17-687 Jin v. Barr BIA Vomacka, IJ A087 980 955 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 23rd day of May, two thousand nineteen. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 BARRINGTON D. PARKER, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 CHUNHUA JIN, 14 Petitioner, 15 16 v. 17-687 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Mike P. Gao, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Terri J. 27 Scadron, Assistant Director; 28 Anthony W. Norwood, Senior 29 Litigation Counsel, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 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
8 is GRANTED in part and DENIED in part.
9 Petitioner Chunhua Jin, a native and citizen of the
10 People’s Republic of China, seeks review of a February 10,
11 2017, decision of the BIA affirming a November 2, 2015,
12 decision of an Immigration Judge (“IJ”) denying her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Chunhua
15 Jin, No. A 087 980 955 (B.I.A. Feb. 10, 2017), aff’g No. A 087
16 980 955 (Immig. Ct. N.Y. City Nov. 2, 2015). We assume the
17 parties’ familiarity with the underlying facts and procedural
18 history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decisions as modified by the BIA, i.e., without
21 reaching the IJ’s adverse credibility or corroboration
22 rulings. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
23 F.3d 520, 522 (2d Cir. 2005). Because the BIA declined to 2 1 reach the IJ’s adverse credibility finding, we assume that
2 Jin testified credibly. Mei Fun Wong v. Holder, 633 F.3d 64,
3 68 (2d Cir. 2011).
4 I. Asylum & Withholding of Removal
5 To obtain asylum or withholding of removal, Jin was
6 required to “establish that race, religion, nationality,
7 membership in a particular social group, or political opinion
8 was or will be at least one central reason for” the claimed
9 persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A);
10 Matter of C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010)
11 (extending the “one central reason” standard to withholding
12 of removal). Jin argues that she was arrested based on her
13 actual or imputed political opinion because of her role in
14 organizing a shopkeepers’ protest against the municipal
15 government’s rent increase. We agree that the agency should
16 more fully consider the circumstances because, contrary to
17 the agency’s analysis, Jin was protesting a municipal
18 government policy, not the corruption of a government
19 official.
3 1 We have cautioned against adopting an “impoverished view
2 of what political opinions are, especially in a country
3 . . . where certain democratic rights have only a tenuous
4 hold.” Osorio v. INS, 18 F.3d 1017, 1030 (2d Cir. 1994). In
5 Osorio, we concluded that a Guatemalan union leader, made out
6 a political opinion claim: his union leadership and
7 participation in strikes and protests “clearly evince[d] the
8 political opinion that strikes by municipal workers should be
9 legal and that workers should be given more rights,” and the
10 Guatemalan government viewed the union’s activities as a
11 political threat to the government’s policies. Id. at 1029-
12 31.
13 Jin’s situation is distinguishable from the anti-
14 corruption cases that the agency relied on because she opposed
15 a government policy rather than individual officials’ corrupt
16 conduct. The municipal government’s rent increase for
17 shopkeepers in the Hunchun Light Industry Market cannot be
18 said to be an “isolated, aberrational act[] of greed or
19 malfeasance” in the same way that an official’s unauthorized
20 acts of extortion or embezzlement could be; the rent increase
4 1 was the city’s official policy. Yueqing Zhang v. Gonzales,
2 426 F.3d 540, 547-48 (2d Cir. 2005).
3 Further, even assuming that the anti-corruption case law
4 applies, the fact that Jin opposed the rent increase out of
5 economic self-interest does not necessarily foreclose her
6 political opinion claim. See id. (holding that “opposition
7 to endemic corruption or extortion, no less than opposition
8 to other government policies or practices, may have a
9 political dimension when it transcends mere self-protection
10 and represents a challenge to the legitimacy or authority of
11 the ruling regime.”).
12 Jin’s opposition to the government’s rent increase
13 transcended “mere self-protection” because she organized
14 other shopkeepers and helped to lead a strike and protest
15 with 70 to 80 participants that closed the market for eight
16 hours. Additionally, Jin was arrested soon after the protest
17 and the policewoman who interrogated her asked how she dare
18 “go against the government,” a statement that implies a
19 perceived political component to Jin’s actions. Although Jin
20 organized only one protest against a specific government
21 policy, the 2009 State Department country report in the record 5 1 documents China’s harsh treatment of protesters (including
2 those who protest economic and social policies) and supports
3 Jin’s argument that her conduct would be viewed as a political
4 challenge to the local government’s authority.
5 Accordingly, we remand for further consideration of
6 asylum and withholding of removal. We express no opinion on
7 the issues of credibility and corroboration that the BIA
8 declined to reach.
9 II. CAT Relief
10 To be eligible for CAT relief, an applicant must show
11 “that it is more likely than not” that she will be tortured
12 in her country of removal. 8 C.F.R. § 1208.16(c)(2).
13 Torture is defined as “any act by which severe pain or
14 suffering, whether physical or mental, is intentionally
15 inflicted on a person . . . by or at the instigation of or
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17-687 Jin v. Barr BIA Vomacka, IJ A087 980 955 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 23rd day of May, two thousand nineteen. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 BARRINGTON D. PARKER, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 CHUNHUA JIN, 14 Petitioner, 15 16 v. 17-687 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Mike P. Gao, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Terri J. 27 Scadron, Assistant Director; 28 Anthony W. Norwood, Senior 29 Litigation Counsel, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 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
8 is GRANTED in part and DENIED in part.
