         11-3220-ag                                                                    BIA
         Zheng v. Holder                                                            Hom, IJ
                                                                               A089 253 162
                            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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       MEI QIN ZHENG,
14                Petitioner,
15
16                         v.                                   11-3220-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Gang Zhou, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Douglas E. Ginsburg,
27                                     Assistant Director; Matthew B.
28                                     George, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1            UPON DUE CONSIDERATION of this petition for review

 2   of a Board of Immigration Appeals ("BIA") decision, it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the decision of

 4   the BIA denying Zheng's claims for asylum and withholding of

 5   removal is VACATED and the case is REMANDED for further

 6   proceedings.

 7            Petitioner Mei Qin Zheng, a native and citizen of

 8   the People’s Republic of China, seeks review of a July 11,

 9   2011, order of the BIA affirming the June 9, 2009, decision

10   of Immigration Judge ("IJ") Sandy Hom, which pretermitted

11   Zheng's application for asylum and denied her application

12   for withholding of removal and relief under the Convention

13   Against Torture ("CAT").    In re Mei Qin Zheng, No. A089 253

14   162 (B.I.A. July 11, 2011), aff'g No. A089 253 162 (N.Y.C.

15   Immig. Ct. June 9, 2009).    We assume the parties'

16   familiarity with the underlying facts and procedural history

17   in this case.

18            Under the circumstances of this case, we have

19   reviewed the decisions of both the IJ and the BIA.     See Ming

20   Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).     The

21   applicable standards of review are well established.     See 8

22   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

23   513 (2d Cir. 2009).

                                    2
 1   I.   Pretermission of Asylum

 2             In general, we do not have jurisdiction to review

 3   the agency's finding that an asylum application was untimely

 4   under § 1158(a)(2)(B) or that circumstances excusing the

 5   untimeliness under § 1158(a)(2)(D) did not exist.      See 8

 6   U.S.C. § 1158(a)(3).    Nonetheless, this Court retains

 7   jurisdiction to review constitutional claims and questions

 8   of law.   Id. § 1252(a)(2)(D).

 9             In pretermitting Zheng's asylum application, the

10   BIA concluded that she did not act within a reasonable time

11   of changed circumstances materially affecting her claim

12   because she filed her application on August 11, 2008, almost

13   eleven months after she became a Chinese Democracy Party

14   ("CDP") member on September 25, 2007.    In reaching that

15   determination, the BIA relied solely on the date Zheng

16   joined the CDP.   "[C]hanged circumstances," however, include

17   changes in "activities the applicant becomes involved in

18   outside the country of feared persecution that place the

19   applicant at risk."    8 C.F.R. § 208.4(a)(4)(i)(B).   Zheng

20   contends that the BIA erred in failing to consider whether

21   later activities -- specifically, the publication of her

22   article in the CDP's "World Journal" on December 13, 2007,


                                      3
 1   or the online publication of her CDP member page and article

 2   on June 4, 2008 -- constituted changed circumstances.

 3            Because the Chinese government could have become

 4   aware of Zheng's CDP membership for the first time in

 5   December 2007 or June 2008, we conclude that the BIA

 6   committed legal error by not considering these later events

 7   in determining whether her asylum application was filed

 8   "within a reasonable period" afterward.   8 C.F.R. §

 9   208.4(a)(4); see Shi Jie Ge v. Holder, 588 F.3d 90, 94-95

10   (2d Cir. 2009) (The BIA's use of the "date of [the

11   applicant's] joining the CDP as the only 'changed

12   circumstance' which might allow him to avail himself of the

13   exception . . . constitutes legal error because it is a

14   misapplication of the plain terms of the regulation.").     The

15   agency erred by failing to consider Zheng's evidence of

16   events taking place after she became a CDP member that could

17   have triggered a change in circumstances subjecting her to

18   persecution if she were to return to China.

19   II. Well-Founded Fear of Future Persecution

20            We also find that the BIA erred with respect to

21   its conclusion that even if Zheng's application were timely,

22   she did not establish that she has a well-founded fear of


                                  4
 1   persecution in China based on her political activities in

 2   the United States.

 3            First, the agency based its determination on

 4   Zheng's purported failure to establish "that her

 5   organization is connected to the 'China Democracy Party'

 6   that is discussed in the State Department Reports and

 7   described as banned in China."     In re Mei Qin Zheng, No.

