07-3630-ag
Shi Jie Ge v. Holder


                           UNITED STATES COURT OF APPEALS

                                 FOR THE SECOND CIRCUIT

                                            __________

                                       August Term, 2008

Argued: May 27, 2009                                                Decided: December 2, 2009


                                     Docket No. 07-3630-ag

                                            __________


________________________________________________________

SHI JIE GE,
                              Petitioner,

                        -v-

ERIC H. HOLDER JR., ATTORNEY GENERAL,1
                        Respondent.
________________________________________________________

LEVAL, POOLER, and B.D. PARKER, Circuit Judges.

        The petitioner seeks review of the July 25, 2007 decision of the Board of Immigration

Appeals, which affirmed an Immigration Judge’s November 10, 2005 order denying his

applications for asylum, for withholding of removal, and for relief under the United Nations

Convention Against Torture and Other Inhumane or Degrading Treatment or Punishment.

Because we find that the BIA committed errors both as to the timeliness of the petitioner’s


        1
          Pursuant to Federal Rule of Appellate Procedure 43(c)(2), current Attorney General
Eric H. Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey
as the respondent in this case.
application for asylum and in considering whether the petitioner would likely face persecution

should he be returned to his native country, we GRANT the petition, VACATE the agency’s

decision denying relief, and REMAND to the agency for further proceedings.

                                          __________

                                     DAVID K. S. KIM (Matthew L. Guadagno, Kerry W.
                                     Bretz, and Jules E. Coven, on the brief), BRETZ &
                                     COVEN, LLP, New York, NY, for Petitioner.

                                     ANNETE M. WIETECHA, Trial Attorney, Office of
                                     Immigration Litigation (Anh-Thu P. Mai, Senior Litigation
                                     Counsel, and Jeffrey S. Bucholtz, Acting Asst. Attorney
                                     General, on the brief), U.S. Department of Justice,
                                     Washington, D.C., for Respondent.


POOLER, Circuit Judge:

       Shi Jie Ge has timely petitioned this Court, pursuant to Section 242 of the Immigration

and Nationality Act (“INA”), as amended 8 U.S.C. § 1252, for review of the July 25, 2007

decision of the Board of Immigration Appeals (“BIA”), which affirmed an Immigration Judge’s

(“the IJ”) November 10, 2005 order denying Ge’s applications for asylum, for withholding of

removal, and for relief under the United Nations Convention Against Torture and Other

Inhumane or Degrading Treatment or Punishment (“CAT”). 1465 U.N.T.S. 85. We conclude

that errors committed by the BIA require remand of Ge’s applications for further proceedings

consistent with this opinion.



                                            FACTS

       According to his Form I-589 Application for Asylum and Withholding of Removal,



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which was filed on March 10, 2004, Shi Jie Ge was born in Tianjin, China, on September 11,

1961. Ge, who remains a Chinese citizen, entered the United States on a six-month visa on May

1, 2000, and has never returned to China. His wife, whom he married in 1989, and his son, who

was born in 1990, remain in China.

        Ge eventually came to reside in Queens, New York and, on July 28, 2004, he was served

there with a Notice to Appear, which charged him with being a removable alien under Section

237(a)(1)(B) of the INA, in that he had remained in the United States beyond the expiration of

his visa. 8 U.S.C. § 237(a)(1)(B). In a September 3, 2004 hearing before the IJ, Ge admitted to

the truth of this allegation.

        In his asylum application, Ge avers that he left China because of official retaliation

against him after he complained of corrupt management practices at the electronics firm for

which he worked as a salesman. But Ge’s claim for asylum does not arise from these events.

Rather, Ge’s claim arises from his membership in the China Democracy Party (“CDP”), which,

as attested to by the party’s chairman, Ge joined, on June 15, 2001, after he entered the United

States. On this appeal, Ge declares that he joined the CDP “because he was angry with the

corrupt Chinese government and shared the principles the party stands for – freedom, human

rights and justice.” The record contains photographs of Ge participating in CDP demonstrations

at the Chinese consulate in New York City, as well as articles written by Ge which were posted

on the organization’s website. We do not perceive that the Government questions the

genuineness of Ge’s involvement with the CDP.

