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 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 Thurgood Marshall United

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

on the 19th 4 day of September, two thousand thirteen.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 PETER W. HALL,

9 DENNY CHIN,

10 Circuit Judges.

11 _____________________________________

12

13 MEI QIN ZHENG,

14 Petitioner, 

15

16 v. 11-3220-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Gang Zhou, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Douglas E. Ginsburg,

27 Assistant Director; Matthew B.

28 George, Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review

2 of a Board of Immigration Appeals ("BIA") decision, it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the decision of

4 the BIA denying Zheng's claims for asylum and withholding of

5 removal is VACATED and the case is REMANDED for further

6 proceedings.

7 Petitioner Mei Qin Zheng, a native and citizen of

8 the People’s Republic of China, seeks review of a July 11,

9 2011, order of the BIA affirming the June 9, 2009, decision

10 of Immigration Judge ("IJ") Sandy Hom, which pretermitted

11 Zheng's application for asylum and denied her application

12 for withholding of removal and relief under the Convention

13 Against Torture ("CAT"). In re Mei Qin Zheng, No. A089 253

14 162 (B.I.A. July 11, 2011), aff'g No. A089 253 162 (N.Y.C.

15 Immig. Ct. June 9, 2009). We assume the parties'

16 familiarity with the underlying facts and procedural history

17 in this case.

18 Under the circumstances of this case, we have

19 reviewed the decisions of both the IJ and the BIA. See Ming

20 Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). The

21 applicable standards of review are well established. See 8 

22 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

23 513 (2d Cir. 2009).

2
1 I. Pretermission of Asylum

2 In general, we do not have jurisdiction to review

3 the agency's finding that an asylum application was untimely

4 under § 1158(a)(2)(B) or that circumstances excusing the

5 untimeliness under § 1158(a)(2)(D) did not exist. See 8

6 U.S.C. § 1158(a)(3). Nonetheless, this Court retains

7 jurisdiction to review constitutional claims and questions

8 of law. Id. § 1252(a)(2)(D).

9 In pretermitting Zheng's asylum application, the

10 BIA concluded that she did not act within a reasonable time

11 of changed circumstances materially affecting her claim

12 because she filed her application on August 11, 2008, almost

13 eleven months after she became a Chinese Democracy Party

14 ("CDP") member on September 25, 2007. In reaching that

15 determination, the BIA relied solely on the date Zheng

16 joined the CDP. "[C]hanged circumstances," however, include

17 changes in "activities the applicant becomes involved in

18 outside the country of feared persecution that place the

19 applicant at risk." 8 C.F.R. § 208.4(a)(4)(i)(B). Zheng

20 contends that the BIA erred in failing to consider whether

21 later activities -- specifically, the publication of her

22 article in the CDP's "World Journal" on December 13, 2007,

3
1 or the online publication of her CDP member page and article

2 on June 4, 2008 -- constituted changed circumstances.

3 Because the Chinese government could have become

4 aware of Zheng's CDP membership for the first time in

5 December 2007 or June 2008, we conclude that the BIA

6 committed legal error by not considering these later events

7 in determining whether her asylum application was filed

8 "within a reasonable period" afterward. 8 C.F.R. §

9 208.4(a)(4); see Shi Jie Ge v. Holder, 588 F.3d 90, 94-95

10 (2d Cir. 2009) (The BIA's use of the "date of [the

11 applicant's] joining the CDP as the only 'changed

12 circumstance' which might allow him to avail himself of the

13 exception . . . constitutes legal error because it is a

14 misapplication of the plain terms of the regulation."). The

15 agency erred by failing to consider Zheng's evidence of

16 events taking place after she became a CDP member that could

17 have triggered a change in circumstances subjecting her to

18 persecution if she were to return to China. 

19 II. Well-Founded Fear of Future Persecution

20 We also find that the BIA erred with respect to

21 its conclusion that even if Zheng's application were timely,

22 she did not establish that she has a well-founded fear of

4
1 persecution in China based on her political activities in

2 the United States.

3 First, the agency based its determination on

4 Zheng's purported failure to establish "that her

5 organization is connected to the 'China Democracy Party'

6 that is discussed in the State Department Reports and

7 described as banned in China." In re Mei Qin Zheng, No.

