11-4447

Lin v. Holder

BIA

A088 376 084

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 Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 8th day of August, two thousand thirteen.

PRESENT:

CHESTER J. STRAUB,

PETER W. HALL,

DENNY CHIN,

Circuit Judges.

_____________________________________

SHENG MEI LIN,

Petitioner,

 v. 11-4447

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_____________________________________

FOR PETITIONER: NORMAN KWAI WING WONG, New York, NY. 

FOR RESPONDENT: JASON WISECUP (Stuart F. Delery,

Acting Assistant Attorney General;

Nancy Friedman, Senior Litigation

Counsel; Sharon M. Clay, Trial

Attorney, on the brief), 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, the decision of the BIA is VACATED, and the case

is REMANDED for further proceedings.

Petitioner Sheng Mei Lin, a native and citizen of the

People’s Republic of China, seeks review of a September 28,

2011, order of the BIA denying her motion to reopen. See In

re Sheng Mei Lin, No. A088 376 084 (B.I.A. Sept. 28, 2011). 

Although acknowledging both that petitioner has converted to

Christianity and “that the mistreatment of some Christians

and other religious minorities in China is a longstanding

and ongoing problem,” the BIA, nonetheless, denied Lin’s

motion to reopen on the basis that Lin had not provided

sufficient evidence to demonstrate that “the Chinese

authorities are aware, or are likely to become aware, of

[Lin’s] conversion to Christianity in the United States, or

that she would likely face persecution upon her return due

to her becoming a Christian.” Certified Administrative

Record (“CAR”) 3. On that basis, the BIA held that Lin

failed to demonstrate an objectively reasonable fear of

persecution. Id. We assume the parties’ familiarity with

the underlying facts and procedural history in this case. 

2
We review the BIA’s denial of a motion to reopen for

abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006). The BIA abuses its discretion where

its decision is “conclusory, devoid of reasoning, and

fail[s] to account for . . . substantial record

evidence.” Norani v. Gonzales, 451 F.3d 292, 295 (2d Cir.

2006) (internal quotation marks omitted); see also Zhao v.

U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (“An

abuse of discretion may be found . . . where the [BIA’s]

decision provides no rational explanation, . . . is devoid

of any reasoning, or contains only summary or conclusory

statements . . . .”).

In order to establish eligibility for asylum based on

future persecution, an applicant must show “that [she]

subjectively fears persecution and . . . that [her] fear is

objectively reasonable.” Ramsameachire v. Ashcroft, 357

F.3d 169, 178 (2d Cir. 2004). To prevail on a motion to

reopen, therefore, Lin is required to establish a realistic

chance that she would be able to demonstrate an objectively

reasonable fear of persecution if her proceedings were

reopened. Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.

2005). An applicant can demonstrate an objectively

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reasonable fear of future persecution “in one of two ways:

first, by offering evidence that he or she would be singled

out individually for persecution; and second, by proving the

existence of a pattern or practice in his or her country of

nationality . . . of persecution of a group of persons

similarly situated . . . and . . . establishing his or her

own inclusion in, and identification with, such a group.” 

Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir. 2008)

(internal quotation marks and alterations omitted).

In reviewing the BIA’s September 28, 2011, decision, we

are confronted with two problems. First, although we cannot

divine whether the BIA has actually determined that

petitioner’s evidence proves there is a pattern or practice

of persecution of Christians in China, it appears it may

have done so. Indeed, as already noted, the BIA agreed that

there has been “mistreatment of some Christians . . . in

China” and that such mistreatment has been “a longstanding

and ongoing problem.” CAR 3. Whether this is or is not a

determination that petitioner’s evidence has demonstrated

such pattern or practice, the BIA needs to make that 

determination abundantly clear before we may adequately

review it.

