09-4356-ag
Chen v. Holder
BIA
Schoppert, IJ
A094 787 498
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1 st day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
___________________________________
MING DONG CHEN,
Petitioner,
v. 09-4356-ag
NAC
ERIC H. HOLDER, Jr., U.S. ATTORNEY
GENERAL,
Respondent.
___________________________________
FOR PETITIONER: Sheema Chaudhry, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Stephen J. Flynn, Assistant Director,
Imran R. Zaidi, Trial Attorney, Office
of Immigration Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is GRANTED, and the case is REMANDED.
Petitioner Ming Dong Chen, a native and citizen of the
People’s Republic of China, seeks review of a September 30,
2009, order of the BIA affirming the January 2, 2008, decision
of Immigration Judge (“IJ”) Douglas B. Schoppert, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Ming Dong
Chen, No. A094 787 498 (B.I.A. Sept. 30, 2009), aff’g No. A094
787 498 (Immig. Ct. N.Y. City Jan. 2, 2008). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Under the circumstances of this case, we review both the
BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). The applicable standards of
review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
A. Family Planning Claim
Chen does not challenge the agency’s finding that he
failed to demonstrate a well-founded fear of persecution based
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on any “other resistance” to China’s family planning policy.
With regard to Chen’s economic persecution claim, the agency
did not err in finding that he failed to establish his
eligibility for relief. We have held that to present a
cognizable claim of economic persecution, “an asylum applicant
must offer some proof that [he] suffered a deliberate
imposition of substantial economic disadvantage.” Guan Shan
Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 69-70 (2d Cir.
2002). Here, Chen did not provide any evidence that would
support a finding that the economic difficulties he faced were
“above and beyond those generally shared by others in the
country of origin and involve noticeably more than mere loss
of social advantages or physical comforts.” See Matter of T-
Z-, 24 I. & N. Dec. 163, 170-73 (BIA 2007).
B. Falun Gong Claim
With regard to Chen’s claim that he suffered past
persecution because he practiced Falun Gong, the IJ’s adverse
credibility determination is significantly flawed. The IJ
relied on what he believed were two inconsistencies, one
between petitioner’s testimony and his asylum application, and
another between his testimony on direct and cross examination.
As to the first inconsistency, the IJ reported that Chen
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testified, with reference to the second time when he was taken
to a police station in June 2005, “that he was ‘brutally
beaten,’ . . . .” IJ Oral Decision at 7. In Chen’s
application for asylum, the IJ further reported, Chen “did not
indicate that he was ever brutally beaten by the police.” Id.
In dismissing Chen’s administrative appeal, the BIA also
asserted that Chen’s asylum application made no mention of a
beating. BIA Decision at 2 In fact, Chen’s asylum application
clearly states, “The police beat me . . . .”
Resisting Chen’s petition to this Court, the Government
states, “While Chen briefly mentioned that the police beat him
on this occasion in his asylum application, he did not provide
any details . . . .” Brief for Respondent at 21. This bold
attempt to gloss over the glaring flaw in the IJ’s decision is
unavailing. The IJ simply overlooked Chen’s allegation in his
asylum application that he had been beaten while in police
custody. Since this was one of the two inconsistencies that
the IJ relied on to find Chen not credible, that finding is
significantly undermined. See Cao He Lin v. U.S. Dep’t of
Justice, 428 F.3d 391, 406 (2d Cir. 2005) (“The court will
vacate and remand for new findings if the BIA’s reasoning or
the fact-finding process was sufficiently flawed.").
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The IJ states that the second inconsistency “relates to
[Chen’s] testimony regarding when he initially began
practicing Falun Gong, which, according to his testimony today
and the [asylum application] statement was in January 1999.”
IJ Oral Decision at 5. The IJ further reported that Chen
testified on direct examination that the practice of Falun
Gong was illegal when he began practicing in January 1999, but
that the Falun Gong was declared illegal in July 1999. See id.
The IJ appears to have assumed that Chen was linking his
start of practicing Falun Gong to the month when the Falun
Gung was declared illegal, thereby creating an inconsistency
between a starting month of January and July. However, Chen
consistently testified that he began practicing Falun Gong in
January. His inconsistency arose from providing different
months when the Falun Gong was declared illegal. Whether this
inconsistency alone would have led the IJ to find that Chen
lacked credibility, and, if so, whether such a finding would
have been supportable, are matters best left for consideration
after a remand for reconsideration in light of this opinion.
We cannot be confident that the second inconsistency alone
would have led to the same credibility finding. See Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.
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2006) (“This Court should remand the proceedings because it
cannot be confidently predicted that the agency would make the
same decision absent the identified errors.").
For the foregoing reasons, the petition for review is
GRANTED, and the matter is REMANDED. As we have completed our
review, any stay of removal that the Court previously granted
in this petition is VACATED as moot, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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