9 Petitioner Chunhua Jin, a native and citizen of the
10 People’s Republic of China, seeks review of a February 10,
11 2017, decision of the BIA affirming a November 2, 2015,
12 decision of an Immigration Judge (“IJ”) denying her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Chunhua
15 Jin, No. A 087 980 955 (B.I.A. Feb. 10, 2017), aff’g No. A 087
16 980 955 (Immig. Ct. N.Y. City Nov. 2, 2015). We assume the
17 parties’ familiarity with the underlying facts and procedural
18 history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decisions as modified by the BIA, i.e., without
21 reaching the IJ’s adverse credibility or corroboration
22 rulings. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
23 F.3d 520, 522 (2d Cir. 2005). Because the BIA declined to 2 1 reach the IJ’s adverse credibility finding, we assume that
2 Jin testified credibly. Mei Fun Wong v. Holder, 633 F.3d 64,
3 68 (2d Cir. 2011).
4 I. Asylum & Withholding of Removal
5 To obtain asylum or withholding of removal, Jin was
6 required to “establish that race, religion, nationality,
7 membership in a particular social group, or political opinion
8 was or will be at least one central reason for” the claimed
9 persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A);
10 Matter of C-T-L-, 25 I. & N. Dec. 341, 348 (B.I.A. 2010)
11 (extending the “one central reason” standard to withholding
12 of removal). Jin argues that she was arrested based on her
13 actual or imputed political opinion because of her role in
14 organizing a shopkeepers’ protest against the municipal
15 government’s rent increase. We agree that the agency should
16 more fully consider the circumstances because, contrary to
17 the agency’s analysis, Jin was protesting a municipal
18 government policy, not the corruption of a government
19 official.
3 1 We have cautioned against adopting an “impoverished view
2 of what political opinions are, especially in a country
3 . . . where certain democratic rights have only a tenuous
4 hold.” Osorio v. INS, 18 F.3d 1017, 1030 (2d Cir. 1994). In
5 Osorio, we concluded that a Guatemalan union leader, made out
6 a political opinion claim: his union leadership and
7 participation in strikes and protests “clearly evince[d] the
8 political opinion that strikes by municipal workers should be
9 legal and that workers should be given more rights,” and the
10 Guatemalan government viewed the union’s activities as a
11 political threat to the government’s policies. Id. at 1029-
12 31.
13 Jin’s situation is distinguishable from the anti-
14 corruption cases that the agency relied on because she opposed
15 a government policy rather than individual officials’ corrupt
16 conduct. The municipal government’s rent increase for
17 shopkeepers in the Hunchun Light Industry Market cannot be
18 said to be an “isolated, aberrational act[] of greed or
19 malfeasance” in the same way that an official’s unauthorized
20 acts of extortion or embezzlement could be; the rent increase
4 1 was the city’s official policy. Yueqing Zhang v. Gonzales,
2 426 F.3d 540, 547-48 (2d Cir. 2005).
3 Further, even assuming that the anti-corruption case law
4 applies, the fact that Jin opposed the rent increase out of
5 economic self-interest does not necessarily foreclose her
6 political opinion claim. See id. (holding that “opposition
7 to endemic corruption or extortion, no less than opposition
8 to other government policies or practices, may have a
9 political dimension when it transcends mere self-protection
10 and represents a challenge to the legitimacy or authority of
11 the ruling regime.”).
12 Jin’s opposition to the government’s rent increase
13 transcended “mere self-protection” because she organized
14 other shopkeepers and helped to lead a strike and protest
15 with 70 to 80 participants that closed the market for eight
16 hours. Additionally, Jin was arrested soon after the protest
17 and the policewoman who interrogated her asked how she dare
18 “go against the government,” a statement that implies a
19 perceived political component to Jin’s actions. Although Jin
20 organized only one protest against a specific government
21 policy, the 2009 State Department country report in the record 5 1 documents China’s harsh treatment of protesters (including
2 those who protest economic and social policies) and supports
3 Jin’s argument that her conduct would be viewed as a political
4 challenge to the local government’s authority.
5 Accordingly, we remand for further consideration of
6 asylum and withholding of removal. We express no opinion on
7 the issues of credibility and corroboration that the BIA
8 declined to reach.
9 II. CAT Relief
10 To be eligible for CAT relief, an applicant must show
11 “that it is more likely than not” that she will be tortured
12 in her country of removal. 8 C.F.R. § 1208.16(c)(2).
13 Torture is defined as “any act by which severe pain or
14 suffering, whether physical or mental, is intentionally
15 inflicted on a person . . . by or at the instigation of or
16 with the consent or acquiescence of a public official or other
17 person acting in an official capacity.” 8 C.F.R.
18 § 1208.18(a)(1). The agency must consider “all evidence
19 relevant to the possibility of future torture,” including:
20 “[e]vidence of past torture,” evidence regarding the
21 possibility of internal relocation, “[e]vidence of gross, 6 1 flagrant, or mass violations of human rights,” and “[o]ther
2 relevant information regarding conditions in the country of
3 removal.” 8 C.F.R. § 1208.16(c)(3)(i)-(iv). However,
4 evidence of past torture does not create a presumption that
5 an applicant will be tortured in the future. Ramsameachire
6 v. Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004).
7 Substantial evidence supports the agency’s determination
8 that Jin did not establish a likelihood of torture. Although
9 Jin submitted a 2010 letter from her mother stating that the
10 police were looking for her, she has not provided an updated
11 letter or any other evidence to show that the police are still
12 looking for her. The agency also reasonably concluded that
13 Jin’s ability to renew her passport and depart from China on
14 her passport undermined her CAT claim, given an Australian
15 government report reflecting that Chinese exit procedures
16 generally prevent citizens with criminal convictions or
17 ongoing criminal proceedings from obtaining passports or
18 leaving the country.
19 For the foregoing reasons, the petition for review is
20 GRANTED in part and REMANDED to the BIA as to asylum and
7 1 withholding of removal and DENIED in remaining part as to CAT
2 relief.
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court