Rong Li v. Holder , 368 F. App'x 159 ( 2010 )

09-0001-ag
Li v. Holder
BIA
Hom, IJ
A098 740 587
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 2 nd day of March, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 ______________________________________
12 RONG LI,
13 Petitioner,
14
15 v. 09-0001-ag
16 NAC
17
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 __________________________________
22
23 FOR PETITIONER: Fuhao Yang; Law Offices of Fuhao
24 Yang, PLLC, New York, New York.
25
26 F O R RESPONDENT: Tony West, Assistant Attorney
27 General, Civil Division; Richard M.
28 Evans, Assistant Director; Aliza B.
29 Alyeshmerni, Attorney, Office of
1 Immigration Litigation, U.S.
2 Department of Justice, Washington,
3 D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
8 review is GRANTED, the BIA’s order denying asylum and
9 withholding of removal is VACATED, and the petition is
10 REMANDED to the BIA for reconsideration in light of this
11 order.
12 Petitioner Rong Li, a native and citizen of the
13 People’s Republic of China, seeks review of a December 5,
14 2008 order of the BIA, affirming the January 18, 2007
15 decision of Immigration Judge Sandy K. Hom, denying her
16 application for asylum, withholding of removal, and relief
17 under the Convention Against Torture (“CAT”). In re Rong
18 Li, No. A098 740 587 (B.I.A. Dec. 5, 2008), aff’g No. A098
19 740 587 (Immig. Ct. N.Y. City Jan. 18, 2007). We assume the
20 parties’ familiarity with the underlying facts and
21 procedural history in this case.
22 When the BIA affirms the IJ’s decision in some respects
23 but not others, this Court reviews the IJ’s decision as
24 modified by the BIA decision, i.e., minus the arguments for
2
1 denying relief that were rejected by the BIA. See Xue Hong
2 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
3 2005). We review the agency’s factual findings under the
4 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
5 see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.
6 2008). Questions of law and the application of law to
7 undisputed fact are reviewed de novo. Salimatou Bah v.
8 Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).
9 The BIA determined that, even assuming Li’s
10 credibility, she failed to establish past persecution or a
11 well-founded fear based on her Christian faith. This Court
12 has emphasized that a “minor beating, or for that matter,
13 any physical degradation designed to cause pain,
14 humiliation, or other suffering, may rise to the level of
15 persecution if it occurred in the context of an arrest or
16 detention on the basis of a protected ground.” Gjolaj v.
17 BCIS, 468 F.3d 140, 142 (2d Cir. 2006) (internal citations
18 omitted); Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d
19 Cir. 2006). Li testified that she was arrested in May 2005
20 at an unauthorized Christian gathering, detained for 48
21 hours, interrogated, slapped, and required to pay a fine.
22 Police arrived at her home during a church gathering in June
3
1 2005 but she left through a back door, avoiding arrest. Li
2 also provided a statement with her application for asylum,
3 which the BIA acknowledged in its order, stating that she
4 had bled from the mouth after being slapped by the police
5 and that, after fleeing from her in home June of 2005, the
6 police threatened her parents and informed them that they
7 were required to turn Li over to the authorities upon her
8 return.
9 The BIA held that the petitioner had not experienced
10 past persecution, but its analysis on this point refers only
11 to the first arrest. The BIA stated that the "detention was
12 the only incident of physical mistreatment, the mistreatment
13 consisted of two slaps, and [the petitioner] did not claim
14 that she suffered injuries or sought medical treatment based
15 on [this incident]." This finding ignores the second
16 incident in June of 2005. Moreover, the BIA decision seems
17 to minimize the importance of the context in which the
18 petitioner’s detention occurred. See Beskovic v. Gonzalez,
19 467 F.3d 223, 226-27 (2d Cir. 2006) (“The BIA must . . . be
20 keenly sensitive to the fact that a minor beating or, for
21 that matter, any physical degradation designed to cause
22 pain, humiliation, or other suffering, may rise to the level
4
1 of persecution if it occurred in the context of an arrest or
2 detention on the basis of a protected ground.” (internal
3 quotation marks omitted) (emphasis added)). These omissions
4 undermine both the BIA's examination of past persecution and
5 its analysis of the reasonableness of fear of future
6 persecution.
7 Although the court accords substantial deference to the
8 BIA's findings of fact, appellate review of its decisions
9 requires that the agency adequately identify and consider
10 relevant facts in the first instance. See Yi Long Yang v.
11 Gonzales, 478 F.3d 133, 142 (2d Cir. 2007) ("[O]ur duty [is]
12 to assess the BIA's ruling to determine whether there was a
13 failure to consider an important fact in the record"); Wei
14 Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) ("[T]he
15 BIA should provide us with more than cursory, summary or
16 conclusory statements, so that we are able to discern its
17 reasons for declining to afford relief to a petitioner."
18 (internal quotation marks omitted)); see also Delgado v.
19 Mukasey, 508 F.3d 702, 709 (2d Cir. 2007) ("[F]ailure to
20 consider material evidence in the record is ground for
21 remand."). In this instance, the decision of the BIA to
22 deny relief fails to address all of the material facts
5
1 contained in the record and, therefore, we remand the case
2 for reconsideration in light of the omitted facts and our
3 decision in Beskovic.
4 For the foregoing reasons, the petition for review is
5 GRANTED. We VACATE the BIA’s order denying relief and
6 REMAND for proceedings consistent with this order. Any
7 pending request for oral argument in this petition is DENIED
8 in accordance with Federal Rule of Appellate Procedure
9 34(a)(2), and Second Circuit Local Rule 34.1(b).
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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