USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 1 of 16
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-1371
ZUOWEI CHEN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: January 26, 2023 Decided: July 6, 2023
Before GREGORY, Chief Judge, and HARRIS and QUATTLEBAUM, Circuit Judges.
Petition for review granted; vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Chief Judge Gregory and Judge Quattlebaum joined.
ARGUED: Tamara L. Jezic, JEZIC & MOYSE, LLC, Wheaton, Maryland, for Petitioner. Brett Fredrick Kinney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian Boynton, Acting Assistant Attorney General, Kohsei Ugumori, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 2 of 16
PAMELA HARRIS, Circuit Judge:
Petitioner Zuowei Chen is a native of China admitted to the United States on a
student visa in 2009. Chen now seeks review of a Board of Immigration Appeals order
denying his applications for asylum, withholding of removal, and protection under the
Convention Against Torture. If removed to China, Chen fears, he will be persecuted and
tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him
because of his Christian beliefs and practices.
We find there are aspects of the agency’s decision that require clarification before
we can meaningfully review Chen’s claims. Accordingly, we vacate the decision of the
Board of Immigration Appeals and remand for further explanation, consistent with this
opinion.
I.
A.
In 2009, Zuowei Chen came to the United States from China, admitted on a student
visa. Though his visa required him to attend school, Chen never did so. Nor did he apply
for asylum within the standard one-year period. See 8 U.S.C. § 1158(a)(2)(B) (requiring
applicant to file for asylum within one year of arrival in the United States, subject to certain
exceptions).
In 2014, however, Chen did seek asylum. Later that year, the Department of
Homeland Security charged Chen with removability, citing his failure to attend school as
required by his student visa. Chen, through counsel, conceded removability. But he
2 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 3 of 16
continued to pursue asylum, and also sought relief in the form of withholding of removal
and protection under the Convention Against Torture (“CAT”).
In a written statement accompanying his asylum application, Chen claimed that
before he left China in 2009, he was persecuted by the Chinese government for his
Christian beliefs and practices. According to Chen, he was introduced to Christianity in
2007, by co-worker and friend Huibin Sun He, and began attending services at Huibin
Sun’s house church. On July 27, 2008, Chinese police officers interrupted a “gospel
meeting” at the house church, arrested Chen and his fellow congregants, and interrogated
the churchgoers about their Christian faith. A.R. 240. Chen was ordered to “confess [his]
crimes” and “identify other leading [church] members,” and when he did not, the “police
beat [him] violently” and threatened to break his legs. A.R. 240–41. Chen was imprisoned
for three days, during which the police encouraged other prisoners to abuse him. He was
released only after his parents paid a fine and he signed a “confession” promising never to
“engage in illegal activities again,” which Chen took to mean he could no longer practice
his Christian faith. A.R. 241.
Even after his release, Chen was required to report regularly to the Chinese police.
During those meetings, the police “abused [him] mentally” and threatened him with
additional jail time if he did not identify other members of his church. A.R. 241. In 2009,
with the help of friends, Chen left China and came to the United States. At the close of his
written statement, Chen explained that while he had hoped he could someday return to
China, he had recently learned that the Chinese police “never stopped tracing [him],” and
3 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 4 of 16
that they had accused him of violating his release agreement and committing new crimes
necessitating more severe punishment. A.R. 241.
Along with his written statement, Chen submitted to the Immigration Judge (“IJ”) a
two-paragraph affidavit from his mother. In her affidavit, Chen’s mother corroborated the
broad outlines of Chen’s account of his arrest in July 2008, stated that the police continued
to search for Chen after his departure in 2009, and expressed her belief that Chen could not
safely return. Chen also submitted a letter of support from his local Christian church in
Rockville, Maryland, and two recent State Department country-condition reports on
religious freedom and general conditions in China.
B.
After a hearing, the IJ issued an oral decision denying all forms of relief from
removal. First, the IJ ruled that Chen’s asylum application – filed in 2014, roughly five
years after he arrived in the United States – was time-barred under 8 U.S.C.
§ 1158(a)(2)(B), which ordinarily requires applicants to file within a year of entry. Chen
relied on an exception for cases in which an applicant can show “changed circumstances
which materially affect [his] eligibility for asylum,” § 1158(a)(2)(D), and testified,
consistent with his written statement, that he had learned only recently from his parents
that Chinese police were still searching for him as late as December 2018. But the
authorities’ continued interest in finding Chen, the IJ reasoned, was not a “changed
circumstance” that would justify a late filing. See A.R. 44 (Chen’s “statement as to why
he left China was consistent with the statement as to why he’s concerned [now] about the
4 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 5 of 16
police looking for him and therefore the Court finds that [Chen] has not met his burden of
showing changed circumstances”).
