Youdon v. Board of Immigration Appeals

204 F. App'x 89
Court of Appeals for the Second Circuit·Decided November 6, 2006·No. No. 06-2525-ag·Published

Opinion

SUMMARY ORDER

Petitioner Tsering Youdon, a native of Tibet and a citizen of China, seeks review of a May 2, 2006 order of the BIA affirming the December 30, 2004 decision of Immigration Judge (“IJ”) Roxanne Hladylowycz denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Tsering Youdon, No. A97 162 993 (B.I.A. May 2, 2006), aff'g No. A97 162 993 (Immig. Ct. N.Y. City Dec. 30, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Where, as here, the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yu Yin Yang v. Gonzales, 431 F.3d 84, 85 (2d Cir.2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004). However, the Court will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158-60 (2d Cir.2006) (agreeing with this principle, but avoiding remand, in spite of deficiencies in an adverse credibility determination, because it could be confidently predicted that the IJ would adhere to the decision were the case remanded).

Youdon does not argue that she suffered past persecution in China; she argues only that the IJ erred in finding that she did not establish a well-founded fear of persecution. Accordingly, any challenge to the denial of her past persecution claim is waived. See, e.g., Jian Wen Wang v. BCIS, 437 F.3d 276, 278 (2d Cir. 2006). As a result, this Court will consider only Youdon’s well-founded fear of persecution claim.

To meet the burden for a well-founded fear of persecution, an applicant must demonstrate either a reasonable possibility of persecution against her as an individual or a pattern and practice of persecution against a group to which she belongs. 8 C.F.R. § 208.13(b)(2)(iii). Both the IJ and the BIA addressed whether the Chinese government would person[91]*91ally target Youdon upon her return to China, due to her pro-Tibet activities in Tibet, Nepal, and the United States, and they found that it would not. These particular findings are supported by substantial evidence.

However, Youdon correctly asserted in both her brief to the BIA and to this Court that she need not show she would be individually targeted for persecution if she can demonstrate that “there is a pattern and practice .... of persecution of a group of persons similarly situated to [her].” 8 C.F.R. § 208.13(b)(2)(iii)(A). In order to establish eligibility for asylum based on a pattern and practice of persecution, the applicant must prove that she is a member of a group of persons that is regularly persecuted and that her fear of persecution on account of her membership in that group is objectively reasonable. 8 C.F.R. § 208.13(b)(2)(iii). Therefore, the BIA’s and IJ’s findings that Youdon failed to prove that the Chinese government was particularly interested in her are not dis-positive. Neither the IJ nor the BIA considered whether Youdon’s activities in the past may subject her to persecution as a member of group that is persecuted by the Chinese government. On remand, the BIA should consider whether Youdon’s credible testimony was sufficient for You-don to prove that she is a member of a group, defined as individuals who protest for a free Tibet, that is subject to persecution by the Chinese government.1

There is documentation in the record evidencing the Chinese government’s willingness to suppress pro-Tibetan ideas, as well as suggesting close ties between China and Nepal, the country in which Youdon carried out much of her political activity. Additionally, the 2005 State Department Report on Human Rights Practices for China indicates that serious human rights problems continue to plague the country, and that the situation is particularly difficult for Tibetans. See Country Report on Human Rights Practices, 2005, China (includes Tibet, Hong Kong, and Macau), U.S. Dep’t of State, Bureau of Democracy, Human Rights, and Labor (March 2006), available at http://www.state.gov /g/drl/rls/hrrpt/ 2005/61605.htm. This Court may take judicial notice of adjudicative facts, such as current events, that materially bear on an applicant’s claim for relief from removal. See Fed. Rule Ev. 201(b),(c); Latifi v. Gonzales, 430 F.3d 103, 106 n. 1 (2d Cir.2005) (taking “judicial notice of the fact that the Democratic Party returned to power in Albania through general elections in July” 2005, and suggesting that, “[o]n remand, the BIA may wish to consider this event” with regard to changed circumstances in Albania); Yang v. McElroy, 277 F.3d 158, 163 (2d Cir.2002) (remanding to the BIA for consideration of recent country conditions that “bear vitally” on the applicant’s claim and that close the time-gap between the adjudication of his petition and the present); 8 C.F.R. § 1208.13(b)(1)(i)(A). Because there is evidence supporting Youdon’s assertions that the Chinese government persecutes pro-Tibet supporters, the BIA must consider, among other things, whether there is a pattern and practice of persecution against similarly situated individuals.

Because Youdoris withholding of removal claim is based on the same facts [92]*92as her asylum claim, and because the BIA should reevaluate the likelihood of future persecution under a pattern and practice scheme, we are also remanding Youdon’s withholding of removal claim for further consideration. See 8 C.F.R. § 208

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Youdon v. Board of Immigration Appeals, 204 F. App'x 89 (2d Cir. 2006).

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