23 _____________________________________________________
24
25 QIU YU WENG,
26
27 Petitioner,
28
29 v. 13-3021-ag
30
31 ERIC H. HOLDER, JR., UNITED STATES
32 ATTORNEY GENERAL,
33
34 Respondent.
35 ____________________________________________________
36
37 Appearing for Petitioner: Joshua E. Bardavid (Eric Zheng, on the brief), New York, N.Y.
38
39 Appearing for Respondent: Colette J. Winston (Lindsay W. Zimliki, Attorney, Stuart F.
40 Delery, Assistant Attorney General, Anthony C. Payne, Senior
41 Litigation Counsel, on the brief), Office of Immigration Litigation,
42 U.S. Department of Justice, Washington, D.C.
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44
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1 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
2 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
3 petition for review is GRANTED.
4
5 Qiu Yu Weng, a native and citizen of the People’s Republic of China, seeks review of the
6 July 16, 2013 decision of the BIA affirming the December 5, 2011 decision of an Immigration
7 Judge (“IJ”), which denied her application for asylum, withholding of removal, and relief under
8 the Convention Against Torture (“CAT”). In re Qiu Yu Weng, No. A087 554 161 (B.I.A. July 16,
9 2013), aff’g No. A087 554 161 (Immig. Ct. N.Y. City Dec. 5, 2011). We assume the parties’
10 familiarity with the underlying facts and procedural history in this case.
11
12 Under the circumstances of this case, we have reviewed the decision of the IJ as modified
13 and supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Xue
14 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards
15 of review are well established. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
16
17 Here, the BIA declined to review the IJ’s credibility determination, but agreed with the
18 IJ’s conclusion that Weng did not meet her burden of proof because she failed to corroborate
19 adequately her claims of past persecution, and feared future persecution, in China on account of
20 her practice of Christianity. “In this posture, we may not rest our holding on the IJ’s credibility
21 findings,” if any, “because the BIA did not affirm and adopt those findings.” Yan Chen, 417 F.3d
22 at 271. Rather, we assume Weng’s “credibility as to [her] testimony concerning the events of
23 [her] past and as to [her] subjective fear of future persecution.” Id. at 271–72.
24
25 Under the REAL ID Act, the agency may require corroboration despite otherwise
26 credible testimony, unless it cannot be reasonably obtained. See 8 U.S.C. § 1158(b)(1)(B)(ii). To
27 deny an application for failure to provide such corroboration, the IJ must identify the relevant,
28 missing evidence and explain why such evidence is reasonably available. See Yan Juan Chen v.
29 Holder, 658 F.3d 246, 251–53 (2d Cir. 2011); Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir.
30 2009).
31
32 Weng applied for asylum alleging past persecution arising from her arrest by Chinese
33 officials for distributing Christian pamphlets. The police detained Weng for four days and struck
34 her shoulder a number of times. Weng’s mother secured her release by paying a fine to the
35 police. Weng subsequently lost her teaching job after the police informed the school of her
36 illegal religious activities. To corroborate this claim, Weng submitted a letter confirming her
37 arrest and detention from the friend who introduced Weng to the underground Christian church
38 she attended and the fine receipt.
39
40 In finding that Weng failed to meet her burden, the agency pointed to evidence missing
41 from the record: letters from Weng’s mother and brother; documentation of her teaching job; her
42 husband’s testimony regarding her current practice of Christianity; and province-specific country
43 conditions evidence. But the agency failed to address Weng’s evidence documenting her claim
44 for past persecution, i.e., her friend’s letter and the fine receipt, without explaining why other
45 documentation was necessary in light of this probative evidence.
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2
1 Where the agency’s fact-finding process was sufficiently flawed, this court may vacate
2 and remand for new findings. See Tian-Yong Chen v. INS, 359 F.3d 121, 128–29 (2d Cir. 2004)
3 (remanding where “both the BIA and the IJ overlooked potentially significant evidence
4 supporting [petitioner’s] applications for asylum”); see also Yan Chen, 417 F.3d at 272
5 (identifying “significant error” in BIA’s failure to consider background materials that
6 corroborated petitioner’s subjective fear of persecution). While the agency is not required to
7 “parse or refute” each piece of evidence, Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
8 338 n.17 (2d Cir. 2006), there must be some indication that the evidence has been considered,
9 Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir. 1992) (“[W]e cannot assume that the BIA
10 considered factors it failed to mention in its decision.”) (internal quotation marks omitted).
11
12 From the record before us, we are unable to discern whether the agency adequately
13 considered potentially significant evidence corroborating Weng’s claim that she was detained
14 and beaten on account of her Christian faith. Although the BIA assumed Weng testified credibly,
15 it neither referenced the letter and fine receipt nor explained why they were not entitled to be
16 credited. The IJ did not consider the letter and addressed the fine receipt only in relation to
17 credibility findings that the BIA declined to adopt.
18
19 We have previously cautioned that the agency must “be keenly sensitive to the fact that a
20 ‘minor beating’ or, for that matter, any physical degradation designed to cause pain, humiliation,
21 or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or
22 detention on the basis of a protected ground.” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.
23 2006); see also Tian-Yong Chen, 359 F.3d at 128. Because it is not clear in these circumstances
24 that “the agency would adhere to its prior decision” if it were to assess the record accurately, see
25 Xiao Ji Chen, 471 F.3d at 338, we remand the petition to the agency to reconsider its decision
26 taking into account the evidence Weng submitted.
27
28 For the foregoing reasons, the petition for review is GRANTED.
29
30 FOR THE COURT:
31 Catherine O’Hagan Wolfe, Clerk
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