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Second, if indeed the BIA has determined on this record

that there exists a pattern or practice of persecution of

Christians in China, then, having acknowledged that Lin has

converted to Christianity, the BIA must further consider

whether and, if so, explain why in its view it is necessary

for petitioner, a member of the persecuted class, also to

prove that “the Chinese authorities are aware, or are likely

to become aware, of [Lin’s] conversion to Christianity,” CAR

3, in order to demonstrate a likelihood that she will be

persecuted. That is, to demonstrate likelihood of

persecution, if there is evidence from which to conclude

there is a pattern or practice of persecution of a

particular group of which petitioner is a member, why is it

not enough merely to show membership in that persecuted

group, which petitioner has done? 1

In denying the motion to reopen, the BIA relied on

Lin’s failure to establish that Chinese authorities would

likely become aware of her conversion to Christianity in the

1 Given the frequency with which such an issue is

likely to be encountered, we note that a precedential

opinion of the BIA resolving the issue would provide

valuable guidance to courts and litigants. The BIA could

thereby articulate a legal basis for requiring the

petitioner to establish anything more than membership in the

group that is subject to the pattern or practice of

persecution by the government of the country to which a

petitioner would be returned.

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United States. We have not held, however, and the BIA cites

no authority for the proposition, that in order to prevail

at the motion to reopen stage, the petitioner must show--in

addition to establishing a pattern or practice of

persecution of members of a group--that government officials

were likely to become aware of the petitioner’s membership

in that group. Given the ambiguity in the BIA’s ruling as

to whether Lin has failed to establish a pattern or practice

of persecution of Christians in China, the BIA may well have

erred by denying the motion to reopen on the basis that Lin

failed to establish that the Chinese authorities would

likely become aware of her conversion to Christianity.2

2 In Kyaw Zwar Tun v. U.S. Immigration & Naturalization

Serv., 445 F.3d 554 (2d Cir. 2006), we remanded the case to

the IJ “to determine [1] whether Tun had a well-founded fear

of persecution on account of pro-democracy political

activities and . . . [2] whether Burmese government

officials were likely to become aware of Tun's political

dissident activities in the United States.” 445 F.3d at

571. We did not hold in Tun, however, that to establish

eligibility for asylum based on inclusion in a group subject

to a pattern or practice of persecution, a petitioner must

show that the foreign government was likely to become aware

of petitioner’s activities. In fact, we noted that in order

to establish eligibility for asylum based on petitioner’s

inclusion in a group subject to a pattern and practice of

persecution, a petitioner is “not required to establish that

the [foreign] government was aware of him as an individual.” 

Id. at 570. Rather, “it sufficed to establish petitioner's

eligibility for asylum . . . for petitioner to prove that he

was a pro-democracy activist and that the Burmese government

has a pattern or practice of persecuting similarly situated

pro-democracy activists.” Id. (citing, inter alia, 8 C.F.R.

§ 208.13(b)(2)(iii)). 

6
Accordingly, because it is unclear whether the BIA

determined that petitioner’s evidence establishes a pattern

or practice of persecution of Christians in China, the

decision of the BIA is VACATED, and the matter is REMANDED

for a determination of that issue. If that issue is

resolved in the affirmative, the BIA must also consider

whether and why it would be necessary for petitioner also to

prove that government officials were likely to become aware

of her conversion to Christianity in order to demonstrate a

likelihood of persecution. In so doing, the BIA must be

mindful that this Circuit has never held that an asylum

applicant who has established inclusion in a group subject

to a pattern or practice of persecution need also show that

the applicant would be “singled out individually for

persecution.” 8 C.F.R. § 208.13(b)(2)(iii). Indeed, the

regulation provides:

In evaluating whether the applicant has sustained

the burden of proving that he or she has a

well-founded fear of persecution, the asylum

officer or immigration judge shall not require

the applicant to provide evidence that there is a

reasonable possibility he or she would be singled

out individually for persecution if: (A) The

applicant establishes that there is a pattern or

practice . . . of persecution of a group of

persons similarly situated to the applicant on

account of [specified criteria, including

religion]; and (B) The applicant establishes his

or her own inclusion in, and identification with,

such group of persons such that his or her fear

of persecution upon return is reasonable.

Id.

7
The petition for review is GRANTED. We VACATE the

decision of the BIA and REMAND the case for further

consideration consistent with this order.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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