16-2695 Yang v. Sessions BIA Loprest, IJ A205 511 039 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 26th day of March, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 NENG-MENG YANG, 14 Petitioner, 15 16 v. 16-2695 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Lee Ratner, Law Office of Michael 24 Brown, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Greg D. Mack, 28 Leslie McKay, Senior Litigation 29 Counsel, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED IN PART and DENIED IN PART.
5 Petitioner Neng-Meng Yang, a native and citizen of the
6 People’s Republic of China, seeks review of a July 13, 2016,
7 decision of the BIA affirming a June 16, 2015, decision of an
8 Immigration Judge (“IJ”) denying Yang’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Neng-Meng Yang,
11 No. A205 511 039 (B.I.A. July 13, 2016), aff’g No. A205 511
12 039 (Immig. Ct. N.Y. City June 16, 2015). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 We have reviewed the IJ’s decision as modified by the
16 BIA, i.e., minus the adverse credibility determination on
17 which the BIA declined to rely. See Xue Hong Yang v. U.S.
18 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
19 Accordingly, we have assumed Yang’s credibility as to past
20 events and his subjective fear of harm. Yan Chen v. Gonzales,
21 417 F.3d 268, 271-72 (2d Cir. 2005).
22 Family Planning Claim
23 We remand to the BIA as to Yang’s claim based on his 2 1 resistance to China’s coercive family planning policy. We
2 have reviewed the agency’s factual findings for substantial
3 evidence, and “[q]uestions of law, as well as the
4 application of legal principles to undisputed facts . . .
5 de novo.” Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
6 2014). An applicant seeking asylum and withholding of
7 removal must establish that his past persecution or fear of
8 future persecution is “on account of race, religion,
9 nationality, membership in a particular social group, or
10 political opinion,” 8 U.S.C. § 1101(a)(42) (emphasis
11 added),i.e., that the protected ground is “one central
12 reason” for the persecution. Id. § 1158(b)(1)(B)(i);
13 Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010)
14 (explaining that the burden is on the alien “to establish a
15 sufficiently strong nexus to . . . [a] protected
16 ground[]”).
17 The IJ reasonably determined that Yang was arrested and
18 detained for disorderly conduct rather than resistance to
19 China’s family planning policy. Yang testified that he was
20 arrested after complaining about not being allowed to have
21 a second child and kicking over a chair in the family
22 planning office. The IJ found that the chair-kicking,
23 rather than Yang’s complaining, was the cause of the 3 1 arrest. Given Yang’s testimony that he was not arrested
2 until he kicked over the chair, that determination was
3 supported by substantial evidence. Siewe v. Gonzales, 480
4 F.3d 160, 169 (2d Cir. 2007) (deferring to agency inference
5 “[s]o long as an inferential leap is tethered to the
6 evidentiary record”); see also Jian Hui Shao v. Mukasey,
7 546 F.3d 138, 157 (2d Cir. 2008) (according substantial
8 deference to the agency’s findings of fact and “assessment
9 of competing evidence”).
10 However, the agency overlooked significant evidence in
11 determining that Yang failed to demonstrate a nexus between
12 his opposition to the family planning policy and the
13 altercation with family planning officials when they came to
14 Yang’s house to take his wife for her family planning checkup.
15 The agency focused only on Yang’s concern over his wife’s
16 health and ignored his assertion that he also resisted the
17 officials while expressing his disagreement with the family
18 planning policy.
19 The BIA’s rejection of the adverse credibility
20 determination undermines the IJ’s finding on that point
21 because we must credit Yang’s statements about past events.
22 See Yan Chen, 417 F.3d at 271 (holding that we may not rely
23 on an adverse credibility determination where the BIA 4 1 explicitly assumed credibility). Assuming Yang’s
2 credibility, it appears that the agency failed to take into
3 account evidence that Yang angered the family planning
4 officials not just by arguing that his wife was not feeling
5 well, but also by insisting that he and his wife were
6 entitled to have a second child and that therefore his wife
7 would no longer attend pregnancy checkups. It was only
8 after he made these statements that he had a physical
9 altercation with the officials. Given this sequence of
10 events, the agency either overlooked Yang’s comments or
11 failed to explain its conclusion that Yang scuffled with
12 officials because of his wife’s health rather than his
13 opposition to the family planning policy. Xiao Ji Chen v.
14 U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006)
15 (holding that we cannot make a substantial evidence
16 determination where the agency decision omits facts that
17 are “fundamental to the claim”).
