10-3733-ag
    Jin v. Holder
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A088 775 717
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 27th day of June, two thousand twelve.

    PRESENT:
             JON O. NEWMAN,
             ROSEMARY S. POOLER,
             DENNY CHIN,
                  Circuit Judges.
    ______________________________________

    XUE FENG JIN,
             Petitioner,
                                                           10-3733-ag
                    v.                                     NAC

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Lewis Hu, New York, New York.
    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Jamie E. Grimes, Senior
                                  Litigation Counsel; Walter Bocchini,
                                  Trial Attorney, Office of
                                  Immigration Litigation, Civil
                                  Division, United States Department
                                  of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED in part, DENIED in part, and GRANTED in part.

    Petitioner, Xue Feng Jin, a native and citizen of

China, seeks review of an August 20, 2010, decision of the

BIA affirming the October 30, 2008, decision of Immigration

Judge (“IJ”) Barbara A. Nelson denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Xue Feng Jin, No.

A088 775 717 (B.I.A. Aug. 20, 2010), aff’g No. A088 775 717

(Immig. Ct. N.Y. City Oct. 30, 2008).    We assume the

parties’ familiarity with the underlying facts and

procedural history of the case.

    Under the circumstances of this case, we have reviewed

both the IJ’s and the BIA’s opinions “for the sake of

completeness.”     Zaman v. Mukasey, 

, 237 (2d Cir.

2008).   The applicable standards of review are well-

established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 

, 513 (2d Cir. 2009).    As an initial

matter, we lack jurisdiction to review the agency’s

pretermission of Jin’s asylum application as untimely


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because Jin challenges only the IJ’s factual findings

regarding when he arrived in the United States.     See

8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen v. U.S.

Dep’t of Justice, 

, 326-29 (2d Cir. 2006)

(holding that a question of law is not implicated “when the

petition for review essentially disputes the correctness of

the IJ’s fact-finding”).   Thus, we dismiss Jin’s petition

for review with respect to his asylum claim.

    In addition, we deny the petition to the extent it

challenges the agency’s denial of CAT relief.     The agency

reasonably determined that Jin failed to establish that he

faced a clear probability of torture upon return to China

because he did not present any particularized evidence that

he would be singled out for torture, or that those who

support the separation of the Yanbian region from China or

provide assistance to North Korean refugees in China

generally face torture.    See Mu-Xing Wang v. Ashcroft, 

, 143-44 (2d Cir. 2003); see also Mu Xiang Lin v.

U.S. Dep’t of Justice, 

, 159-60 (2d Cir. 2005).

    However, with respect to Jin’s application for

withholding of removal, the agency erred by failing to

properly address whether the harm Jin claims to face upon

return to China is on account of his political opinion.        In

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Jin Jin Long v. Holder, 

(2d Cir. 2010), we

remanded a petition (Dkt. No. 09-3472-ag) to the BIA for

further consideration of the petitioner’s claim that he was

persecuted on account of his political opinion when he was

arrested, detained, and beaten for providing assistance to

North Korean refugees who had illegally entered China.      In

doing so, we noted that, in addition to the petitioner’s

prolonged detention and physical abuse, he was never

formally charged with a crime or brought before a judge.

Jin Jin 

.    We further noted that

although the petitioner’s motivation in providing the

assistance was “humanitarian” and “charitable,” rather than

overtly political, “a government might construe violation of

a law as opposition or resistance to the law’s underlying

policy, and punish it accordingly.”    

to the BIA to consider “whether there is a law

barring assistance to North Koreans, and (whether there is

or not) in what circumstances persecution of those who

assist North Korean refugees would constitute persecution on

account of a protected ground.”    

       We find that remand is warranted for similar reasons in

the present case.    Like the aforementioned petitioner in Jin

Jin Long, Jin’s actions – joining an illegal organization

that promoted the reunification of the Yanbian region of

China with Korea, distributing flyers claiming that the

Yanbian region was part of Korea, and providing

transportation and other assistance to North Korean refugees

out of the Yanbian region – suggested a political opinion in

opposition to the Chinese government, particularly given

that Jin testified that he knew that his actions were in

violation of Chinese law.    See Jin Jin 

.    In addition, contrary to the IJ’s assertion that Jin

was charged with violating a general law criminalizing

smuggling, the record indicates that Jin was charged with a

crime specific to promoting the return of the Yanbian region

to Korea and helping North Korean refugees as opposed to

illegal immigrants in general.     Moreover, as in Jin Jin

Long, the background evidence states “that the North Korean

refugee issue is politically 

.

       We note that, in Jin Jin Long, we denied the

consolidated petition for review (Dkt. No. 09-3694-ag),

finding that: (1) the petitioner failed to exhaust, and


                               5
forfeited before this Court, any argument that the Chinese

government imputed a political opinion to him; (2) he did

not have any encounter with the Chinese authorities; and (3)

he was acting out of “family loyalty” by offering aid to his

North Korean uncle, aunt, and 

.

However, Jin’s case is distinguishable because he: (1)

claimed that he was persecuted on account of his political

opinion; (2) testified that he knew his conduct was illegal

before he joined the Yanbian Korean Association; and (3)

provided assistance to non-relatives out of a motivation to

support the return of the Yanbian region and to help North

Korean refugees.   Cf. Jin Jin 

.

    Thus, because the agency failed to properly analyze

whether the harm Jin fears is on account of his political

opinion and more specifically whether the prosecution he

claims to face would be a pretext for persecution on account

of his political opinion, remand is appropriate to allow the

agency to determine whether it is more likely than not that

Jin’s life or freedom would be threatened on account of his

real or imputed political opinion if he were removed to

China.   See Jin Jin Long, 

.




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    Earlier this year we remanded a similar petition to the

BIA in Xiong Jin v. Holder, No. 10-3543 (2d Cir. Jan. 3,

2012).     As more fully explained in the summary order in that

case, remand is required in this case for similar reasons.

    For the foregoing reasons, the petition for review is

DISMISSED in part, DENIED in part, and GRANTED in part, and

the case is REMANDED for further proceedings consistent with

this order.     As we have completed our review, the pending

motion for a stay of removal in this petition is DISMISSED

as moot.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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