Huang, Cai Long v. Gonzales, Alberto R. , 139 F. App'x 753 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 14, 2005
Decided July 20, 2005
Before
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 03-4037
CAI LONG HUANG, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A70-900-775
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ORDER
Cai Long Huang, a native and citizen of the People’s Republic of China,
petitions for review of an order of the Board of Immigration Appeals (“BIA”)
summarily affirming the decision of an Immigration Judge (“IJ”) denying his
application for asylum and withholding of removal. Huang conceded he was
removable but requested asylum, claiming he had been persecuted for participating
in student protests in Fujian province in support of the Tiananmen Square uprising
in 1989. Because the IJ’s cursory opinion provides us with insufficient basis for
review, we grant the petition for review and remand for further proceedings.
Huang entered the United States illegally in March 1990. He applied for
asylum in 1993, claiming that he was persecuted for participating in the
Nos. 03-4037 Page 2
“Tiananmen Square Movement” and that he will be persecuted again if he returns.
After a five-year delay that is unexplained in the record, the Immigration and
Naturalization Service served him with a Notice to Appear, charging him with
being removable and referring his application to an immigration judge.
Huang admitted the charge but reiterated his basis for seeking asylum. In a
written statement and through testimony, Huang recounted his involvement in
student protests in Fujian province between April and June 1989. Then a 16-year-
old student in the city of Fuqing, Huang was inspired by news of student protests
against the government in Beijing’s Tiananmen Square. Led by a schoolteacher,
Huang and eight classmates joined thousands of protesters in the nearby city of
Fuzhou marching, picketing, and passing out leaflets at four separate rallies.
Huang and his classmates were arrested by police for possessing leaflets. He says
that police—seeking the names of other protesters—repeatedly kicked him and
pulled his hair. They “forcefully struck [his] head on [a] table,” causing him to
bleed from his “forehead and lower jaws [sic]” and lose consciousness. Huang
remained in custody for one month, during which police interrogated him and
repeatedly “kick[ed him] around.” After his release, he was expelled from school for
protesting; this expulsion prevented him from being hired for a job or admitted to
another school. When authorities began criminally charging some of the protesters,
Huang left home and eventually found work performing manual labor with his
brother-in-law. After Huang’s teacher and a classmate were charged, convicted,
and imprisoned, Huang concluded that his situation was “hopeless” and he fled
China, entering the United States two months later.
To corroborate his testimony, Huang presented a document, dated June 20,
1989, and signed by the principal of his school in Fuqing, expelling him for
“counter-revolutionary behavior.” The document states that Huang spoke out in
support of the Tiananmen Square protesters and recruited other students to do the
same. Huang also presented an affidavit from his teacher in Fuqing, noting that he
recruited Huang and another student to protest against corruption, and that as a
result both students were “characterized as counter-revolutionary rioters.”
The IJ rejected Huang’s claim in a perfunctory opinion that did not address
Huang’s credibility but simply concluded that he had “not met his burden of
establishing eligibility for either asylum or withholding of removal.” The Board
affirmed without opinion under its streamlining procedure, 8 C.F.R. § 1003.1(e)(4);
therefore, we review the IJ’s decision directly. Huang v. Gonzales, 403 F.3d 945,
948 (7th Cir. 2005).
An IJ must state reasons for denying asylum, Shahandaeh-Pey v. INS,
831 F.2d 1384 (7th Cir. 1987), and those stated reasons are the only grounds upon
which we may affirm the denial. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943);
Nos. 03-4037 Page 3
Mengistu v. Ashcroft, 355 F.3d 1044, 1046-47 (7th Cir. 2004). If the IJ’s decision
sidesteps a determination of the alien’s credibility and concludes “instead that [he]
hasn’t carried [his] burden of proof, the reviewing court is left in the dark as to
whether the judge thinks the asylum seeker failed to carry [his] burden of proof
because [his] testimony was not credible, or for some other reason.” Iao v. Gonzales,
400 F.3d 530, 534 (7th Cir. 2005). Also, if the IJ’s decision lacks a reasoned
analysis of the evidence, then we must remand for further proceedings. Id. at 533.
The IJ based his conclusion that Huang had not met his burden of proof on
three very brief “observations.” First, the IJ observed that Huang failed to present
“documentation to establish his identity.” Second, the IJ noted that Huang’s
documentary evidence—the expulsion notice and his teacher’s affidavit—were
undated, unauthenticated, and “not particularly detailed, and fail[ed] to specifically
discuss seemingly important aspects of his claim.” Third, the IJ faulted Huang for
failing to submit “a single document relating to present-day conditions in China,
including any evidence which would support his belief that he would be persecuted
on account of his alleged participation in demonstrations in Fuzhou over 13 years
ago.”
We note initially that one of these “observations” is factually incorrect—the
documents Huang submitted do bear dates. In addition, to the extent that the IJ
found Huang’s documentary corroboration to be insufficient to carry his burden of
proof, the judge failed to first make a credibility finding regarding Huang’s
testimony. See Diallo v. Ashcroft, 381 F.3d 687, 689 (7th Cir. 2004); Gontcharova v.
Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004) (application of corroboration rule
requires an explicit credibility finding). The IJ’s remaining reason for denying
asylum was that Huang did not present any documents to show he had a well-
founded fear of persecution if forced to return to China. But the IJ completely
failed to address Huang’s evidence of past persecution; if an alien establishes past
persecution, a presumption arises that the persecution would continue upon his
return. See Zheng v. Gonzales, 409 F.3d 804, 810 (7th Cir. 2005); Zaidi v. Ashcroft,
377 F.3d 678, 681 (7th Cir. 2004). That finding is for the IJ (or BIA) to make in the
first instance. See INS v. Ventura, 537 U.S. 12, 16-17 (2002).
Because the IJ’s decision is based on factual misstatements and lacks any
analysis of Huang’s credibility and evidence of past persecution, it cannot be
regarded as reasoned. See Iao, 400 F.3d at 533; Diallo, 381 F.3d at 699. We
therefore GRANT the petition for review and REMAND for further proceedings
consistent with this opinion.