    11-3158-ag
    Jiang v. Holder
                                                                                  BIA
                                                                              Chew, IJ
                                                                          A089 254 321
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 11th day of July, two thousand twelve.

    PRESENT:
             ROBERT D. SACK,
             GERARD E. LYNCH,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _______________________________________

    ZONGXUN JIANG,
             Petitioner,

                      v.                                   11-3158-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Gang Zhou, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Susan K. Houser, Senior
                                  Litigation Counsel; John J.W.
                                  Inkeles, Trial Attorney, 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.

       Zongxun Jiang, a native and citizen of the People’s

Republic of China, seeks review of a July 8, 2011, order of

the BIA affirming the September 2, 2009, decision of

Immigration Judge (“IJ”) George T. Chew, which denied his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).      In re Zongxun

Jiang, No. A089 254 321 (B.I.A. July 8, 2011), aff’g No.

A089 254 321 (Immig. Ct. N.Y. City Sept. 2, 2009).      We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

       Because the BIA largely adopted the IJ’s decision, we

have reviewed the decision of the IJ as supplemented by the

BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

2005).    We review the Board’s factual findings, including

credibility determinations, for substantial evidence,

treating them as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B); see also Shi Jie Ge v. Holder, 588

F.3d 90, 93-94 (2d Cir. 2009).      However, this Court will

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vacate and remand for new findings if the agency’s reasoning

or its fact-finding process was sufficiently flawed.     See

Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d

Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d

Cir. 2004).     We review de novo questions of law and the

application of law to undisputed fact.     See, e.g., Bah v.

Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

    Because the agency found that Jiang demonstrated past

persecution, he benefits from the presumption of a well-

founded fear of future persecution.     See 8 C.F.R.

§§ 1208.13(b)(1), 1208.16(b)(1)(i); see also Baba v. Holder,

569 F.3d 79, 86 (2d Cir. 2009); Li Hua Lin v. U.S. Dep’t of

Justice, 453 F.3d 99, 105 (2d Cir. 2006).     However, an IJ

must still deny asylum to an applicant who establishes

eligibility based solely on past persecution when the

government establishes a fundamental change in circumstances

sufficient to rebut the presumption of well-founded fear.      8

C.F.R. § 1208.13(b)(1).

    Here, the agency abused its discretion by failing to

give Jiang the full benefit of the presumption to which he

was entitled.     See Kone v. Holder, 596 F.3d 141, 150 (2d

Cir. 2010); see also Abu Hasirah v. Dep't of Homeland Sec.,


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478 F.3d 474, 476-77 (2d Cir. 2007) (per curiam) (the agency

abuses its discretion when it misapplies the governing law).

The agency found that the government overcame the

presumption of Jiang’s future persecution based solely on

his testimony that he lived and worked in China for 20 years

after his persecution and that he was unsure whether the

song for which he was originally persecuted for singing

publicly is currently banned in China.   The agency explained

that Jiang does not have a well-founded fear of future

persecution because he failed to indicate that the

authorities in China are still looking for him.     However, by

relying on Jiang’s failure to show that Chinese authorities

are still looking for him, the agency misapplied the

presumption of future persecution because it placed the

burden on Jiang to show that he would be persecuted in the

future rather than holding the government to its evidentiary

burden of showing that Jiang would not be persecuted in the

future. See Kone, 596 F.3d at 150.

    Moreover, Jiang’s testimony that he remained in

Shanghai for 20 years after he was persecuted is, standing

alone, insufficient to satisfy the government’s burden,

particularly given Jiang’s testimony that he was under


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probationary supervision during that time.   Cf. Kone, 596

F.3d at 150 (“The government cannot satisfy its burden to

demonstrate that Kone will not be threatened simply by

showing that she enjoyed periods with no new persecution

....”).   Likewise, Jiang’s testimony regarding his

uncertainty about current Chinese government policy toward a

particular “anti-patriotic” song is insufficient to

establish a fundamental change of conditions.   See Islami v.

Gonzales, 412 F.3d 391, 397-98 (2d Cir. 2005) (government’s

burden to show changed circumstances met by providing

“copious evidence that the nationalistic Serb domination of

Kosovo has ended”), overruled in part on other grounds by

Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305

(2d Cir. 2007); Passi v. Mukasey, 535 F.3d 98, 102 (2d Cir.

2008).

    Finally, the agency also abused its discretion by

failing to consider Jiang’s eligibility for humanitarian

asylum under the second prong of the regulatory framework.

See Matter of L-S-, 25 I&N Dec. 705, 715 (BIA 2012) (“If the

Immigration Judge finds that the respondent did not

demonstrate ‘compelling reasons’ for granting asylum based

on the severity of his past persecution, he should also

determine whether the respondent has established a
                              5
‘reasonable possibility’ that he will suffer ‘other serious

harm’ under 8 C.F.R. § 1208.13(b)(1)(iii)(B).”).    Here, the

agency considered and rejected Jiang’s application for

humanitarian asylum solely on the basis that his past

persecution was insufficiently severe without considering

whether he had established a reasonable possibility of other

serious harm in China.     See 8 C.F.R.

§ 1208.13(b)(1)(iii)(B).    As with the agency’s error

regarding the presumption of future persecution, the

agency’s error regarding humanitarian asylum requires remand

because we cannot predict with confidence that the agency

would reach the same result on remand absent its errors.

Kone, 596 F.3d at 143.

    For the foregoing reasons, the petition for review is

GRANTED and the case is REMANDED to the agency for further

proceedings consistent with this opinion.    As we have

completed our review, the pending motion to take judicial

notice is DISMISSED as moot.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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