         07-3336-ag
         Guo v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                                A98 596 714
                              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 Daniel Patrick                 Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                 City of
 4       New York, on the 18 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                PETER W. HALL,
10                              Circuit Judges.
11       _______________________________________
12
13       CUI YUE GUO,
14                Petitioner,
15
16                           v.                                 07-3336-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., ATTORNEY GENERAL, 1
19                Respondent.
20       _______________________________________
21
22       FOR PETITIONER:                Yee Ling Poon, New York, New York.
23




                         1
                     Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
             General Eric H. Holder, Jr. is automatically substituted for former
             Attorney General Michael B. Mukasey as the Respondent in this case.
1    FOR RESPONDENT:           Gregory G. Katsas, Assistant
2                              Attorney General; Anh-Thu P. Mai-
3                              Windle, Senior Litigation Counsel;
4                              Ann M. Welhaf, Attorney, Office of
5                              Immigration Litigation, United
6                              States Department of Justice,
7                              Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

10   Board of Immigration Appeals (BIA) decision, it is hereby

11   ORDERED, ADJUDGED, AND DECREED that the petition for review

12   is GRANTED, the BIA’s order is VACATED, and the case is

13   REMANDED to the BIA for further proceedings consistent with

14   this order.

15       Cui Yue Guo, a native and citizen of the People’s

16   Republic of China, seeks review of a July 9, 2007 order of

17   the BIA, affirming the December 6, 2005 decision of

18   Immigration Judge (IJ) Barbara Nelson, which denied

19   Petitioner’s application for asylum, withholding of removal,

20   and relief under the Convention Against Torture (CAT).        In

21   re Cui Yue Guo, No. A98 596 714 (B.I.A. Jul. 9, 2007), aff’g

22   No. A98 596 714 (Immig. Ct. N.Y. City Dec. 6, 2005).     We

23   assume the parties’ familiarity with this case’s facts and

24   its procedural history.

25       When the BIA does not expressly “adopt” the IJ’s

26   decision, but its brief opinion closely tracks the IJ’s

27   reasoning, the Court may consider both the IJ’s and the

                                     2
1    BIA’s opinions for the sake of completeness.         See Zaman v.

2    Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).         We review the

3    Agency’s factual findings under the substantial evidence

4    standard.    8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS,

5    494 F.3d 281, 289 (2d Cir. 2007). 2       We review de novo

6    questions of law and the application of law to undisputed

7    fact.   See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

8        We conclude that the Agency erred on numerous grounds.

9    First, the Agency made both legal and factual errors in its

10   finding that Petitioner has not suffered past persecution.

11   Petitioner testified to being beaten on two occasions, once

12   in 2000, when she was fourteen years old, and a second time

13   in 2003.    Hr’g Tr. at 17, 20.       She was detained on both

14   occasions, for 8 and 12 hours respectively.         Id.    Under our

15   precedents, these abuses amount to persecution.           See

16   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d

17   Cir. 2006) (stating that “violent conduct generally goes

18   beyond the mere annoyance and distress that characterize

19   harassment”); Beskovic v. Gonzales, 467 F.3d 223, 226 (2d



             2
              The asylum application in this case is governed by the
       amendments made to the Immigration and Nationality Act by the REAL
       ID Act of 2005. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.
       Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

                                       3
1    Cir. 2006) (“[A] ‘minor beating’ or, for that matter, any

2    physical degradation designed to cause pain, humiliation, or

3    other suffering, may rise to the level of persecution if it

4    occurred in the context of an arrest or detention on the

5    basis of a protected ground.”); see also Gjolaj v. Bureau of

6    Citizenship and Immigration Services, 468 F.3d 140, 143 (2d

7    Cir. 2006) (reversing Agency finding because it did not

8    consider cumulatively the petitioner’s several beatings).

9        The Agency’s legal error is compounded by its factual

10   errors.     Both the IJ and the BIA, in different ways,

11   misstated the record.     Although the IJ briefly noted the two

12   beatings in her recitation of Petitioner’s testimony, IJ

13   Dec. at 3, in her analysis, she referred exclusively to the

14   2000 beating.     Id. at 10.   The BIA attempted to correct this

15   error in its affirmance of the IJ’s decision, but in doing

16   so, erred itself by stating that in the 2003 beating,

17   Petitioner “did not testify that she was injured.”        BIA Dec.

18   at 2.     That is incorrect.   When the IJ asked Petitioner

19   whether she was injured in the 2003 beating, she responded,

20   “Yes.”     She then elaborated, stating that she was beaten by

21   the officials’ “fists and feet,” which left “very, various




                                      4
1    bruises and contusions all over [her] body.”   Hr’g Tr. at

2    20.   The IJ asked no further questions about her injuries.

3          Neither the IJ nor the BIA, expressly or impliedly,

4    found Petitioner’s testimony regarding her past abuses not

5    credible.   Because Petitioner’s beatings constitute past

6    persecution, she is entitled to a presumption of future

7    persecution.

8          Second, regarding Petitioner’s claim of future

9    persecution, we find that the IJ improperly dismissed some

10   of Petitioner’s corroborating evidence.   For example, as the

11   BIA noted, “the Immigration Judge may have gone too far in

12   discounting the mother’s letter based on omissions of some

13   aspects of the respondents’s claim.”   BIA Dec. at 2.

14   Moreover, Petitioner gave plausible explanations for why she

15   was unable to produce other corroborating evidence.     We find

16   it eminently plausible that people who, like Petitioner,

17   practice Falun Gong in the park, were afraid to testify on

18   Petitioner’s behalf where those people (1) may barely know

19   Petitioner, (2) practically speak a different language from

20   Petitioner, (3) are immigrants, and (4) were told that, if

21   they were to testify for Petitioner, they would have to

22   appear in person.


                                   5
1        For all these reasons, we GRANT the petition for

2    review, VACATE the BIA’s decision, and REMAND to the BIA for

 3   further proceedings consistent with this order.
 4
 5
 6                              FOR THE COURT:
 7                              Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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