        Ge asserts that his work on behalf of the CDP includes the clandestine recruitment, by

means of telephone, of party members within China itself. In fact, Ge contends that his


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membership in the CDP was revealed to government authorities in China after an individual he

recruited was arrested. After this individual reported Ge’s membership, Ge asserts that, on

October 20, 2003, his wife was visited by Chinese police officials, who urged her to encourage

Ge to return to China. In a letter to the IJ, dated July 28, 2004, Ge’s wife acknowledges that she

first learned of Ge’s CDP membership because of the arrest of “my husband’s friend,” although

the letter did not mention any visit by government officials following the recruit’s arrest. In his

asylum application, Ge posits his fear of persecution should he be returned to China:

                 As I exposed my [CDP] membership public [sic], my parents and
                my wife have been frequently harassed and persecuted by
                Chin[ese] Communist Party authority. My wife and my child
                dared not stay in our own home and they kept moving from place
                to place so as to avoid the harassment from Chinese police.
                Naturally I will face Chin[ese] Communist Party authority
                persecution if I return to China now, so I apply to the United States
                government for asylum.

The CDP’s chairman, in testimony before the IJ on Ge’s behalf, claims that CDP “members

whose member[ships] were revealed in China were all arrested. Right now there are

approximately 50 [CDP] members still in jail in China.”

        In her oral decision delivered on November 10, 2005, the IJ denied all of Ge’s

applications for relief. First, the IJ found that Ge’s application for asylum was untimely filed

under the applicable deadline of one year from entry into the United States because Ge did not

file his application until almost four years after his arrival in this country. Further, the IJ rejected

Ge’s argument that he was subject to an exception to the one-year deadline based upon his claim

that his CDP membership only became known to Chinese authorities in 2003. The IJ found that,

beyond Ge’s own testimony, “the Court has no evidence to establish that his membership in the



                                                   4
CDP has ever been discovered by the government of China.”

       The IJ also held that, even if Ge’s application for asylum had been timely filed, his claim

for asylum based upon the possibility of persecution should he be returned to China would fail.

Specifically, the IJ held that although “[t]he background material [submitted by Ge] does indicate

that dissidents from China are arrested and jailed” upon their return, “the Court finds that the

respondent has not offered sufficient evidence to establish that the respondent’s activities have

become known to the government of China.” After denying Ge’s application for asylum, the IJ

proceeded to deny his applications for withholding of removal, and for relief under CAT.

       Ge filed a timely appeal to the BIA. In a July 25, 2007 decision, the BIA denied the

appeal. In re Shi Jie Ge, No. 898-273-363 (B.I.A. July 25, 2007). The BIA first considered the

timeliness of Ge’s asylum application:

                       With regard to the timeliness of the respondent’s
               application for asylum, we see no reason to disturb the [IJ’s]
               finding that it was not filed within [one] year of the respondent’s
               arrival and did not fall within any exceptions to the filing deadline.
               Specifically, the respondent entered the United States in May 2000,
               but did not file his asylum application until March 2004, more than
               [three] years after he arrived. The respondent contends that his
               circumstances changed when he joined the CDP. Even if this
               membership did constitute changed circumstances, the respondent
               still waited nearly [three] years after he joined the CDP before
               filing his asylum application, which does not constitute filing an
               application within a reasonable time after a change of
               circumstances.

       The BIA also upheld the denial of relief arising from Ge’s claim that he faced persecution

should he be returned to China on the merits. Specifically, the BIA rejected Ge’s reliance upon

our decision in Tun v. INS, 445 F.3d 554 (2d Cir. 2006):

               In Tun, there was evidence that the Burmese government conducts


                                                 5
               extensive intelligence-gathering and surveillance on groups of
               Burmese expatriates who are politically active against the Burmese
               government in the United States. Id. at 569-70. In contrast, while
               the 2006 United States Department of [State] Country Report on
               China (of which we take judicial notice) provides that CDP
               activists sometimes are targeted for arrest or arbitrary detention,
               there is no indication that China tracks expatriate political activists
               (Report at 4-5, 7). Thus, we do not find that Tun . . . supports the
               respondent’s claim. We do not find that it is more likely than not
               that the respondent’s life or freedom will be threatened on account
               of his political activities in the United States.

The instant appeal followed.



                                            ANALYSIS

       The parties disagree as to the scope of review we should employ in considering whether

the agency properly denied Ge’s claims for relief. Citing Yan Chen v. Gonzales, 417 F.3d 268,

271 (2d Cir. 2005), Ge posits that this is a case where the BIA both adopted and supplemented

the IJ’s decision and that, accordingly, we should consider the IJ’s decision, as supplemented by

the BIA. We agree with the Government, however, that the BIA conducted its own analysis of

Ge’s claims and that the BIA did not expressly adopt the IJ’s decision. Accordingly, we will

review the decision of the BIA alone. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,

159 (2d Cir. 2005).

       There can be no disagreement that we review the agency’s legal conclusions de novo, see

Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir. 2007), and its factual findings, including

adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. §

1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).

