Duo Wei Chen v. U.S. Attorney General , 190 F. App'x 907 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 05-15115 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
AUGUST 2, 2006
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THOMAS K. KAHN
CLERK
BIA No. A97-658-370
DUO WEI CHEN,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(August 2, 2006)
Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Duo Wei Chen, a native and citizen of China, petitions for review of the
affirmance by the Board of Immigration Appeals (“BIA”) of the decision of the
Immigration Judge (“IJ”). The decision denied asylum and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT”).1 Reversible error has been shown; we grant
the petition.
We review the IJ’s decision in this case, not the BIA’s, because the
BIA affirmed the IJ’s decision without an opinion. See Mendoza v. U.S. Attorney
Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). An IJ’s factual determination that
an alien is not entitled to asylum “must be upheld if it is supported by substantial
evidence.” Mazariegos v. U.S. Attorney Gen., 241 F.3d 1320, 1323 (11th Cir.
2001). An alien may obtain asylum if he is a “refugee”: a person unable or
unwilling to return to his country of nationality “because of persecution or a
well-founded fear of persecution on account of” a protected ground, including
political opinion and membership in a particular social group. 8 U.S.C. §§
1101(a)(42)(A); 1158(a)(1), (b)(1). The asylum applicant bears the burden of
proving statutory “refugee” status with specific and credible evidence. Al Najjar
v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Chen testified that two
policemen arrested him in China while he was distributing fliers advocating the
practice of Falun Gong, a movement banned by the Chinese government in 1999.
1
As will be discussed, the IJ did not reach a decision on Chen’s application for withholding of
removal under the Immigration and Nationality Act (“INA”).
2
The police held Chen for two days. During this time, officers twice placed a book
on his back and hit the book with an iron hammer. The police asked Chen to
promise not to practice Falun Gong; but Chen replied that Falun Gong was not
bad. Chen’s father paid for Chen’s release; and Chen sought treatment for his
back injury. The police later arrested Chen’s father, who also practiced Falun
Gong, and “confiscated” Chen’s mother’s store and Chen’s home. Chen left for
Shanghai, where he remained for “two to three months” without being bothered by
the police. He then left China.
After summarizing Chen’s testimony and the discussion of China’s
treatment of Falun Gong members provided in the 2004 Department of State
Country Report on China, which was included in the record, the IJ noted that
Chen’s “claim generally comports with the State Department’s background
information.” The IJ explained Chen’s burden in establishing his eligibility for
asylum; and the judge noted that it was important to determine if Chen’s beating
by the police rose to the level of persecution. The IJ then concluded that Chen
insufficiently corroborated his testimony; and he denied the petition for asylum.
Here, the IJ did not make an adverse credibility determination about Chen.
See Yang v. U.S. Attorney Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (explaining
that “IJ’s must make clean determinations of credibility”) (internal quotation
3
omitted). Because the IJ focused on the insufficiency of Chen’s evidence, instead
of on credibility issues, “we will assume that any credibility determinations by the
IJ were not dispositive of the appeal.” Id.We turn to the merits of Chen’s asylum claim. Although the IJ
acknowledged the importance of determining whether Chen’s allegations rose to
the level of persecution, the IJ did not decide whether the acts about which Chen
testified demonstrated that he had suffered past persecution or had a well-founded
fear of future persecution.2 “The IJ’s failure to make this determination precludes
us from undertaking meaningful judicial review of the merits of his order.” See
Antipova v. U.S. Attorney Gen., 392 F.3d 1259, 1265 (11th Cir. 2004)
(explaining, in the context of a withholding of removal claim, that “the regulations
do not give the IJ the discretion to refrain from making a determination regarding
past persecution altogether”). In addition, the IJ did not rule on Chen’s
application for withholding of removal under the INA.
2
The only conclusion that the IJ reached on this issue -- that “we have no information that
supports [Chen’s] claim of persecution” -- appears in the IJ’s discussion of Chen’s failure to
corroborate his testimony. Because an alien’s credible testimony -- without corroboration -- may be
sufficient to support his burden of proof for asylum, and because the IJ did not make an adverse
credibility finding about Chen, we do not construe the IJ’s statement as a factual finding about
whether Chen had suffered past persecution or had a well-founded fear of future persecution. See
8 C.F.R. § 208.13(a) (“The burden of proof is on the applicant for asylum to establish that he or she
is a refugee . . . . The testimony of the applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.”).
4
Chen also claims that the IJ erred in not finding him eligible for CAT relief
because Chen was tortured as a result of his support for Falun Gong. On this
claim, the IJ again failed to make a finding about whether Chen had met his
burden of proof to receive relief.3
Therefore, we vacate the BIA’s and IJ’s decisions about the denial of
Chen’s applications for asylum and CAT relief; and we remand this case to allow a
decision on whether Chen suffered past persecution or established a well-founded
fear of future persecution in support of his asylum claim and whether Chen met his
burden of proof on his CAT claim. We also remand to provide for a decision on
Chen’s withholding of removal claim in the first instance.
PETITION GRANTED; VACATED AND REMANDED.
3
The IJ explained that Chen “has not claimed that he was, in fact, tortured by the government,
except he says that he was in jail for two days and they tortured him.” The IJ also concluded that
Chen failed to produce corroborating evidence in support of his CAT claim. We do not construe
these statements as a finding by the IJ that Chen failed to meet his burden of proof for CAT relief.
See 8 C.F.R. § 208.16(b) (explaining that an alien’s credible testimony may be sufficient to sustain
the burden of proof for CAT relief without corroboration).
5