The IJ next rejected Chen’s claim to withholding of removal, finding that Chen had
established neither past persecution nor a likelihood of future persecution if returned to
China. With respect to past persecution, the IJ focused on Chen’s failure to corroborate,
through hospital records or a more detailed affidavit from his mother, the nature of the
injuries he allegedly suffered when beaten in prison. With respect to the prospect of future
persecution, the IJ again relied on a failure “to provide corroborating evidence where
corroborating evidence could have been provided,” A.R. 45 – including the absence of
affidavits from fellow congregants in China attesting to Chen’s church-going and arrest,
A.R. 45 (“It would seem to the Court that had [Chen], in fact, been involved in church
activities and . . . [been] arrested with members of his church that the minister at least
would have provided him with an affidavit that he had been attending church and he had
been arrested.”).
Finally, the IJ denied Chen relief under the CAT. For a “similar reason” to that
already given, the IJ found, Chen had failed to show it was more likely than not that he
would be subjected to torture in his home country. Moreover, he continued, the three days
of imprisonment and beating alleged by Chen did not “rise to the level of severe
punishment” constituting torture under the CAT. A.R. 45–46.
In a single-member opinion, the Board of Immigration Appeals (“BIA” or “Board”)
dismissed Chen’s appeal and affirmed the IJ’s decision. The BIA agreed with the IJ that
no “changed circumstance” could excuse Chen’s untimely asylum application: “[Chen]
5 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 6 of 16
testified that the police have been looking for him since he left, and had never stopped.
Thus, there is no change in circumstances.” A.R. 3–4. The Board also agreed that Chen
had not established eligibility for withholding or CAT protection because he had not
adequately corroborated his claim. In addition to the missing hospital records, the BIA
noted the lack of detail in Chen’s mother’s affidavit and the IJ’s finding that there was no
other “corroborating evidence concerning [Chen’s] arrest, detention, or activities as a
Christian in China.” A.R. 4. All told, the BIA held, the IJ had permissibly concluded that
Chen’s testimony and the “minimal” corroborating evidence presented were insufficient to
meet the standard of proof for withholding of removal or CAT protection. A.R. 4.
Chen timely petitioned this court for review.
II.
The standard under which we review Chen’s claim is well established. Where, as
here, the BIA adopts the IJ’s opinion and supplements it with its own reasoning, we
consider both rulings on appeal. Cedillos-Cedillos v. Barr, 962 F.3d 817, 823 (4th Cir.
2020) (internal quotation marks omitted). We review the agency’s factual findings for
substantial evidence and will reverse them only if “any reasonable adjudicator would be
compelled to conclude to the contrary.” Cabrera Vasquez v. Barr, 919 F.3d 218, 222 (4th
Cir. 2019) (internal quotation marks omitted); see also 8 U.S.C. § 1252(b)(4)(B). Legal
determinations are reviewed de novo. Portillo Flores v. Garland, 3 F.4th 615, 625 (4th
Cir. 2021).
6 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 7 of 16
Sometimes, however, the agency’s failure to fully explain itself prevents us from
engaging in meaningful review under that standard. See Zelaya v. Holder, 668 F.3d 159,
168 (4th Cir. 2012). When that happens, the proper course is generally to remand to the
agency for additional explanation. See id. We conclude that this is just such a case, and
accordingly, we grant the petition for review, vacate the BIA’s order, and remand for
clarification, as outlined below.
We first require clarification as to the basis for the agency’s determination that Chen
cannot show “changed circumstances” that would reset the clock for seeking asylum under
8 U.S.C. § 1158(a)(2)(D). See Zambrano v. Sessions, 878 F.3d 84, 86 (4th Cir. 2017)
(explaining time limit for asylum applications and “changed circumstances” exception).
According to the government, the IJ and BIA did no more than make and affirm a
discretionary factual finding that Chen failed to demonstrate changed circumstances – a
finding we would lack jurisdiction to review. See id. at 87. Chen, on the other hand, insists
that the agency applied an incorrect legal standard in reviewing his claim, so that his case
raises a “question of law” over which we retain jurisdiction. See id.; 8 U.S.C.
§ 1252(a)(2)(D). Because both are colorable readings and nothing on the face of the
opinions settles the matter, we remand for further explanation.