       In order to be considered a refugee and therefore eligible for asylum, the INA provides


                                                  6
that Ge must show that he has suffered past persecution on account of “race, religion, nationality,

membership in a particular social group, or political opinion,” or that he has a “well-founded fear

of persecution” on such grounds should he be ordered to return to his native country. 8 U.S.C. §

1101(a)(42). A well-founded fear is “a subjective fear that is objectively reasonable. A fear is

objectively reasonable even if there is only a slight, though discernible, chance of persecution.”

Tambadou v. Gonzales, 446 F.3d 298, 302 (2d Cir. 2006) (citations and internal quotation marks

omitted).

        A. The Timeliness of Ge’s Application for Asylum.

        The INA provides that “[a]ny alien who is physically present in the United States or who

arrives in the United States . . . may apply for asylum” so long as “the alien demonstrates by clear

and convincing evidence that the [asylum] application has been filed within 1 year after the date

of the alien’s arrival in the United States.” 8 U.S.C. §§ 1158(a)(1), 1158(a)(2)(B). There is no

question that Ge’s application, which is dated February 15, 2004, is untimely under this statute

because the application itself indicates that Ge entered the United States on May 1, 2000. Ge

argues, however, that his application was timely filed in light of events relating to his CDP

membership, which began after he arrived in the United States. Accordingly, Ge relies upon 8

U.S.C. section 11518(a)(2)(D), which provides for an exception to the one-year timeliness

deadline because of “changed circumstances which materially affect the applicant’s eligibility for

asylum . . . .” Pursuant to 8 C.F.R. section 208.4(a)(4)(i)(B), “changed circumstances” include

“activities the applicant becomes involved in outside the country of feared persecution that place

the applicant at risk.”

        As already noted, the BIA found that Ge could not avail himself of the exception because


                                                 7
“[e]ven if [his CDP] membership did constitute changed circumstances, [Ge] still waited nearly

three years after he joined the CDP before filing his asylum application, which does not

constitute filing an application within a reasonable time after a change of circumstances.”

Further, as the Government correctly reminds us, the INA mandates that, for the most part, no

court shall have jurisdiction to review the agency’s finding that an asylum application was

untimely. See 8 U.S.C. § 1158(a)(3).

       We do, however, retain jurisdiction to review constitutional claims and questions of law.

See 8 U.S.C. § 1252(a)(2)(D). And, although the Government contends that Ge is merely

quibbling about factual findings, we find that he has raised a valid question of law concerning the

BIA’s application of the “changed circumstances exception” to the one-year filing deadline.

       Again, the BIA looked to the date of Ge’s joining the CDP as the only “changed

circumstance” which might allow him to avail himself of the exception. We agree with Ge that

this constitutes legal error because it is a misapplication of the plain terms of the regulation. See

Perriello v. Napolitano, __ F.3d __, 2009 WL 2749779 at *2 (2d Cir. Sept. 1, 2009) (stating that

although federal court owes deference to BIA’s interpretation of its own regulations,

interpretation that is plainly erroneous is not controlling).

       Specifically, Ge contends that while he joined the CDP in 2001, at the direction of the

party leadership he “did not engage in any political activities publicly until approximately March

of 2003.” Further, Ge states that “he discovered for the first time that his activities with CDP

were revealed to the Chinese government in October 2003 when he learned through his family

that a fellow CDP member he recruited was arrested by the Chinese authorities.” Ge argues that

8 C.F.R. section 208.4(a)(4)(i)(B) “clearly provides that ‘activities the applicant becomes


                                                   8
involved in outside the country of feared persecution that place the applicant at risk,’ not mere

membership in a political party, provide[] an exception to the one-year deadline.” Thus, Ge

argues that, by focusing exclusively on the date of his enrollment as a member of the CDP, the

BIA ignored the plain terms of the regulation, which define “changed circumstances” far more

broadly.

       We agree. Ge has demonstrated that the BIA committed legal error by effectively holding

that the only activity cognizable under the regulation was the act of his enrollment in the CDP, an

act which Ge contends was committed clandestinely. By taking no notice of Ge’s later activities

as a member of the CDP, acts which Ge contends amounted to a public declaration of his

membership in an organization banned by the Chinese government, the BIA ignored the plain

terms of the regulation and improperly made party membership alone the trigger date for Ge’s

invocation of the changed circumstances exception. The regulation entitles Ge to consideration

of his contention that it was events taking place after he became a CDP member which have

placed him at risk of persecution should he be returned to China.

