11-3220-ag BIA Zheng v. Holder Hom, IJ A089 253 162 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECE DENTIAL**  **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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 19 th** **day of September, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MEI QIN ZHENG,** 13 Petitioner**,** 14 15 **v. 11-3220-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Gang Zhou, New York, New York.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Douglas E. Ginsburg,** 26 **Assistant Director; Matthew B.** 27 **George, Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review 1 of a Board of Immigration Appeals ("BIA") decision, it is 2 hereby ORDERED, ADJUDGED, AND DECREED that the decision of 3 the BIA denying Zheng's claims for asylum and withholding of 4 removal is VACATED and the case is REMANDED for further 5 proceedings. 6 Petitioner Mei Qin Zheng, a native and citizen of 7 the People’s Republic of China, seeks review of a July 11, 8 2011, order of the BIA affirming the June 9, 2009, decision 9 of Immigration Judge ("IJ") Sandy Hom, which pretermitted 10 Zheng's application for asylum and denied her application 11 for withholding of removal and relief under the Convention 12 Against Torture ("CAT"). In re Mei Qin Zheng, No. A089 253 13 162 (B.I.A. July 11, 2011), aff'gNo. A089 253 162 (N.Y.C. 14 Immig. Ct. June 9, 2009). We assume the parties' 15 familiarity with the underlying facts and procedural history 16 in this case. 17 Under the circumstances of this case, we have 18 reviewed the decisions of both the IJ and the BIA.See Ming 19 Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). The 20 applicable standards of review are well established. See8 21 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 22 513 (2d Cir. 2009). 23

2**I. Pretermission of Asylum** 1 In general, we do not have jurisdiction to review 2 the agency's finding that an asylum application was untimely 3 under § 1158(a)(2)(B) or that circumstances excusing the 4 untimeliness under § 1158(a)(2)(D) did not exist. See8 5 U.S.C. § 1158(a)(3). Nonetheless, this Court retains 6 jurisdiction to review constitutional claims and questions 7 of law. Id.§ 1252(a)(2)(D). 8 In pretermitting Zheng's asylum application, the 9 BIA concluded that she did not act within a reasonable time 10 of changed circumstances materially affecting her claim 11 because she filed her application on August 11, 2008, almost 12 eleven months after she became a Chinese Democracy Party 13 ("CDP") member on September 25, 2007. In reaching that 14 determination, the BIA relied solely on the date Zheng 15 joined the CDP. "[C]hanged circumstances," however, include 16 changes in "activities the applicant becomes involved in 17 outside the country of feared persecution that place the 18 applicant at risk." 8 C.F.R. § 208.4(a)(4)(i)(B). Zheng 19 contends that the BIA erred in failing to consider whether 20 later activities -- specifically, the publication of her 21 article in the CDP's "World Journal" on December 13, 2007, 22

3or the online publication of her CDP member page and article 1 on June 4, 2008 -- constituted changed circumstances. 2 Because the Chinese government could have become 3 aware of Zheng's CDP membership for the first time in 4 December 2007 or June 2008, we conclude that the BIA 5 committed legal error by not considering these later events 6 in determining whether her asylum application was filed 7 "within a reasonable period" afterward. 8 C.F.R. § 8 208.4(a)(4); see Shi Jie Ge v. Holder, 588 F.3d 90, 94-95 9 (2d Cir. 2009) (The BIA's use of the "date of [the 10 applicant's] joiningthe CDP as the only 'changed 11 circumstance' which might allow him to avail himself of the 12 exception . . . constitutes legal error because it is a 13 misapplication of the plain terms of the regulation."). The 14 agency erred by failing to consider Zheng's evidence of 15 events taking place after she became a CDP member that could 16 have triggered a change in circumstances subjecting her to 17 persecution if she were to return to China. 18 **II. Well-Founded Fear of Future Persecution** 19 We also find that the BIA erred with respect to 20 its conclusion that even if Zheng's application were timely, 21 she did not establish that she has a well-founded fear of 22