8 A089 253 162, at 2 (B.I.A.). The record shows that Zheng

9 belonged to a group called the "China Democracy Party

10 Foundation" ("CDP-NY") that is based in New York and was

11 founded by Xie Wanjun, an original founder of the "China

12 Democracy Party" banned in China. Although the record is

13 unclear as to whether the two organizations are the same,

14 Zheng presented evidence that her organization sprang from

15 the banned group and that Wanjun attempted to recruit new

16 members in China, and hence that the Chinese government

17 would be aware of CDP-NY's activities and members. The BIA

18 rejected the evidence in a conclusory fashion, In re Mei Qin

19 Zheng, No. A089 253 162, at 2 (B.I.A.), and apparently it

20 did not consider the possibility that even if the two

21 organizations were not the same, Zheng might have a valid

22 political activity asylum claim without being a member of a

23 "banned organization." Indeed, the State Department Asylum

5
1 Report in the record describes persecution in China for

2 political activity and expression of opinion that does not

3 involve membership in a banned organization. Zheng seeks

4 asylum not based on membership in a banned organization, but

5 for all her political activities in the United States.

6 Second, in its burden of proof and persuasion

7 analysis, the BIA seemingly required direct evidence of past

8 persecution to prove future persecution, when the law

9 provides that an asylum applicant may "establish a

10 well-founded fear of persecution in the absence of any

11 evidence of past persecution" by "showing that authorities

12 in his country of nationality are either aware of his

13 activities or likely to become aware of his activities." 

14 Hongsheng Leng v. Mukasey, 528 F.3d 135, 142-43. Indeed,

15 the BIA suggested that Zheng was required to present

16 evidence that someone in her particular group in New York

17 had returned to China and been persecuted. In re Mei Qin

18 Zheng, No. A089 253 162, at 2 (B.I.A.) ("Having considered

19 the respondent's documentary submissions, the respondent has

20 not presented evidence that anyone involved in the 'China

21 Democracy Party USA headquarters' in Flushing, New York, has

22 returned to China and faced problems based on such activity

23 in the United States."). There are other ways, however, for

6
1 an applicant to establish a well-founded fear of

2 persecution. An asylum applicant who was involved with a

3 new organization, for example, could prove through

4 circumstantial evidence that given the nature of her

5 activities, there is a reasonable likelihood she would be

6 subjected to persecution if she returned to China. See

7 Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005)

8 (noting asylum applicants may use circumstantial evidence to

9 prove motive of persecutor arises from applicant's political

10 beliefs).

11 Finally, the BIA found that Zheng did not show

12 that her CDP article had attracted the attention of the

13 Chinese government or that it was likely published in China. 

14 In re Mei Qin Zheng, No. A089 253 162, at 2 (B.I.A.). Zheng

15 presented evidence, however, that she was listed on the "CDP

16 Member's Site" personal web page and that a link to her

17 article appeared on that website. The record also contains

18 evidence, including the 2008 Annual Report of the

19 Congressional-Executive Commission on China, that the

20 Chinese government monitored the Internet for postings

21 expressing disagreement with the government's views. See,

22 e.g., Cong.-Exec. Comm'n on China, Annual Report (2008)

23 ("The Chinese government and Communist Party continue to

7
1 control the Internet through an effective and pervasive

2 system that relies on government regulation [and is]

3 motivated by political concerns."); see also U.S. Dep't of

4 State, China: Profile of Asylum Claims and Country

5 Conditions (May 2007) ("The Chinese Government sometimes

6 monitors the political activities of students or exchange

7 scholars living abroad. Those who have joined organizations

8 deemed hostile to China have been advised in the official

9 media that they should quit them before returning and while

10 abroad refrain from activities that violate Chinese law."). 

11 Hence, the record contains some indication that Zheng's

12 article was circulated in China or posted in such a manner

13 that the Chinese authorities could access it. It is not

14 apparent from the record that the agency considered this

15 evidence.

16 CONCLUSION

17 For the foregoing reasons, we VACATE the decision

18 of the BIA denying Zheng's claims for asylum and withholding

19 of removal and REMAND the case for further proceedings. The

20 agency is directed to consider whether: (1) Zheng's

21 political activities, in addition to her initial membership

22 in the CDP, triggered a change in circumstances affecting

23 the timeliness of her asylum application; (2) the CDP

8
1 headquartered in New York is related to the CDP banned in

2 China; (3) Zheng's activity in the United States was a basis

3 for a reasonable fear of future persecution, even assuming

4 she was not a member of a banned organization or an

5 organization whose members had been persecuted in the past;

6 and (4) the Chinese government could have had access to

7 Zheng's article given its publication via the Internet and 

8 the record evidence of the Chinese government's monitoring

9 of the Internet.

10 FOR THE COURT: 

11 Catherine O’Hagan Wolfe, Clerk

9