Filed: Jun. 23, 2016
Latest Update: Mar. 02, 2020
Summary: 13-4897 Zheng v. Lynch BIA Hom, IJ A200 733 708 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED 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
Summary: 13-4897 Zheng v. Lynch BIA Hom, IJ A200 733 708 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED 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 ..
More
13-4897
Zheng v. Lynch
BIA
Hom, IJ
A200 733 708
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 23rd day of June, two thousand sixteen.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________
DONGMEI ZHENG,
Petitioner,
v. 13-4897
NAC
LORETTA E. LYNCH1, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New
York.
1
Loretta E. Lynch is automatically substituted as the
respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
FOR RESPONDENT: Joyce R. Branda, Acting
Assistant Attorney General;
Anthony W. Norwood, Senior
Litigation Counsel; Richard
Zanfardino, Trial Attorney,
Office of Immigration
Litigation, 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 GRANTED.
Petitioner Dongmei Zheng, a native and citizen of the
People’s Republic of China, seeks review of a December 4,
2013, decision of the BIA, affirming the December 8, 2011,
decision of an Immigration Judge (“IJ”), denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re
Dongmei Zheng, No. A200 733 708 (B.I.A. Dec. 4, 2013),
aff’g No. A200 733 708 (Immig. Ct. N.Y. City Dec. 8, 2011).
We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
We have reviewed the IJ’s decision as modified by the
BIA, i.e., minus the IJ’s decision to pretermit Zheng’s
2
application as untimely. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
applicable standards of review are well established. 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d
510, 513 (2d Cir. 2009).
The IJ erred in finding that Zheng’s detention and
beating did not amount to past persecution. While the
Immigration and Nationality Act does not provide a
definition of persecution, the BIA has defined persecution
as a “threat to the life or freedom of, or the infliction
of suffering or harm upon, those who differ in a way
regarded as offensive.” Matter of Acosta, 19 I. & N. Dec.
211, 222 (B.I.A. 1985), overruled, in part, on other
grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);
accord Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d 332,
342 (2d Cir. 2006). Past persecution can be based on harm
other than threats to life or freedom, including “non-life-
threatening violence and physical abuse,” Beskovic v.
Gonzales,
467 F.3d 223, 226 n.3 (2d Cir. 2006), but the
harm must be sufficiently severe to rise above “mere
harassment,”
Ivanishvili, 433 F.3d at 341. The difference
3
between harassment and persecution is “necessarily one of
degree that must be decided on a case-by-case basis.”
Ivanishvili, 433 F.3d at 341.
The IJ found Zheng’s detention and beatings by police
insufficient to constitute past persecution because she did
not seek professional medical treatment and because she did
not fully describe her injuries in her asylum application.
We have held that “a ‘minor beating’ or, for that matter,
any physical degradation designed to cause pain,
humiliation, or other suffering, may rise to the level of
persecution if it occurred in the context of an arrest or
detention on the basis of a protected ground.” Beskovic,
467 F.3d at 226. Credible evidence of physical abuse at
the hands of government agents may preclude a finding that
the applicant’s mistreatment is mere harassment.
Ivanishvili, 433 F.3d at 342. We have never held that the
beating of a detained applicant on the basis of a protected
ground does not constitute persecution simply because the
applicant does not seek professional medical treatment.
Moreover, contrary to the IJ’s reasoning, the fact that
Zheng failed to describe her injuries in detail in her
4
asylum application does not render her beatings while
detained less serious.
We also find error in the agency’s demand for
corroborating evidence. While the IJ found that Zheng
testified credibly, he nevertheless concluded that she did
not submit sufficient corroborating evidence to carry her
burden of proof. “While consistent, detailed, and credible
testimony may be sufficient to carry the alien’s burden,
evidence corroborating h[er] story, or an explanation for
its absence, may be required where it would reasonably be
expected.” Diallo v. INS, 232 F.3d 279, 285 (2d Cir.
2000); see also 8 U.S.C. § 1158(b)(1)(B)(ii). Before
denying a claim because of an applicant’s failure to
provide corroborating evidence, the agency must (1) explain
what evidence the applicant should have submitted; (2)
establish that the evidence is reasonably available; (3)
allow the applicant an opportunity to explain the omission
and (4) assess any explanation given. 8 U.S.C. §
1158(b)(1)(B)(ii); Chuilu Liu v. Holder,
575 F.3d 193, 197-
98 (2d Cir. 2009). We remand for the IJ to do so here.
5
The IJ discounted letters from Zheng’s father and aunt
because they were unsworn, and contained no indicia of
reliability. There was no error in this decision. Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006). However, the IJ also found that Zheng should have
submitted other evidence to corroborate her arrest and
detention, but did not specify what evidence Zheng should
have submitted. This was error, as the IJ is required to
specify the evidence the applicant should have submitted
and show that it was reasonably available. 8 U.S.C.
§ 1158(b)(1)(B)(ii); Chuilu
Lu, 575 F.3d at 197-98.
It is unclear both what type of evidence the agency
thought Zheng needed to submit and which portions of the
claim the evidence should have corroborated. Insofar as
the agency wanted Zheng to obtain evidence of her
mistreatment from sources other than her family, the
Chinese government appears to be the likeliest source. We
have cautioned against requiring applicants to obtain
corroborating evidence from their alleged persecutors. Cao
He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 405 (2d Cir.
2005).
6
For the foregoing reasons, the petition for review is
GRANTED and the case is REMANDED for further proceedings
consistent with this order.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
7