The question here arises from our 2017 decision in Zambrano, construing the term
“changed circumstances” as used in § 1158(a)(2)(D). 878 F.3d at 86–89. The agency had
adopted an interpretation that categorically excluded from “changed circumstances” any
new episodes of the same kind of persecution suffered in the past. Id. at 86. Zambrano,
7 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 8 of 16
for instance, had fled Honduras to escape gang members trying to find and retaliate against
him, and then argued for “changed circumstances” based on a more recent and intensified
gang search. Id. at 85–86. The agency denied his claim on the ground that “[a]dditional
proof of pre-existing persecution” can never be a “changed circumstance” materially
affecting eligibility for asylum. Id. at 86. But we disagreed and held that “an
intensification of a preexisting threat of persecution or new instances of persecution of the
same kind suffered in the past” may indeed amount to “changed circumstances” under
§ 1158(a)(2)(D). Id. at 88.
It is not clear to us whether the agency here applied our then-recent decision in
Zambrano. Neither the IJ nor the BIA dealt with the issue in more than a sentence or two,
and neither cited Zambrano or any other legal authority. But it is certainly possible to read
the BIA’s controlling opinion as Chen does: as reasoning, in its entirety, that because the
police already were searching for Chen when he left China, a continuation of such searches
could never qualify as a “change” in circumstances. See A.R. 3–4 (“[Chen] testified that
the police have been looking for him since he left, and had never stopped. Thus, there is
no change in circumstances.” (emphasis added)). And on that reading, there would be a
serious question – unaddressed by the agency – as to whether the Board’s decision could
be reconciled with Zambrano.
The government does not dispute that under Zambrano, Chen’s recent discovery
that Chinese police continued to search for him – and, indeed, seemed to believe he had
committed new crimes deserving of heightened punishment – could constitute “changed
circumstances” allowing for a late-filed asylum application. Instead, it argues that the
8 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 9 of 16
agency applied this rule sub silentio, and then made a discretionary and unreviewable
finding that Chen had failed to prove such a change in circumstances. Perhaps so. But
because we lack more specific reasoning making clear the basis for the agency’s
determination, the proper course is to remand for clarification and for the agency to apply
Zambrano in the first instance. See Zambrano, 878 F.3d at 88 (remanding for agency to
decide, in its discretion, whether the facts in the record showed changed circumstances).
We turn next to Chen’s claims for withholding of removal and protection under the
CAT. The agency denied both on the ground that Chen failed to adequately corroborate
his claim of religious persecution, past or future. 1 Here, too, we find that clarification on
certain points is necessary before we may meaningfully review the agency’s determination.
1.
As described above, in finding that Chen had not met his burden of showing past
persecution or the requisite likelihood of future persecution or torture, the IJ relied
significantly on Chen’s failure to provide various forms of potential corroborating
evidence. In Wambura v. Barr, 980 F.3d 365, 375 (4th Cir. 2020), we held that before
requiring an applicant to “provide evidence which corroborates otherwise credible
1 In denying Chen relief under the CAT, the IJ also opined that Chen’s detention and beating did not rise to the level of “severe punishment amounting to torture.” A.R. 45–46. The Board, however, did not adopt or affirm this holding in its final order, finding only that Chen failed to adequately corroborate his claim. Accordingly, the IJ’s alternative holding is not before us for review. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014) (citing SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)).
9 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 10 of 16
testimony” under 8 U.S.C. § 1229a(c)(4)(B), an IJ must make a “threshold determination”
that there is testimony that is “otherwise credible” but still in need of corroboration. The
parties agree that there was no express finding to that effect here, and Chen argues that a
remand is therefore required.
It is not clear to us, however, whether the IJ in fact triggered the Wambura rule by
requiring Chen to provide corroborating evidence for otherwise credible testimony. In
addition to authorizing an IJ to require such corroboration by reasonably obtainable
evidence, § 1229a(c)(4)(B) instructs IJs to consider both an applicant’s testimony and
“other evidence of record,” including “documentation in support of the [] application,” in
determining whether an applicant has met his burden of proof. So here, the IJ may have
simply found that Chen’s testimony and documentation, taken together, did not meet his
burden of proof. See Matter of L-A-C-, 26 I. & N. Dec. 516, 519 (B.I.A. 2015)
(“[R]egardless of whether an applicant is deemed credible, he has the burden to corroborate
the material elements of the claim where the evidence is reasonably obtainable . . . .”).
Indeed, the BIA suggested as much in reviewing the IJ’s decision. See A.R. 4 (“The
Immigration Judge permissibly concluded that [Chen’s] testimony, alone, or coupled with
the minimal evidence presented, was insufficient to meet the standard of proof for
withholding of removal or protection under the CAT.”).