4persecution in China based on her political activities in 1 the United States. 2 First, the agency based its determination on 3 Zheng's purported failure to establish "that her 4 organization is connected to the 'China Democracy Party' 5 that is discussed in the State Department Reports and 6 described as banned in China." In re Mei Qin Zheng, No. 7 A089 253 162, at 2 (B.I.A.). The record shows that Zheng 8 belonged to a group called the "China Democracy Party 9 Foundation" ("CDP-NY") that is based in New York and was 10 founded by Xie Wanjun, an original founder of the "China 11 Democracy Party" banned in China. Although the record is 12 unclear as to whether the two organizations are the same, 13 Zheng presented evidence that her organization sprang from 14 the banned group and that Wanjun attempted to recruit new 15 members in China, and hence that the Chinese government 16 would be aware of CDP-NY's activities and members. The BIA 17 rejected the evidence in a conclusory fashion, In re Mei Qin 18 Zheng, No. A089 253 162, at 2 (B.I.A.), and apparently it 19 did not consider the possibility that even if the two 20 organizations were not the same, Zheng might have a valid 21 political activity asylum claim without being a member of a 22 "banned organization." Indeed, the State Department Asylum 23 5Report in the record describes persecution in China for 1 political activity and expression of opinion that does not 2 involve membership in a banned organization. Zheng seeks 3 asylum not based on membership in a banned organization, but 4 for all her political activities in the United States. 5 Second, in its burden of proof and persuasion 6 analysis, the BIA seemingly required direct evidence of past 7 persecution to prove future persecution, when the law 8 provides that an asylum applicant may "establish a 9 well-founded fear of persecution in the absence of any 10 evidence of past persecution" by "showing that authorities 11 in his country of nationality are either aware of his 12 activities or likely to become aware of his activities." 13 Hongsheng Leng v. Mukasey, 528 F.3d 135, 142-43. Indeed, 14 the BIA suggested that Zheng was required to present 15 evidence that someone in her particular group in New York 16 had returned to China and been persecuted. In re Mei Qin 17 Zheng, No. A089 253 162, at 2 (B.I.A.) ("Having considered 18 the respondent's documentary submissions, the respondent has 19 not presented evidence that anyone involved in the 'China 20 Democracy Party USA headquarters' in Flushing, New York, has 21 returned to China and faced problems based on such activity 22 in the United States."). There are other ways, however, for 23 6an applicant to establish a well-founded fear of 1 persecution. An asylum applicant who was involved with a 2 new organization, for example, could prove through 3 circumstantial evidence that given the nature of her 4 activities, there is a reasonable likelihood she would be 5 subjected to persecution if she returned to China. See 6 Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 (2d Cir. 2005) 7 (noting asylum applicants may use circumstantial evidence to 8 prove motive of persecutor arises from applicant's political 9 beliefs). 10 Finally, the BIA found that Zheng did not show 11 that her CDP article had attracted the attention of the 12 Chinese government or that it was likely published in China. 13 In re Mei Qin Zheng, No. A089 253 162, at 2 (B.I.A.). Zheng 14 presented evidence, however, that she was listed on the "CDP 15 Member's Site" personal web page and that a link to her 16 article appeared on that website. The record also contains 17 evidence, including the 2008 Annual Report of the 18 Congressional-Executive Commission on China, that the 19 Chinese government monitored the Internet for postings 20 expressing disagreement with the government's views.See, 21

e.g. , Cong.-Exec. Comm'n on China, Annual Report (2008) 22 ("The Chinese government and Communist Party continue to 23 7control the Internet through an effective and pervasive 1 system that relies on government regulation [and is] 2 motivated by political concerns."); see alsoU.S. Dep't of 3 State, China: Profile of Asylum Claims and Country 4 Conditions (May 2007) ("The Chinese Government sometimes 5 monitors the political activities of students or exchange 6 scholars living abroad. Those who have joined organizations 7 deemed hostile to China have been advised in the official 8 media that they should quit them before returning and while 9 abroad refrain from activities that violate Chinese law."). 10 Hence, the record contains some indication that Zheng's 11 article was circulated in China or posted in such a manner 12 that the Chinese authorities could access it. It is not 13 apparent from the record that the agency considered this 14 evidence. 15

**CONCLUSION** 16 For the foregoing reasons, we VACATE the decision 17 of the BIA denying Zheng's claims for asylum and withholding 18 of removal and REMAND the case for further proceedings. The 19 agency is directed to consider whether: (1) Zheng's 20 political activities, in addition to her initial membership 21 in the CDP, triggered a change in circumstances affecting 22 the timeliness of her asylum application; (2) the CDP 23 8headquartered in New York is related to the CDP banned in 1 China; (3) Zheng's activity in the United States was a basis 2 for a reasonable fear of future persecution, even assuming 3 she was not a member of a banned organization or an 4 organization whose members had been persecuted in the past; 5 and (4) the Chinese government could have had access to 6 Zheng's article given its publication via the Internet and 7 the record evidence of the Chinese government's monitoring 8 of the Internet. 9

FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11

9