18 The agency further overlooked evidence that the family
19 planning officials considered Yang to be resisting the
20 family planning policy. The officials accused him of
21 openly violating the family planning policy and returned to
22 his home on more than one occasion seeking to arrest him
23 for the violation. See Chun Gao v.
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16-2695 Yang v. Sessions BIA Loprest, IJ A205 511 039 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 26th day of March, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 NENG-MENG YANG, 14 Petitioner, 15 16 v. 16-2695 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Lee Ratner, Law Office of Michael 24 Brown, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Greg D. Mack, 28 Leslie McKay, Senior Litigation 29 Counsel, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED IN PART and DENIED IN PART.
5 Petitioner Neng-Meng Yang, a native and citizen of the
6 People’s Republic of China, seeks review of a July 13, 2016,
7 decision of the BIA affirming a June 16, 2015, decision of an
8 Immigration Judge (“IJ”) denying Yang’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Neng-Meng Yang,
11 No. A205 511 039 (B.I.A. July 13, 2016), aff’g No. A205 511
12 039 (Immig. Ct. N.Y. City June 16, 2015). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 We have reviewed the IJ’s decision as modified by the
16 BIA, i.e., minus the adverse credibility determination on
17 which the BIA declined to rely. See Xue Hong Yang v. U.S.
18 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
19 Accordingly, we have assumed Yang’s credibility as to past
20 events and his subjective fear of harm. Yan Chen v. Gonzales,
21 417 F.3d 268, 271-72 (2d Cir. 2005).
22 Family Planning Claim
23 We remand to the BIA as to Yang’s claim based on his 2 1 resistance to China’s coercive family planning policy. We
2 have reviewed the agency’s factual findings for substantial
3 evidence, and “[q]uestions of law, as well as the
4 application of legal principles to undisputed facts . . .
5 de novo.” Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.
6 2014). An applicant seeking asylum and withholding of
7 removal must establish that his past persecution or fear of
8 future persecution is “on account of race, religion,
9 nationality, membership in a particular social group, or
10 political opinion,” 8 U.S.C. § 1101(a)(42) (emphasis
11 added),i.e., that the protected ground is “one central
12 reason” for the persecution. Id. § 1158(b)(1)(B)(i);
13 Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010)
14 (explaining that the burden is on the alien “to establish a
15 sufficiently strong nexus to . . . [a] protected
16 ground[]”).
17 The IJ reasonably determined that Yang was arrested and
18 detained for disorderly conduct rather than resistance to
19 China’s family planning policy. Yang testified that he was
20 arrested after complaining about not being allowed to have
21 a second child and kicking over a chair in the family
22 planning office. The IJ found that the chair-kicking,
23 rather than Yang’s complaining, was the cause of the 3 1 arrest. Given Yang’s testimony that he was not arrested
2 until he kicked over the chair, that determination was
3 supported by substantial evidence. Siewe v. Gonzales, 480
4 F.3d 160, 169 (2d Cir. 2007) (deferring to agency inference
5 “[s]o long as an inferential leap is tethered to the
6 evidentiary record”); see also Jian Hui Shao v. Mukasey,
7 546 F.3d 138, 157 (2d Cir. 2008) (according substantial
8 deference to the agency’s findings of fact and “assessment
9 of competing evidence”).
10 However, the agency overlooked significant evidence in
11 determining that Yang failed to demonstrate a nexus between
12 his opposition to the family planning policy and the
13 altercation with family planning officials when they came to
14 Yang’s house to take his wife for her family planning checkup.
15 The agency focused only on Yang’s concern over his wife’s
16 health and ignored his assertion that he also resisted the
17 officials while expressing his disagreement with the family
18 planning policy.
19 The BIA’s rejection of the adverse credibility
20 determination undermines the IJ’s finding on that point
21 because we must credit Yang’s statements about past events.
22 See Yan Chen, 417 F.3d at 271 (holding that we may not rely
23 on an adverse credibility determination where the BIA 4 1 explicitly assumed credibility). Assuming Yang’s
2 credibility, it appears that the agency failed to take into
3 account evidence that Yang angered the family planning
4 officials not just by arguing that his wife was not feeling
5 well, but also by insisting that he and his wife were
6 entitled to have a second child and that therefore his wife
7 would no longer attend pregnancy checkups. It was only
8 after he made these statements that he had a physical
9 altercation with the officials. Given this sequence of
10 events, the agency either overlooked Yang’s comments or
11 failed to explain its conclusion that Yang scuffled with
12 officials because of his wife’s health rather than his
13 opposition to the family planning policy. Xiao Ji Chen v.