But, importantly, neither party before us reads the agency’s opinions that way.
Instead, the government, like Chen, insists that the IJ did in fact seek additional
corroborating evidence for “otherwise credible testimony” as contemplated by Wambura.
And there is some support for this reading, too, in the Board’s opinion, which cites
10 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 11 of 16
Wambura and notes that “[e]ven for credible testimony, corroboration may be required.”
A.R. 4. On that understanding, the government argues, the IJ was required to make a
“threshold determination” under Wambura – and did so by way of an implicit finding,
never made express but still readily discernible, that Chen’s testimony was “otherwise
credible” yet in need of additional corroboration. 2
The agency’s opinions and parties’ briefing leaves us uncertain as to exactly what
we are reviewing here – whether the IJ in fact required Chen to “provide evidence which
corroborates otherwise credible testimony” under § 1229a(c)(4)(B), and, if so, whether
there is before us a “threshold determination” as to Chen’s credibility and the need for
additional corroboration. Given this uncertainty, which significantly impedes our review
of Chen’s claim, the proper course is to remand to the agency for clarification.
2.
Remand also will give the agency a chance to address our second concern related to
its finding of inadequate corroboration. Whatever the precise nature of the IJ’s assessment
of Chen’s corroborating evidence, as explored above, one thing is clear: The absence of
corroborating evidence could not be held against Chen unless such evidence was
2 The government also argues that Chen failed to exhaust this issue before the BIA, depriving us of jurisdiction to address it now. See 8 U.S.C. § 1252(d)(1); Atemnkeng v. Barr, 948 F.3d 231, 240 (4th Cir. 2020). But Chen did argue before the Board that the IJ failed to comply with the corroboration requirements of § 1229a(c)(4)(B) – though he instead cited the parallel provision regarding asylum – and deprived him of notice that additional evidence was needed to corroborate his testimony. That was enough to put this matter before the Board. See Atemnkeng, 948 F.3d at 240 (explaining that exhaustion requirement does not bar a petitioner from making more specific points related to a general issue presented to the BIA).
11 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 12 of 16
“reasonably obtainable” by him. See Matter of L-A-C-, 26 I. & N. Dec. at 519
(“[R]egardless of whether an applicant is deemed credible, he has the burden to corroborate
the material elements of the claim where the evidence is reasonably obtainable . . . .”
(emphasis added)); Wambura, 980 F.3d at 375 (IJ may not require corroborating evidence
for “otherwise credible testimony” without finding that such evidence is “reasonably
available”); 8 U.S.C. § 1229a(c)(4)(B) (“Where the immigration judge determines that the
applicant should provide evidence which corroborates otherwise credible testimony, such
evidence must be provided unless the applicant demonstrates that the applicant does not
have the evidence and cannot reasonably obtain the evidence.”). An applicant is entitled
to an opportunity to explain why he cannot reasonably obtain any evidence sought by the
IJ, and the IJ is required to include that explanation in the record, along with a finding as
to whether the explanation is sufficient. Matter of L-A-C-, 26 I. & N. Dec. at 519, 521;
Wambura, 980 F.3d at 372.
In denying relief on Chen’s withholding claim, both the IJ and the BIA relied at
least in part on Chen’s failure to provide affidavits from his minister or fellow church
members from China, attesting to his “activities as a Christian” and his arrest during home-
church services. A.R. 45 (IJ) (“It would seem to the Court that had [Chen], in fact, been
involved in church activities and . . . [been] arrested with members of his church that the
minister at least would have provided him with an affidavit that he had been attending
church and he had been arrested.”); A.R. 4 (BIA) (“The Immigration Judge also noted the
respondent failed to provide any additional corroborating evidence concerning his arrest,
detention, or activities as a Christian in China.”). But Chen repeatedly explained during
12 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 13 of 16
his hearing why such evidence was not available: his minister and co-religionists feared
reprisal from Chinese authorities if they came forward on his behalf. And neither the IJ
nor the BIA made any finding as to the sufficiency of that explanation or the reasonable
availability of the affidavits hypothesized by the IJ, or even noted Chen’s explanation in
their opinions.
We leave it to the agency on remand to evaluate Chen’s explanation and determine
whether evidence from his co-religionists in China was “reasonably obtainable.” See
Matter of L-A-C-, 26 I. & N. Dec. at 519.
3.
