09-2360-ag
Chen v. Holder
BIA
Chew, IJ
A094 824 646
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 16 th day of June, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 REENA RAGGI,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 YAN CHEN,
14 Petitioner,
15
16 v. 09-2360-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
1
2 FOR RESPONDENT: Tony West, Assistant Attorney
3 General, Civil Division; Emily Anne
4 Radford, Assistant Director; Jesse
5 D. Lorenz, Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, D.C.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is GRANTED.
13 Petitioner Yan Chen, a native and citizen of the
14 People’s Republic of China, seeks review of a May 7, 2009
15 order of the BIA affirming the August 31, 2007 decision of
16 Immigration Judge (“IJ”) George T. Chew denying his
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Yan
19 Chen No. A094 824 646 (B.I.A. May 7, 2009), aff’g No. A094
20 824 646 (Immig. Ct. N.Y. City Aug. 31, 2007). We assume the
21 parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 Under the circumstances of this case, we review the
24 IJ’s decision as modified by the BIA. See Xue Hong Yang v.
25 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
26 The applicable standards of review are well-established.
27 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
2
1 F.3d 510, 513 (2d Cir. 2009); Edimo-Doualla v. Gonzales, 464
2 F.3d 276, 281-82 (2d Cir. 2006).
3 Chen claimed that when his wife became pregnant for a
4 second time, she went into hiding. When the authorities
5 came to search for her, Chen refused to reveal her
6 whereabouts. As a result, he claims, they detained him for
7 three days and beat him. Neither the IJ nor the BIA found
8 that Chen was not credible. Nevertheless, both concluded
9 that he had not experienced past persecution. The IJ stated
10 that Chen “was beaten while he was in China.” IJ Op. at 4.
11 The IJ noted that Chen “was released after three days, and
12 his wife did have a second child. The wife was never
13 aborted nor sterilized, nor was the respondent sterilized.”
14 Id. The IJ concluded that Chen did not suffer past
15 persecution, but did not address Chen’s beating or detention
16 in his analysis, focusing instead on the 25,000 RMB fine
17 imposed on Chen and his wife. For its part, the BIA found
18 that Chen’s testimony regarding his detention and beating
19 was “vague and conclusory.” BIA Op. at 2. Neither finding
20 was a sufficient basis upon which to deny relief.
21 We have stated that the agency must be “keenly
22 sensitive to the fact that a ‘minor beating’ or, for that
23 matter, any physical degradation designed to cause pain,
3
1 humiliation, or other suffering, may rise to the level of
2 persecution if it occurred in the context of an arrest or
3 detention on the basis of a protected ground.” Beskovic v.
4 Gonzales, 467 F.3d 223, 226 (2d Cir. 2006). The IJ’s
5 conclusory treatment of Chen’s beating and the IJ’s implicit
6 conclusion that it did not constitute persecution are
7 insufficient to permit meaningful review. See id. at 327.
8 The BIA’s finding was similarly insufficient. When the
9 agency finds that an applicant’s testimony is vague, it may
10 probe for additional details seeking to draw out
11 inconsistencies that would support an adverse credibility
12 determination, but it may not deny the claim simply on
13 vagueness grounds when the testimony is sufficiently
14 specific as to the essential facts so as to state a prima
15 facie case. Jin Chen v. U.S. Dep’t of Justice, 426 F.3d
16 104, 114 (2d Cir. 2005). Here, the IJ assumed that Chen was
17 credible. Moreover, given our holding in Beskovic, Chen’s
18 testimony was not so vague that he failed to state a valid
19 claim that he had been persecuted. See id.; Jin Shui Qiu v.
20 Ashcroft, 329 F.3d 140, 151 (2d Cir. 2003), overruled on
21 other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494
22 F.3d 296 (2d Cir. 2007). The BIA thus erred in assuming
23 that Chen had established the requisite nexus to a protected
4
1 ground but finding no past persecution based on its
2 conclusion that Chen’s testimony was impermissibly vague.
3 See Jin Chen, 426 F.3d at 114.
4 Because the BIA assumed without deciding that Chen’s
5 conduct “of helping his wife hide from family planning
6 officials and hiring a doctor to have [her] IUD removed”
7 constituted resistance to China’s family planning policies,
8 BIA Op. at 2, we do not reach this issue. We conclude
9 simply that remand here is necessary because the agency
10 failed adequately to support its finding that Chen did not
11 suffer past persecution.
12 For the foregoing reasons, the petition for review is
13 GRANTED, and the case REMANDED for further proceedings
14 consistent with this order. As we have completed our
15 review, any pending motion for a stay of removal in this
16 petition is DISMISSED as moot. Any pending request for oral
17 argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
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