14 U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006)
15 (holding that we cannot make a substantial evidence
16 determination where the agency decision omits facts that
17 are “fundamental to the claim”).
18 The agency further overlooked evidence that the family
19 planning officials considered Yang to be resisting the
20 family planning policy. The officials accused him of
21 openly violating the family planning policy and returned to
22 his home on more than one occasion seeking to arrest him
23 for the violation. See Chun Gao v. Gonzales, 424 F.3d 122, 5 1 129 (2d Cir. 2005) (“[A]n imputed political opinion,
2 whether correctly or incorrectly attributed, can constitute
3 a ground of political persecution.” (internal quotation
4 marks omitted)). Because we must assume credibility, as
5 the BIA did, we credit Yang’s assertions that these events
6 took place. Yan Chen, 417 F.3d at 271. A failure to
7 consider such evidence warrants remand. Id. at 272
8 (finding “significant error” where the agency “failed to
9 consider relevant evidence”).
10 In addition to overlooking evidence of nexus, the
11 agency overlooked potentially significant evidence relating
12 to Yang’s fear of future persecution on account of his
13 resistance to the family planning policy. Yang asserted
14 that family planning officials still frequently visit his
15 home in an effort to arrest him for violating the policy.
16 As noted above, the fact of those visits must be assumed
17 absent an adverse credibility determination. See id. at
18 271-72. In finding that Yang failed to meet his burden,
19 the agency credited Yang’s wife’s assertion that the family
20 planning officials sought to arrest Yang for smuggling,
21 which it determined was unrelated to the alleged violation
22 of the family planning policy. But Yang’s wife wrote that
23 family planning officials repeatedly came to her home to 6 1 punish Yang for violating the policy, and only sought to
2 arrest him for smuggling after she told them that he had
3 left for the United States. Remand to the agency is
4 therefore appropriate for further consideration of Yang’s
5 claims based on his resistance to the family planning
6 policy. Id. at 272, 275 (remanding where the agency
7 “failed to consider relevant evidence”); see also Uwais v.
8 U.S. Att’y Gen., 478 F.3d 513, 519 (2d Cir. 2007)
9 (remanding where we could not “predict with confidence
10 that, applying the correct legal standards and addressing
11 the complete factual record, the agency would again deny
12 [petitioner’s] claim.”).
13 Christianity Claim
14 The agency did not err in denying Yang’s claim for
15 relief based on religious persecution. Yang had to
16 demonstrate a well-founded fear of future persecution
17 because he did not allege past persecution on that basis.
18 8 C.F.R. § 1208.13(a), (b). A fear of future persecution
19 must be “objectively reasonable,” Ramsameachire v.
20 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004), and requires
21 “solid support in the record” to demonstrate that the fear
22 is more than “speculative,” Jian Xing Huang v. INS, 421
23 F.3d 125, 129 (2d Cir. 2005). An applicant can either 7 1 “provide evidence that there is a reasonable possibility
2 []he will be singled out for persecution” or show “that
3 there is a pattern or practice in his . . . country of
4 nationality . . . of persecution of a group of persons
5 similarly situated to the applicant.” Lianping Li v.
6 Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (quoting 8 C.F.R.
7 § 1208.13(b)(2)(iii)(A)).
8 The agency reasonably found that Yang failed to show
9 that he would be singled out for persecution. Yang
10 admitted that he never experienced any problems practicing
11 his religion while he was in China. The agency also
12 reasonably determined that there is no pattern or practice
13 of persecuting persons similarly situated to Yang. The
14 State Department report on Religious Freedom in China notes
15 that some local authorities let unregistered religious
16 groups practice their beliefs in peace. It also notes
17 that, since 2005, China’s State Administration for
18 Religious Affairs has permitted individuals to hold
19 religious gatherings without registering with the
20 government. Though the report also contains instances of
21 government officials harassing members of underground
22 churches, these instances do not vitiate the agency’s
23 conclusion that Yang failed to demonstrate that his fear of 8 1 future persecution is objectively reasonable. Siewe, 480
2 F.3d at 167-68 (holding that we defer to the IJ as the
3 finder of fact “[w]here there are two permissible views of
4 the evidence”).
5 For the foregoing reasons, the petition for review is
6 GRANTED IN PART and the case is REMANDED for further
7 consideration of Yang’s fear of persecution on account of
8 his resistance to China’s coercive family planning policy,
9 but DENIED IN REMAINING PART as to Yang’s claim of
10 religious persecution. As we have completed our review,
11 and the pending motion for a stay of removal in this
12 petition is DENIED as moot.
13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk