Li v. Holder (2nd cir. 7 3-12) asylum nexus remand


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Does humanitarian aid to illegal N.Koreans in China = a political opinion?

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Li v. Holder (2nd cir. 7 3-12) asylum nexus remand

  1. 1. 10-2533-ag Li v. Holder BIA Hom, IJ A088 524 507 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 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 3rd day of July, two thousand twelve. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSÉ A. CABRANES 9 CHESTER J. STRAUB,10 Circuit Judges.11 ______________________________________1213 HONG YAN LI,14 Petitioner,1516 10-2533-ag17 v. NAC181920 ERIC H. HOLDER, JR., UNITED STATES21 ATTORNEY GENERAL,22 Respondent.23 ______________________________________2425 FOR PETITIONER: Matthew J. Harris, Long Island City,26 NY.2728 FOR RESPONDENT: Tony West, Assistant Attorney29 General; Jamie M. Dowd, Senior
  2. 2. 1 Litigation Counsel; Bernard A. 2 Joseph, Trial Attorney, Office of 3 Immigration Litigation, Civil 4 Division, United States Department 5 of Justice, Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review10 is GRANTED.11 Petitioner, Hong Yan Li, a native and citizen of China,12 seeks review of a May 28, 2010, decision of the BIA13 affirming the April 8, 2008, decision of Immigration Judge14 (“IJ”) Sandy Hom denying her application for asylum,15 withholding of removal, and relief under the Convention16 Against Torture (“CAT”). In re Hong Yan Li, No. A088 524 50717 (B.I.A. May 28, 2010), aff’g No. A088 524 507 (Immig. Ct.18 N.Y. City April 8, 2008). We assume the parties’19 familiarity with the underlying facts and procedural history20 of the case.21 Under the circumstances of this case, we have reviewed22 the IJ’s decision minus the arguments for denying relief23 that were rejected by the BIA. See Xue Hong Yang v. U.S.24 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The25 applicable standards of review are well-established. See 2
  3. 3. 1 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 2 510, 513 (2d Cir. 2009). Because Li does not challenge the 3 agency’s pretermission of asylum or denial of CAT relief, we 4 have only considered the agency’s denial of her application 5 for withholding of removal. 6 I. Nexus 7 The agency erred by failing to properly consider 8 whether the harm Li suffered after providing assistance to 9 North Korean refugees was on account of her political10 opinion or imputed political opinion. In Jin Jin Long v.11 Holder, 620 F.3d 162 (2d Cir. 2010), we remanded a petition12 (Dkt. No. 09-3472-ag) to the BIA for further consideration13 of the petitioner’s claim that he was persecuted on account14 of his political opinion when he was arrested, detained, and15 beaten for providing assistance to North Korean refugees who16 had illegally entered China. In doing so, we noted that, in17 addition to the petitioner’s prolonged detention and18 physical abuse, he was never formally charged with a crime19 or brought before a judge. Jin Jin Long, 620 F.3d at 167.20 We further noted that although the petitioner’s motivation21 in providing the assistance was “humanitarian” and22 “charitable,” rather than overtly political, “a government23 might construe violation of a law as opposition or 3
  4. 4. 1 resistance to the law’s underlying policy, and punish it 2 accordingly.” Id. We therefore remanded to the BIA to 3 consider “whether there is a law barring assistance to North 4 Koreans, and (whether there is or not) in what circumstances 5 persecution of those who assist North Korean refugees would 6 constitute persecution on account of a protected ground.” 7 Id. at 168. 8 We find that remand is warranted for similar reasons in 9 the present case. Here, although Li testified that her10 conduct was humanitarian, the Chinese government “might11 construe violation of a law as opposition or resistance to12 the law’s underlying policy, and punish it accordingly.”13 Jin Jin Long, 620 F.3d at 162. Furthermore, the agency14 “failed to consider a number of facts that may support an15 inference that [Li’s] arrest and detention were pretextual,”16 including Li’s testimony, assumed to be credible by the BIA,17 “that the refugee-smuggling allegations underlying [her]18 arrest were fabrications,” and that she “was never formally19 charged or brought before a judge.” Jin Jin Long, 620 F.3d20 at 167. The U.S. State Department profile also states “that21 the North Korean refugee issue is politically charged” and22 that the Chinese government arrested and detained Chinese23 citizens who assisted North Korean refugees. Jin Jin Long, 4
  5. 5. 1 620 F.3d at 167. Accordingly, remand is required here for 2 the BIA to consider “whether there is a law barring 3 assistance to North Koreans, and (whether there is or not) 4 in what circumstances persecution of those who assist North 5 Korean refugees would constitute persecution on account of a 6 protected ground.” Id. at 168. 7 We note that, in Jin Jin Long, we denied the 8 consolidated petition for review (Dkt. No. 09-3694-ag), 9 finding that: (1) the petitioner failed to exhaust, and10 forfeited before this Court, any argument that the Chinese11 government imputed a political opinion to him; (2) he did12 not have any encounter with the Chinese authorities; and (3)13 he was acting out of “family loyalty” by offering aid to his14 North Korean uncle, aunt, and cousins. 620 F.3d at 168.15 However, we find Li’s case distinguishable because, although16 Li and her family provided assistance to her cousin as well17 as other North Korean refugees, she: (1) claimed that she18 was persecuted on account of her political and imputed19 political beliefs; (2) testified that she knew her conduct20 was illegal before she assisted the refugees; (3) provided21 assistance to one relative and five non-relatives; and (4)22 repeatedly indicated a desire to help North Korean refugees23 generally. Cf. Jin Jin Long, 620 F.3d at 168. 5
  6. 6. 1 Earlier this year we remanded a similar petition to the 2 BIA in Xiong Jin v. Holder, No. 10-3543 (2d Cir. Jan. 3, 3 2012). As more fully explained in the summary order in that 4 case, remand is required in this case for similar reasons. 5 II. Past Persecution 6 The agency also erred by failing to consider the 7 context in which Li was physically mistreated in finding 8 that she did not establish past persecution. Persecution 9 includes physical harm that threatens the victim’s “life or10 freedom,” but non-life-threatening violence and physical11 abuse may constitute persecution as well. Tian-Yong Chen v.12 INS, 359 F.3d 121, 127 (2d Cir. 2004). This Court has13 cautioned the BIA to be “keenly sensitive” to the fact that14 a “minor beating, or for that matter, any physical15 degradation designed to cause pain, humiliation, or other16 suffering, may rise to the level of persecution if it17 occurred in the context of an arrest or detention on the18 basis of a protected ground.” Beskovic v. Gonzales, 467 F.3d19 223, 226 (2d Cir. 2006). Li testified that she was arrested20 and held in detention for ten days, interrogated by two21 police officers regarding why she was providing assistance22 to North Korean refugees, slapped hard twice by the23 officers, and punched in the chest with a closed fist in a 6
  7. 7. 1 very heavy manner that caused her to fall to the ground and 2 injure her arm. 3 It appears that the IJ and BIA failed to adequately 4 consider the context, i.e., Li’s 10-day detention, of the 5 harm she suffered in determining that she failed to 6 establish past persecution. See Beskovic, 467 F.3d at 226. 7 Moreover, although the BIA referenced Li’s detention in 8 citing a case involving minor beatings and detentions, Li 9 was detained for 10 days, not 2-3 as in the case the BIA10 relied on. In addition, because the agency may have erred11 in its nexus finding, both the IJ and BIA may also have12 erred in concluding that the harm Li suffered did not rise13 to the level of persecution because she “was arrested for a14 valid prosecutory reason.” See Beskovic, 467 F.3d at 226-2715 (holding that “the fact that the conduct underlying an16 arrest violated a generally applicable law does not17 automatically preclude finding that the circumstances of the18 arrest combined with physical mistreatment or degradation19 constitute past persecution” and providing that “[w]hether20 the conduct for which a petitioner is arrested implicates a21 petitioner’s race, religion, nationality, social group22 membership, or political opinion is critical”). 7
  8. 8. 1 Accordingly, remand is appropriate to allow the agency to 2 determine whether Li suffered past persecution on account of 3 a protected ground and in turn whether she was entitled to a 4 presumption that she faced a future threat to her life or 5 freedom. See 8 C.F.R. § 1208.16(b)(1); see also Jin Jin 6 Long, 620 F.3d at 167-68. 7 For the foregoing reasons, the petition for review is 8 GRANTED, and the case is REMANDED for further proceedings 9 consistent with this order. As we have completed our10 review, any stay of removal that the Court previously11 granted in this petition is VACATED, and any pending motion12 for a stay of removal in this petition is DISMISSED as moot.13 Any pending request for oral argument in this petition is14 DENIED in accordance with Federal Rule of Appellate15 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).16 FOR THE COURT:17 Catherine O’Hagan Wolfe, Clerk18 8