14-4442-ag
Li v. Sessions


                      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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 15th day of February, two thousand seventeen.

PRESENT: BARRINGTON D. PARKER,
         REENA RAGGI,
         CHRISTOPHER F. DRONEY,
                             Circuit Judges.

DIANHUA LI,
                                                Petitioner,

                 v.                                                  No. 14-4442-ag

JEFF SESSIONS, UNITED STATES ATTORNEY
GENERAL,
                             Respondent.*


APPEARING FOR PETITIONER:                GALAB B. DHUNGANA, Esq., New York,
                                         New York.




* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff
Sessions is automatically substituted for former Attorney General Loretta E. Lynch as
Respondent.
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APPEARING FOR RESPONDENT:                 ROBERT MICHAEL STALZER, Trial
                                          Attorney for Benjamin C. Mizer, Principal
                                          Deputy Assistant Attorney General (Julie M.
                                          Iversen, Senior Litigation Counsel, on the
                                          brief), Office of Immigration Litigation, United
                                          States Department of Justice, Washington, D.C.
.

       UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is GRANTED, the BIA order entered on

November 4, 2014, is VACATED, and the matter is REMANDED for further

proceedings.

       Petitioner Dianhua Li, a native and citizen of the People’s Republic of China,

seeks review of the BIA’s affirmance of an Immigration Judge’s (“IJ’s”) denial of

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). See In re Dianhua Li, No. A200 740 425 (B.I.A. Nov. 4, 2014), aff’g No.

A200 740 425 (Immig. Ct. N.Y.C. Jan. 31, 2013). Under the circumstances of this case,

we review both the IJ’s and BIA’s decisions “for the sake of completeness,” Wangchuck

v. U.S. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying well

established standards of review, see 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,

562 F.3d 510, 513 (2d Cir. 2009). In so doing, we assume the parties’ familiarity with

the underlying facts and procedural history of this case, which we reference only as

necessary to explain our decision to grant the petition, vacate, and remand.

       Li seeks review of the agency’s decision that he failed to demonstrate past

persecution. To make such a showing, Li could not rely solely on his wife’s alleged

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forced abortion. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309–10 (2d

Cir. 2007).   Rather, Li had to demonstrate that he himself (1) engaged in “other

resistance” to China’s coercive family planning policy and (2) thereby suffered harm

rising to the level of persecution. See 8 U.S.C. § 1101(a)(42); Shi Liang Lin v. U.S. Dep’t

of Justice, 494 F.3d at 313. Li asserts that he carried this burden by testifying that he was

arrested and beaten by police when he tried to prevent his wife from being taken for an

abortion.

       Although we have “never held that a beating that occurs within the context of an

arrest or detention constitutes persecution per se,” Jian Qiu Liu v. Holder, 632 F.3d 820,

822 (2d Cir. 2011), “[w]here, as here, a petitioner was arrested and detained on account

of some protected ground and is subjected to physical abuse, mistreatment, or

degradation at the hands of arresting officials, the BIA and individual IJs must be

sensitive to the obvious reality that such detention and physical mistreatment are usually

correlative, not coincidental,” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).

Even “a minor beating or, for that matter, any physical degradation designed to cause

pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in

the context of an arrest or detention on the basis of a protected ground.” Id. (internal

quotation marks omitted).

       It is not apparent from the record that the agency considered Li’s beating—which

resulted in muscle contusions and swelling requiring two weeks’ rest—in light of our

holding in Beskovic. See id. (noting that mere mistreatment “can take on an entirely

different character when officially inflicted on an individual while detained on account of

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protected grounds”). Rather, the BIA denied relief based on two cases that are factually

distinguishable. Specifically, in Jian Qiu Liu v. Holder, there was “no evidence that the

family planning officials who physically attacked” the petitioner when taking his wife for

a forced abortion “had any intention of arresting or detaining him,” 632 F.3d at 822; nor

was there any indication that the petitioner was beaten while detained, id. As for Ai Feng

Yuan v. U.S. Dep’t of Justice, 416 F.3d 192 (2d Cir. 2005), Beskovic dismissed as dictum

its statement that “‘minor beatings and brief detention . . . do not amount to political

persecution’” because the petitioner in Ai Feng Yuan was not beaten while detained.

Beskovic v. Gonzales, 467 F.3d at 226 n.3 (quoting Ai Feng Yuan v. U.S. Dep’t of Justice,

416 F.3d at 198).

       Accordingly, we remand this case so that the agency can consider Li’s petition for

relief in light of Beskovic. In so doing, we express no view regarding the appropriate

disposition.

       For the foregoing reasons, the petition for review is GRANTED, the BIA order is

VACATED, and the matter is REMANDED for further proceedings consistent with this

order. Because we vacate the BIA’s order, Li’s pending motion to stay the order of

removal is DENIED as moot.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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