15-633
Lian v. Lynch
BIA
Poczter, IJ
A205 237 023
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of August, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 HUA LIAN,
14 Petitioner,
15
16 v. 15-633
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Norman Kwai Wing Wong, New York,
24 N. Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John S.
28 Hogan, Senior Litigation Counsel;
29 Nicole N. Murley, Trial Attorney,
1 Office of Immigration Litigation,
2 U.S. Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 GRANTED, and the matter is REMANDED.
9 Petitioner Hua Lian, a native and citizen of the People’s
10 Republic of China, seeks review of a February 10, 2015 decision
11 of the BIA, affirming a June 19, 2013 decision of an Immigration
12 Judge (“IJ”) denying Lian’s application for asylum, withholding
13 of removal, and relief under the Convention Against Torture
14 (“CAT”). In re Hua Lian, No. A205 237 023 (B.I.A. Feb. 10,
15 2015), aff’g No. A205 237 023 (Immig. Ct. N.Y. City June 19,
16 2013). We assume the parties’ familiarity with the underlying
17 facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed both
19 the IJ’s and the BIA’s decisions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
21 2006). The applicable standards of review are well
22 established. 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder,
23 575 F.3d 193, 196 (2d Cir. 2009).
24 Lian testified to past persecution in China because of her
2
1 observance of religious practices. She testified that she was
2 arrested, detained, and beaten. She corroborated that
3 testimony with witness statements, a detention certificate, and
4 medical evidence. The IJ found Lian’s testimony of past
5 persecution credible, ROA 34-35, and did not request evidence
6 corroborating her claim of past persecution. However, the IJ
7 did not make a determination whether Lian’s evidence sufficed
8 to sustain her burden of proof to establish past persecution.
9 Instead, the IJ considered whether she had established an
10 objectively reasonable fear of future persecution, and
11 concluded that she had not because she had failed to present
12 available evidence corroborating her claim of observance of
13 religious practices in the United States. Id. 35.
14 The BIA’s opinion recited Lian’s testimony about past
15 persecution in China, including her arrest, detention, and
16 beating, because of her observance of religious practices. Id.
17 3. The BIA did not mention the IJ’s finding that this testimony
18 was credible nor consider whether Lian’s evidence, including
19 that testimony, sufficed to sustain her burden of proof to
20 establish past persecution. Instead, like the IJ, the BIA went
21 directly to the claim of fear of future persecution and upheld
22 the IJ’s denial “because [Lian] did not provide sufficient
3
1 corroborating evidence,” id. 4, i.e., evidence corroborating
2 her observance of religious practices in the United States.
3 We are skeptical about the way the agency disposed of Lian’s
4 asylum claim. We have found no case from the BIA or our Court
5 and no regulation permitting the agency, in a case where an
6 applicant claims past persecution, to fail to determine whether
7 the applicant has sustained her burden of proof as to that claim
8 and instead move on to a claim of future persecution, deny it,
9 and thereby deny asylum.1
10 The failure to determine whether Lian established past
11 persecution appears to be error. See Beskovic v. Gonzales, 467
1
The Government cites three summary orders of our Court
that it asserts support the BIA’s action in this case. Br. for
Respondent 28-29. Apart from the fact that these unpublished
orders are not precedential, none of them permits what the BIA
did here. In Feng Chen v. Holder, 475 F. App’x 377 (2d Cir. 2012),
the applicant claimed past persecution, but the agency ruled
that the facts alleged did not rise to the level of persecution
and only then found corroboration lacking as to future harm.
See id., No. 10-4974, ROA 4 (BIA opinion 2). In Yanqui Lin v.
Lynch, 618 F. App’x 714 (2d Cir. 2015), the applicant made no
claim of past persecution and claimed only fear of future
persecution. Lack of corroboration of the testimony
supporting that claim was deemed a sufficient basis for denying
the claim. See id., No. 14-1232, ROA 4-5 (BIA opinion 203). In
Mei Hua Piao v. Holder, 561 F. App’x 69 (2d Cir. 2014), the
applicants claimed past persecution, and the corroboration
found lacking related to past harm, not future harm. See id.,
No. 12-4470, ROA 4 (BIA opinion 2). Furthermore, the IJ did
not believe that the applicants were credible. The IJ said, “The
court concludes that it appears that . . . neither [applicant]
can be considered credible.” Id., ROA 52 (IJ opinion 16).
4
1 F.3d 223, 227 (2d Cir. 2006) (rejection of past persecution
2 claim erroneous for failure to consider evidence supporting
3 claim). Past persecution, if established, would have made Lian
4 eligible for asylum. See 8 U.S.C. §§ 1101(a)(42),
5 1158(b)(1)(A); 8 C.F.R. § 1208.13(b). Furthermore, the
6 failure to determine whether past persecution was established
7 deprived Lian of the opportunity to benefit from the presumption
8 of a well founded fear of future persecution that arises from
9 past persecution, see id. § 208.13(b)(i); Dong Zhong Zheng v.
10 Mukasey, 552 F.3d 277, 284 (2d Cir. 2009), a presumption that
11 could be rebutted only if the IJ makes specific findings
12 concerning either changed circumstances or relocation, with the
13 burden of proof on the Government with respect to such findings.
14 See 8 C.F.R. § 1208.13(b)(1)(i), (ii).
15 Because the agency has not explained why it was entitled
16 to act in the unusual manner shown by the record in this case,
17 the appropriate course is to remand the matter to the agency
18 to afford it the opportunity to provide such an explanation.
19 “Despite our generally deferential review of IJ and BIA opinions
20 denying asylum, we require a certain minimum level of analysis
21 from the IJ and BIA opinions denying asylum, and indeed must
22 require such if judicial review is to be meaningful.” Poradisova
5
1 v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005). Specifically, the
2 BIA should either explain why it believes it and the IJ were
3 entitled to consider the applicant’s claim of fear of future
4 persecution without first determining whether she had
5 established her claim of past persecution (and thereby gained
6 a presumption of a well founded fear of persecution), or abandon
7 that approach and remand to the IJ for a determination whether
8 the claim of past persecution was established (in which event
9 she would be eligible for asylum).
10 For the foregoing reasons, the petition for review is
11 GRANTED, and the matter is REMANDED for further proceedings not
12 inconsistent with this order. Any subsequent petition for
13 review will be referred to this panel.
14
15 FOR THE COURT:
16 Catherine O=Hagan Wolfe, Clerk
6