09 -2 360- ag

Chen v. Holder BIA Chew, IJ A094 824 646 

### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RU LI NG S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED O N ORA FT ERJAN UARY 1 , 20 07 , IS P ERMI TT ED AND I S GOVE RN ED B Y FE DE RA L RU LE 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 16 day of June, two thousand ten. th 5 6 PRESENT: 7 RALPH K. WINTER, 8 REENA RAGGI, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges . 11

_______________________________________ 12 13 YAN CHEN, 14 Petitioner , 15 16 v. 09-2360-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

______________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, New York.2 1 2 FOR RESPONDENT: Tony West, Assistant Attorney 3 General, Civil Division; Emily Anne 4 Radford, Assistant Director; Jesse 5 D. Lorenz, Trial Attorney, Office of 6 Immigration Litigation, United 7 States Department of Justice, 8 Washington, D.C. 9 UPON DUE CONSIDERATION of this petition for review of a 1 0 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 1 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 2 is GRANTED. 1 3 Petitioner Yan Chen, a native and citizen of the 1 4 People’s Republic of China, seeks review of a May 7, 2009 1 5 order of the BIA affirming the August 31, 2007 decision of 1 6 Immigration Judge (“IJ”) George T. Chew denying his 1 7 application for asylum, withholding of removal, and relief 1 8 under the Convention Against Torture (“CAT”). In re Yan 19 Chen No. A094 824 646 (B.I.A. May 7, 2009), aff’gNo. A094 2 0 824 646 (Immig. Ct. N.Y. City Aug. 31, 2007). We assume the 2 1 parties’ familiarity with the underlying facts and 2 2 procedural history in this case. 2 3 Under the circumstances of this case, we review the 2 4 IJ’s decision as modified by the BIA. See Xue Hong Yang v. 25 U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 2 6 The applicable standards of review are well-established. 27 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder , 5623 1 F.3d 510, 513 (2d Cir. 2009); Edimo-Doualla v. Gonzales , 464 2 F.3d 276, 281-82 (2d Cir. 2006). 3 Chen claimed that when his wife became pregnant for a 4 second time, she went into hiding. When the authorities 5 came to search for her, Chen refused to reveal her 6 whereabouts. As a result, he claims, they detained him for 7 three days and beat him. Neither the IJ nor the BIA found 8 that Chen was not credible. Nevertheless, both concluded 9 that he had not experienced past persecution. The IJ stated 1 0 that Chen “was beaten while he was in China.” IJ Op. at 4. 1 1 The IJ noted that Chen “was released after three days, and 1 2 his wife did have a second child. The wife was never 1 3 aborted nor sterilized, nor was the respondent sterilized.” 14 Id. The IJ concluded that Chen did not suffer past 1 5 persecution, but did not address Chen’s beating or detention 1 6 in his analysis, focusing instead on the 25,000 RMB fine 1 7 imposed on Chen and his wife. For its part, the BIA found 1 8 that Chen’s testimony regarding his detention and beating 1 9 was “vague and conclusory.” BIA Op. at 2. Neither finding 2 0 was a sufficient basis upon which to deny relief. 2 1 We have stated that the agency must be “keenly 2 2 sensitive to the fact that a ‘minor beating’ or, for that 2 3 matter, any physical degradation designed to cause pain,4 1 humiliation, or other suffering, may rise to the level of 2 persecution if it occurred in the context of an arrest or 3 detention on the basis of a protected ground.” Beskovic v. 4 Gonzales , 467 F.3d 223, 226 (2d Cir. 2006). The IJ’s 5 conclusory treatment of Chen’s beating and the IJ’s implicit 6 conclusion that it did not constitute persecution are 7 insufficient to permit meaningful review. See id. at 327. 8 The BIA’s finding was similarly insufficient. When the 9 agency finds that an applicant’s testimony is vague, it may 1 0 probe for additional details seeking to draw out 1 1 inconsistencies that would support an adverse credibility 1 2 determination, but it may not deny the claim simply on 1 3 vagueness grounds when the testimony is sufficiently 1 4 specific as to the essential facts so as to state a prima 15 facie case. Jin Chen v. U.S. Dep’t of Justice , 426 F.3d 1 6 104, 114 (2d Cir. 2005). Here, the IJ assumed that Chen was 1 7 credible. Moreover, given our holding in Beskovic , Chen’s 1 8 testimony was not so vague that he failed to state a valid 1 9 claim that he had been persecuted. See id. ; Jin Shui Qiu v. 20 Ashcroft , 329 F.3d 140, 151 (2d Cir. 2003), overruled on 21 other grounds by Shi Liang Lin v. U.S. Dep’t of Justice , 494 2 2 F.3d 296 (2d Cir. 2007). The BIA thus erred in assuming 2 3 that Chen had established the requisite nexus to a protected5 1 ground but finding no past persecution based on its 2 conclusion that Chen’s testimony was impermissibly vague. 3 See Jin Chen , 426 F.3d at 114. 4 Because the BIA assumed without deciding that Chen’s 5 conduct “of helping his wife hide from family planning 6 officials and hiring a doctor to have [her] IUD removed” 7 constituted resistance to China’s family planning policies, 8 BIA Op. at 2, we do not reach this issue. We conclude 9 simply that remand here is necessary because the agency 1 0 failed adequately to support its finding that Chen did not 1 1 suffer past persecution. 1 2 For the foregoing reasons, the petition for review is 1 3 GRANTED, and the case REMANDED for further proceedings 1 4 consistent with this order. As we have completed our 1 5 review, any pending motion for a stay of removal in this 1 6 petition is DISMISSED as moot. Any pending request for oral 1 7 argument in this petition is DENIED in accordance with 1 8 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 9 Circuit Local Rule 34.1(b). 2 0 FOR THE COURT: 2 1 Catherine O’Hagan Wolfe, Clerk 22 23 24