09-2360-ag

Chen v. Holder

BIA

Chew, IJ

A094 824 646

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 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

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

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is GRANTED.

13 Petitioner Yan Chen, a native and citizen of the

14 People’s Republic of China, seeks review of a May 7, 2009

15 order of the BIA affirming the August 31, 2007 decision of

16 Immigration Judge (“IJ”) George T. Chew denying his

17 application for asylum, withholding of removal, and relief

18 under the Convention Against Torture (“CAT”). In re Yan

19 Chen No. A094 824 646 (B.I.A. May 7, 2009), aff’g No. A094

20 824 646 (Immig. Ct. N.Y. City Aug. 31, 2007). We assume the

21 parties’ familiarity with the underlying facts and

22 procedural history in this case.

23 Under the circumstances of this case, we review the

24 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). 

26 The applicable standards of review are well-established. 

27 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
3

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

10 that Chen “was beaten while he was in China.” IJ Op. at 4.

11 The IJ noted that Chen “was released after three days, and

12 his wife did have a second child. The wife was never

13 aborted nor sterilized, nor was the respondent sterilized.” 

14 Id. The IJ concluded that Chen did not suffer past

15 persecution, but did not address Chen’s beating or detention

16 in his analysis, focusing instead on the 25,000 RMB fine

17 imposed on Chen and his wife. For its part, the BIA found

18 that Chen’s testimony regarding his detention and beating

19 was “vague and conclusory.” BIA Op. at 2. Neither finding

20 was a sufficient basis upon which to deny relief.

21 We have stated that the agency must be “keenly

22 sensitive to the fact that a ‘minor beating’ or, for that

23 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

10 probe for additional details seeking to draw out

11 inconsistencies that would support an adverse credibility

12 determination, but it may not deny the claim simply on

13 vagueness grounds when the testimony is sufficiently

14 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

16 104, 114 (2d Cir. 2005). Here, the IJ assumed that Chen was

17 credible. Moreover, given our holding in Beskovic, Chen’s

18 testimony was not so vague that he failed to state a valid

19 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

22 F.3d 296 (2d Cir. 2007). The BIA thus erred in assuming

23 that Chen had established the requisite nexus to a protected
5

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

10 failed adequately to support its finding that Chen did not

11 suffer past persecution. 

12 For the foregoing reasons, the petition for review is

13 GRANTED, and the case REMANDED for further proceedings

14 consistent with this order. As we have completed our

15 review, any pending motion for a stay of removal in this

16 petition is DISMISSED as moot. Any pending request for oral

17 argument in this petition is DENIED in accordance with

18 Federal Rule of Appellate Procedure 34(a)(2), and Second

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

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