We have one last concern about the Board’s determination that Chen did not
adequately corroborate his claim of past or future religious persecution. In making that
finding, neither the IJ nor the BIA assessed or even referred to the two country-condition
reports submitted by Chen, which document widespread and alarming state-sanctioned
persecution of Christians throughout China – surveillance, harassment, detention, and
violent abuse that can culminate in death. See A.R. 112–31 (2017 State Department
International Religious Freedom Report for China); A.R. 132–75 (2017 State Department
Country Condition Report for China). The failure of the agency to engage with this highly
material evidence significantly undermines our ability to review its conclusion. See
Rodriguez-Arias v. Whitaker, 915 F.3d 968, 974 (4th Cir. 2019). Accordingly, we remand
so that the agency may offer an explanation that takes account of this evidence. See id. at
974–75; Ai Hua Chen v. Holder, 742 F.3d 171, 179–81 (4th Cir. 2014).
13 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 14 of 16
There is, of course, no categorical requirement that the agency “discuss every piece
of evidence in the record.” Ai Hua Chen, 742 F.3d at 179. But at the same time, the agency
must announce its decision “in terms sufficient to enable a reviewing court to perceive that
they have heard and thought” about that evidence. Id. A “wholesale failure” to consider
country-conditions reports is reversible error, and the failure to address and engage with
those reports “hampers our ability to meaningfully review what was decided below.”
Rodriguez-Arias, 915 F.3d at 974.
The failure to acknowledge Chen’s country-conditions evidence was particularly
problematic in this case. The agency premised its denial of relief on a finding that Chen
had not met his burden to corroborate his claim, but never accounted for a form of
corroborative evidence that could be decisive in establishing the necessary likelihood of
future persecution or torture. See id. at 975 (“Country conditions alone can play a decisive
role in granting relief under the CAT.” (cleaned up)); see also Quitanilla v. Holder, 758
F.3d 570, 574 n.6 (4th Cir. 2014) (recognizing that “State Department report[s] on country
conditions [are] highly probative evidence” considering the “expertise of the Department
of State”). 3 As the BIA itself has warned, “in deciding whether an applicant has met his
3 Several other federal courts of appeals have had occasion to consider the “decisive role,” Rodriguez-Arias, 915 F.3d at 975, that may be played in immigration proceedings by country-condition reports detailing persecution of Christians in China, see, e.g., Guan v. Barr, 925 F.3d 1022, 1034–36 (9th Cir. 2019) (remanding to agency for consideration of petitioner’s CAT claim in light of country reports indicating Christians in China are often subject to torture); Ni v. Wilkinson, 849 F. App’x 722, 725–26 (10th Cir. 2021) (remanding to agency after considering petitioner’s country conditions reports showing that in 2018 “the government not only had closed churches but also had increased restrictions, like banning online sales of the Bible and depiction of Christian symbols” and reporting that
14 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 15 of 16
burden of proof, an [IJ] must not place undue weight on the absence of a particular piece
of corroborating evidence while overlooking other evidence in the record that corroborates
the claim.” Matter of L-A-C-, 26 I. & N. Dec. at 522. But on this record, we cannot ensure,
as we must, that the agency did not do just that, faulting Chen for failing to provide certain
forms of corroborating evidence without considering the evidence he did provide, in the
form of country-condition reports. Indeed, those reports have double relevance to this case:
They go both to the likelihood of future persecution and torture – fundamental to meeting
Chen’s burden on his withholding and CAT claims – and to whether it would be reasonable
to expect his minister or fellow church members to come forward with affidavits detailing
their own religious activities – a precondition, as explained above, to relying on the absence
of such affidavits in denying relief.
We of course take no position on the ultimate disposition of Chen’s claims. But the
failure to account for and engage with relevant country-conditions reports, though not
“unprecedented,” see Ai Hua Chen, 742 F.3d at 180, here frustrates our ability to engage
in meaningful appellate review of the agency’s final determination as to withholding of
removal and CAT protection. Accordingly, for this reason, too, we remand for additional
explanation by the agency.
Christian “persecution was growing in both scope and scale in China” (cleaned up)); Guangjun Deng v. Holder, 410 F. App’x 15, 17 (9th Cir. 2010) (“The IJ also based his adverse credibility finding on indications in the State Department Reports that Protestants worship freely in China, contrary to [petitioner’s] claim of religious persecution. However, the IJ ignored numerous contrary statements in the Reports that freedom of religion ‘remained poor’ in China and that ‘house churches’ such as the one [petitioner] attended had been targeted for persecution by government authorities.”).
15 USCA4 Appeal: 21-1371 Doc: 52 Filed: 07/06/2023 Pg: 16 of 16
III.
For the reasons given above, the petition for review is granted, the BIA’s decision
is vacated, and the case is remanded for further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED