Filed: Oct. 23, 2014
Latest Update: Mar. 02, 2020
Summary: 13-3056 Jin v. Holder BIA Vomacka, IJ A200 733 629 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 NOTA
Summary: 13-3056 Jin v. Holder BIA Vomacka, IJ A200 733 629 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 NOTAT..
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13-3056
Jin v. Holder
BIA
Vomacka, IJ
A200 733 629
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of October, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHUNHONG JIN,
14 Petitioner,
15
16 v. 13-3056
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Evan Goldberg, Of Counsel, Law
25 Office of Theodore M. Davis, New
26 York, New York.
27
28
29
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Jennifer L. Lightbody;
3 Robbin K. Blaya, Trial Attorney,
4 Office of Immigration Litigation,
5 United States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is GRANTED.
12 Chunhong Jin, a native and citizen of the People’s
13 Republic of China, seeks review of a July 29, 2013, decision
14 of the BIA affirming the May 4, 2012, decision of
15 Immigration Judge (“IJ”) Alan A. Vomacka, denying her
16 asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”). In re Chunhong Jin, No.
18 A200 733 629 (B.I.A. July 29, 2013), aff’g No. A200 733 629
19 (Immig. Ct. N.Y. City May 4, 2012). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 Under the circumstances of this case, we have reviewed
23 the IJ’s decision as modified by the BIA, i.e., minus the
24 basis for denying relief that the BIA expressly declined to
25 consider (the IJ’s adverse credibility determination). See
26 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
2
1 (2d Cir. 2005); see also Yan Chen, 417 F.3d 268, 271 (2d
2 Cir. 2005). The applicable standards of review are well
3 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
4 Holder,
562 F.3d 510, 513 (2d Cir. 2009). The only issue
5 before us is the agency’s denial of withholding of removal
6 based on its determination that Jin failed to demonstrate a
7 nexus between the harm she suffered and feared and a
8 protected ground.
9 In Jin Jin Long v. Holder,
620 F.3d 162 (2d Cir. 2010),
10 we remanded to the BIA for further consideration of the
11 petitioner’s claim that he was persecuted on account of his
12 political opinion when he was arrested, detained, and beaten
13 for providing assistance to North Korean refugees who had
14 illegally entered China.* In doing so, we noted that the
15 Chinese government’s arrests of individuals suspected of
16 aiding North Korean refugees “can be seen as enforcement of
17 the law (assuming there is a law prohibiting assistance to
18 North Korean refugees), but it [might] also suggest an
*
In Jin Jin Long, we denied a second petition raising
a similar claim because that petitioner did not argue that
officials imputed a political opinion to him and because the
record did not support an inference that the petitioner (who
was neither arrested nor harmed) acted from a political
motive or that government officials were investigating him
as an attempt at suppression. 620 F.3d at 168.
3
1 active resistance to China’s North Korean immigration
2 policies, and an attempt at suppression.” Id. at 167.
3 Although the petitioner “testified that his conduct was
4 humanitarian or charitable, and did not cast his motives as
5 political,” we found that “the BIA failed to consider a
6 number of facts that may support an inference that his
7 arrest and detention were pretextual.”
Id. Specifically,
8 the petitioner had testified credibly that: (1) he was never
9 formally charged or brought before a judge; (2) he was
10 “subjected to prolonged detention and repeated physical
11 abuse”; and (3) “U.S. State Department country reports on
12 China suggest[ed] that the North Korean refugee issue is
13 politically charged.”
Id. Therefore, we remanded for the
14 BIA to determine “whether there is a law barring assistance
15 to North Koreans, and (whether there is or not) in what
16 circumstances persecution of those who assist North Korean
17 refugees would constitute persecution on account of a
18 protected ground.”
Id. at 164; see also
id. at 167-68.
19 We find that remand is warranted for similar reasons in
20 the present case. The BIA attempted to distinguish Jin’s
21 case from Jin Jin Long because the IJ focused on Jin’s
22 admission that she had given her North Korean cousin money
4
1 to enter China in violation of immigration laws. However,
2 the record does not support the IJ’s assumption that Jin was
3 charged and punished for violating a generally applicable
4 anti-smuggling law. In addition, as in Jin Jin Long, the
5 agency simply ignored evidence that the Chinese government
6 did not formally charge Jin with any crime and that police
7 subjected her to a lengthy detention and repeated physical
8 abuse, from which one could infer that her arrest and
9 detention were pretextual. See Jin Jin Long, 620 F.3d at
10 167-68.
11 Accordingly, because the agency assumed, without
12 support, that Jin was legitimately prosecuted for smuggling,
13 and ignored evidence that supported the inference that her
14 detention was a pretext for persecution on account of an
15 imputed political opinion, remand is appropriate. See
id.
16 For the foregoing reasons, the petition for review is
17 GRANTED, and the case is REMANDED for further proceedings
18 consistent with this order.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
23
5