       B. Fear of Future Prosecution.

       We also find that Ge has raised a valid question of law concerning whether the BIA

properly applied this Court’s holding in Tun v. INS, 445 F.3d 554 (2d Cir. 2006), in determining

that Ge had not proffered sufficient evidence that he would face persecution should he be

returned to China. Before the BIA, Ge contended that he was eligible for relief because of

evidence he presented regarding the persecution of CDP members who are returned to China.

The BIA did not disregard this evidence. On the contrary, as already noted, it made reference to

“the 2006 United States Department of [State] Country Report on China . . . [which] provides


                                                 9
that CDP activists sometimes are targeted for arrest or arbitrary detention . . . .” The BIA,

however, held that Ge’s claim failed under Tun because in that case “there was evidence that the

Burmese government conducts extensive intelligence-gathering and surveillance on groups of

Burmese expatriates who are politically active against the Burmese government,” while “there is

no indication that China tracks expatriate political activists.”

       This reading of Tun makes a grant of relief contingent upon a showing that the country to

which the petitioner is to be returned conducts such extensive monitoring activities beyond its

borders that it can be assumed that the authorities have become aware that the petitioner himself

has been involved with a banned organization while living abroad. But this is not the standard

we have adopted. In a case coincidentally involving the asylum claim of a CDP member, this

Court recently discussed its holding in Tun:

               To demonstrate that “[his] fear of [future] persecution is well-
               founded,” [ ] an applicant must establish that his putative
               “persecutor is, or could become, aware of the applicant’s
               possession of the disfavored belief or characteristic.” [Tun, 445
               F.3d at 565] As we have explained, an applicant can make this
               showing in one of two ways: first, by offering evidence that “he or
               she would be singled out individually for persecution”; and second,
               by “prov[ing] the existence of ‘a pattern or practice in his or her
               country of nationality . . . of persecution of a group of persons
               similarly situated to the applicant’ . . . and . . . establish[ing] ‘his or
               her own inclusion in, and identification with, such [a] group.’” Id.
               at 564 (quoting 8 C.F.R. § 208.13(b)(2)(iii)).

                        Put simply, to establish a well-founded fear of persecution
               in the absence of any evidence of past persecution, an alien must
               make some showing that authorities in his country of nationality
               are either aware of his activities or likely to become aware of his
               activities.

Hongsheng Leng v. Mukasey, 528 F.3d 135, 142-43 (2d Cir. 2008) (per curiam) (emphasis



                                                   10
added).

          Thus, Tun does not require a petitioner to demonstrate that authorities in the country to

which he is to be returned are possessed of an awareness of his involvement in a banned

organization prior to his return. Rather, a petitioner may also demonstrate a well-founded fear of

future persecution by demonstrating that his involvement in a banned organization may become

known after his return. This is precisely what warranted a remand in Hongsheng Leng:

                          The IJ, while concluding that Leng had not testified
                 credibly as to his belief that the government of the [Peoples’
                 Republic of China (“PRC”)] was aware of his CDP membership
                 and political activities, did not make any specific finding as to
                 whether other evidence in the record supports this claim [of future
                 persecution]. Accordingly, we remand this matter for the very
                 limited purpose of allowing the IJ to consider whether authorities
                 of the PRC were (1) aware or (2) likely to become aware of Leng’s
                 activities.

528 F.3d at 143. We find remand is proper here to reopen the record to permit Ge to present

additional evidence as to the Chinese government’s likely future awareness of his involvement

with the CDP. On remand, the IJ should determine whether Ge has made a substantial showing

of 1) a well founded fear of future persecution, because 2) the Chinese government is likely to

become aware of his membership in the CDP after his return to China.

          C. Due Process Claim.

          Ge asserts that the agency violated due process because the IJ initially made an oral ruling

granting withholding of removal, but at a later hearing reversed this decision without

explanation. While the IJ’s action is unexplained, we find that, even assuming arguendo that

Ge’s due process claim has some merit, any injury suffered as a result has been cured because Ge

has been afforded the requisite full and fair opportunity to litigate the merits of his withholding


                                                  11
of removal claim before the BIA and this Court. See Yu Sheng Zhang v. U.S. Dep’t of Justice,

362 F.3d 155, 159 (2d Cir. 2004).

         D. Denial of Relief Under CAT.

         Finally, Ge contends that the BIA erred by “completely” failing to consider his claim for

relief under CAT. We see, however, no reason to disturb the BIA’s finding that Ge failed to

make any argument before it regarding CAT relief, and that the claim could therefore be

considered as having been abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir.

2007).



                                          CONCLUSION

         We GRANT the petition for review, VACATE the decision of the BIA denying Ge’s

claims for asylum and withholding of removal, and REMAND the case for further proceedings

consistent with this opinion. The denial of relief under CAT is AFFIRMED.




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