 8   A089 253 162, at 2 (B.I.A.).     The record shows that Zheng

 9   belonged to a group called the "China Democracy Party

10   Foundation" ("CDP-NY") that is based in New York and was

11   founded by Xie Wanjun, an original founder of the "China

12   Democracy Party" banned in China.     Although the record is

13   unclear as to whether the two organizations are the same,

14   Zheng presented evidence that her organization sprang from

15   the banned group and that Wanjun attempted to recruit new

16   members in China, and hence that the Chinese government

17   would be aware of CDP-NY's activities and members.     The BIA

18   rejected the evidence in a conclusory fashion, In re Mei Qin

19   Zheng, No. A089 253 162, at 2 (B.I.A.), and apparently it

20   did not consider the possibility that even if the two

21   organizations were not the same, Zheng might have a valid

22   political activity asylum claim without being a member of a

23   "banned organization."   Indeed, the State Department Asylum
                                    5
 1   Report in the record describes persecution in China for

 2   political activity and expression of opinion that does not

 3   involve membership in a banned organization.    Zheng seeks

 4   asylum not based on membership in a banned organization, but

 5   for all her political activities in the United States.

 6            Second, in its burden of proof and persuasion

 7   analysis, the BIA seemingly required direct evidence of past

 8   persecution to prove future persecution, when the law

 9   provides that an asylum applicant may "establish a

10   well-founded fear of persecution in the absence of any

11   evidence of past persecution" by "showing that authorities

12   in his country of nationality are either aware of his

13   activities or likely to become aware of his activities."

14   Hongsheng Leng v. Mukasey, 528 F.3d 135, 142-43.     Indeed,

15   the BIA suggested that Zheng was required to present

16   evidence that someone in her particular group in New York

17   had returned to China and been persecuted.     In re Mei Qin

18   Zheng, No. A089 253 162, at 2 (B.I.A.) ("Having considered

19   the respondent's documentary submissions, the respondent has

20   not presented evidence that anyone involved in the 'China

21   Democracy Party USA headquarters' in Flushing, New York, has

22   returned to China and faced problems based on such activity

23   in the United States.").   There are other ways, however, for
                                   6
 1   an applicant to establish a well-founded fear of

 2   persecution.    An asylum applicant who was involved with a

 3   new organization, for example, could prove through

 4   circumstantial evidence that given the nature of her

 5   activities, there is a reasonable likelihood she would be

 6   subjected to persecution if she returned to China.     See

 7   Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005)

 8   (noting asylum applicants may use circumstantial evidence to

 9   prove motive of persecutor arises from applicant's political

10   beliefs).

11               Finally, the BIA found that Zheng did not show

12   that her CDP article had attracted the attention of the

13   Chinese government or that it was likely published in China.

14   In re Mei Qin Zheng, No. A089 253 162, at 2 (B.I.A.).        Zheng

15   presented evidence, however, that she was listed on the "CDP

16   Member's Site" personal web page and that a link to her

17   article appeared on that website.    The record also contains

18   evidence, including the 2008 Annual Report of the

19   Congressional-Executive Commission on China, that the

20   Chinese government monitored the Internet for postings

21   expressing disagreement with the government's views.     See,

22   e.g., Cong.-Exec. Comm'n on China, Annual Report (2008)

23   ("The Chinese government and Communist Party continue to
                                     7
 1   control the Internet through an effective and pervasive

 2   system that relies on government regulation [and is]

 3   motivated by political concerns."); see also U.S. Dep't of

 4   State, China: Profile of Asylum Claims and Country

 5   Conditions (May 2007) ("The Chinese Government sometimes

 6   monitors the political activities of students or exchange

 7   scholars living abroad.    Those who have joined organizations

 8   deemed hostile to China have been advised in the official

 9   media that they should quit them before returning and while

10   abroad refrain from activities that violate Chinese law.").

11   Hence, the record contains some indication that Zheng's

12   article was circulated in China or posted in such a manner

13   that the Chinese authorities could access it.    It is not

14   apparent from the record that the agency considered this

15   evidence.

16                              CONCLUSION

17               For the foregoing reasons, we VACATE the decision

18   of the BIA denying Zheng's claims for asylum and withholding

19   of removal and REMAND the case for further proceedings.      The

20   agency is directed to consider whether: (1) Zheng's

21   political activities, in addition to her initial membership

22   in the CDP, triggered a change in circumstances affecting

23   the timeliness of her asylum application; (2) the CDP
                                     8
 1   headquartered in New York is related to the CDP banned in

 2   China; (3) Zheng's activity in the United States was a basis

 3   for a reasonable fear of future persecution, even assuming

 4   she was not a member of a banned organization or an

 5   organization whose members had been persecuted in the past;

 6   and (4) the Chinese government could have had access to

 7   Zheng's article given its publication via the Internet and

 8   the record evidence of the Chinese government's monitoring

 9   of the Internet.

10                              FOR THE COURT:
11                              Catherine O’Hagan Wolfe, Clerk




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