09-4356-ag
Chen v. Holder
                                                                                BIA
                                                                         Schoppert, IJ
                                                                        A094 787 498
                      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 “SUMMARY 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1 st day of June, two thousand ten.

PRESENT:
         JON O. NEWMAN,
         ROBERT A. KATZMANN,
         DEBRA ANN LIVINGSTON,
                  Circuit Judges.
___________________________________

MING DONG CHEN,
         Petitioner,

                 v.                                                09-4356-ag
                                                                          NAC
ERIC H. HOLDER, Jr., U.S. ATTORNEY
GENERAL,
         Respondent.
___________________________________

FOR PETITIONER:                Sheema Chaudhry, New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General,
                               Stephen J. Flynn, Assistant Director,
                               Imran R. Zaidi, Trial Attorney, Office
                               of   Immigration   Litigation,   Civil
                               Division, United States Department of
                               Justice, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is GRANTED, and the case is REMANDED.

     Petitioner Ming Dong Chen, a native and citizen of the

People’s Republic of China, seeks review of a September 30,

2009, order of the BIA affirming the January 2, 2008, decision

of Immigration Judge (“IJ”) Douglas B. Schoppert, denying his

application for asylum, withholding of removal, and relief

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

Chen, No. A094 787 498 (B.I.A. Sept. 30, 2009), aff’g No. A094

787 498 (Immig. Ct. N.Y. City Jan. 2, 2008).       We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

     Under the circumstances of this case, we review both the

BIA’s and IJ’s decisions.    See Yun-Zui Guan v. Gonzales, 432

F.3d 391, 394 (2d Cir. 2005).        The applicable standards of

review are well-established.     See 8 U.S.C. § 1252(b)(4)(B);

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

A.   Family Planning Claim

     Chen does not challenge the agency’s finding that he

failed to demonstrate a well-founded fear of persecution based


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on any “other resistance” to China’s family planning policy.

With regard to Chen’s economic persecution claim, the agency

did    not    err    in    finding     that      he   failed    to    establish      his

eligibility         for    relief.      We     have     held   that    to   present    a

cognizable claim of economic persecution, “an asylum applicant

must    offer       some       proof   that      [he]    suffered      a    deliberate

imposition of substantial economic disadvantage.”                            Guan Shan

Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 69-70 (2d Cir.

2002).       Here, Chen did not provide any evidence that would

support a finding that the economic difficulties he faced were

“above and beyond those generally shared by others in the

country of origin and involve noticeably more than mere loss

of social advantages or physical comforts.”                      See Matter of T-

Z-, 24 I. & N. Dec. 163, 170-73 (BIA 2007).

B.     Falun Gong Claim

       With    regard       to    Chen’s      claim     that   he     suffered    past

persecution because he practiced Falun Gong, the IJ’s adverse

credibility         determination       is    significantly          flawed.   The    IJ

relied   on     what      he    believed      were    two   inconsistencies,         one

between petitioner’s testimony and his asylum application, and

another between his testimony on direct and cross examination.

As to the first inconsistency, the IJ reported                              that Chen


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testified, with reference to the second time when he was taken

to a police station in June 2005, “that he was ‘brutally

beaten,’   .   .   .   .”   IJ   Oral   Decision   at   7.         In   Chen’s

application for asylum, the IJ further reported, Chen “did not

indicate that he was ever brutally beaten by the police.” Id.

In   dismissing    Chen’s    administrative    appeal,       the    BIA   also

asserted that Chen’s asylum application made no mention of a

beating. BIA Decision at 2        In fact, Chen’s asylum application

clearly states, “The police beat me . . . .”

      Resisting Chen’s petition to this Court, the Government

states, “While Chen briefly mentioned that the police beat him

on this occasion in his asylum application, he did not provide

any details . . . .” Brief for Respondent at 21.                   This bold

attempt to gloss over the glaring flaw in the IJ’s decision is

unavailing.    The IJ simply overlooked Chen’s allegation in his

asylum application that he had been beaten while in police

custody.   Since this was one of the two inconsistencies that

the IJ relied on to find Chen not credible, that finding is

significantly undermined.          See Cao He Lin v. U.S. Dep’t of

Justice, 428 F.3d 391, 406 (2d Cir. 2005) (“The court will

vacate and remand for new findings if the BIA’s reasoning or

the fact-finding process was sufficiently flawed.").


                                    -4-
    The IJ states that the second inconsistency “relates to

[Chen’s]   testimony   regarding   when   he   initially   began

practicing Falun Gong, which, according to his testimony today

and the [asylum application] statement was in January 1999.”

IJ Oral Decision at 5.    The IJ further reported that Chen

testified on direct examination that the practice of Falun

Gong was illegal when he began practicing in January 1999, but

that the Falun Gong was declared illegal in July 1999. See id.

    The IJ appears to have assumed that Chen was linking his

start of practicing Falun Gong to the month when the Falun

Gung was declared illegal, thereby creating an inconsistency

between a starting month of January and July.      However, Chen

consistently testified that he began practicing Falun Gong in

January.   His inconsistency arose from providing different

months when the Falun Gong was declared illegal.    Whether this

inconsistency alone would have led the IJ to find that Chen

lacked credibility, and, if so, whether such a finding would

have been supportable, are matters best left for consideration

after a remand for reconsideration in light of this opinion.

We cannot be confident that the second inconsistency alone

would have led to the same credibility finding. See Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.


                             -5-
2006) (“This Court should remand the proceedings because it

cannot be confidently predicted that the agency would make the

same decision absent the identified errors.").

    For the foregoing reasons, the petition for review is

GRANTED, and the matter is REMANDED.   As we have completed our

review, any stay of removal that the Court previously granted

in this petition is VACATED as moot, and any pending motion

for a stay of removal in this petition is DISMISSED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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