     17-4101
     Chen v. Barr
                                                                          BIA
                                                                   Bukszpan, IJ
                                                                  A200 731 788

                         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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 16th day of July, two thousand twenty.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DEBRA ANN LIVINGSTON,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   WEN KAI CHEN,
14
15                  Petitioner,
16
17                  v.                                  17-4101
18                                                      NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                Nataliya I. Gavlin, New York, NY.
26
27   FOR RESPONDENT:                Joseph H. Hunt, Assistant Attorney
28                                  General; Derek C. Julius,
 1                                 Assistant Director; Anthony O.
 2                                 Pottinger, Trial Attorney, Office
 3                                 of Immigration Litigation, United
 4                                 States Department of Justice,
 5                                 Washington, DC.

 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is GRANTED.

10       Petitioner Wen Kai Chen, a native and citizen of the

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

12   2017 decision of the BIA affirming a March 15, 2017 decision

13   of an Immigration Judge (“IJ”) denying Chen’s application for

14   asylum,    withholding   of   removal,   and   relief   under   the

15   Convention Against Torture (“CAT”).      In re Wen Kai Chen, No.

16   A 200 731 788 (B.I.A. Dec. 8, 2017), aff’g No. A 200 731 788

17   (Immig. Ct. N.Y. City Mar. 15, 2017).     We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       We have reviewed the IJ’s decision as supplemented by

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

22   Cir. 2005).   We review factual findings under the substantial

23   evidence standard and questions of law and the application of

24   law to undisputed facts de novo.     See 8 U.S.C. § 1252(b)(4);
                                  2
 1   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 2          In order to establish his eligibility for asylum, Chen

 3   had to show that he (1) engaged in “other resistance” to

 4   China’s family planning policy and (2) suffered harm rising

 5   to the level of persecution or had a well-founded fear of

 6   suffering such harm as a direct result of that resistance.

 7   See 8 U.S.C. § 1101(a)(42); Shi Liang Lin v. U.S. Dep’t of

 8   Justice, 494 F.3d 296, 313 (2d Cir. 2007) (en banc).                     We

 9   address both elements in turn.

10   Other Resistance

11          “[T]he phrase ‘other resistance’ is ambiguous and leaves

12   room    for   the   BIA’s   reasonable    interpretation        where   the

13   applicant     relies   on   something     beyond      his    spouse’s   or

14   partner’s     persecution.”     Lin,     494   F.3d   at     312.    Under

15   Chevron, we defer to the agency’s reasonable interpretation

16   of ambiguous provisions of the Immigration and Nationality

17   Act.    See id. at 304; Chevron U.S.A. Inc. v. Nat. Res. Def.

18   Council, Inc., 467 U.S. 837, 842–43 (1984).                 The agency has

19   previously held that “other resistance” to the policy “can

20   ‘cover[] a wide range of circumstances, including expressions

21   of general opposition, attempts to interfere with enforcement


                                        3
 1   of government policy in particular cases, and other overt

 2   forms of resistance to the requirements of the family planning

 3   law.’”      Lin, 494 F.3d at 313 (quoting Matter of S-L-L-, 24

 4   I. & N. Dec. 1, 10 (B.I.A. 2006)).

 5         Here, the BIA did not independently address whether

 6   Chen’s actions amounted to “other resistance.”                  The IJ, whose

 7   decision was adopted by the BIA, ruled that Chen had not

 8   engaged in “other resistance” to the family planning policy

 9   because     the   most    significant       resistance     in     the   record

10   (unauthorized removal of an IUD) was attributable only to

11   Chen’s wife, and Chen had engaged in “one outburst in the

12   heat of the moment” directed to family planning officials,

13   without “decry[ing] the policy more widely” or “mak[ing] any

14   other attempt to undermine the policy.”              But the IJ did not

15   explain why a single outburst, or one made only “in the heat

16   of the moment” and directed only to the officials carrying

17   out   the   policy,      could   not   constitute    an “overt form        of

18   resistance” to the family planning policy.                 Moreover, even

19   if    the   IJ    had    provided      a   more   thorough      explanation,

20   “interpretations         by   individual     IJs,   even     if     summarily

21   affirmed by the BIA, are not sufficient to constitute the


                                            4
 1   agency’s        interpretation,”        and    are   not    accorded      Chevron

 2   deference.        Ucelo-Gomez v. Gonzales, 464 F.3d 163, 170 (2d

 3   Cir. 2006).

 4         By telling the officers that he believed that the policy

 5   was “inhuman” and “killed an innocent life,” Chen made an

 6   overt, public expression of his opposition to the policy.

 7   Although we have found that some altercations with family

 8   planning officials do not constitute “other resistance” to

 9   the   family       planning       policy,      we    have     done   so    under

10   circumstances        where      the    applicant     did    not   express     any

11   opposition to the policy.              See Chun Bo Dong v. Clement, 247

12   F. App’x 255, 257 (2d Cir. 2007) (altercation with family

13   planning officials who seized the applicant’s cousin did not

14   constitute “other resistance” where applicant did not express

15   any opposition to the family planning policy to the officials,

16   did not indicate that the officials imputed such opposition

17   to him, and testified that he would have acted in the same

18   manner     if    officials      had    sought    his    cousin    for     reasons

19   unrelated to the policy); see also Mu Ren Zheng v. Holder,

20   467   F.   App’x     73,   74    (2d    Cir.    2012)   (applicant      had   not

21   demonstrated       persecution         based   on    “other   resistance”     to


                                              5
 1   family planning policy where he argued with the officials,

 2   but   “testified         repeatedly      that   the    officials       would     have

 3   arrested      him     even   if     he    had   not      argued    with       them”).

 4   Accordingly,        we   remand to       permit    the    BIA     to   more    fully

 5   interpret      the       boundaries       of    what      constitutes         “other

 6   resistance.”         See Chevron, 467 U.S. at 842–43; Lin, 494 F.3d

 7   at    304,   312;     see    also    Ucelo-Gomez,        464    F.3d     at   169–72

 8   (remanding to the BIA so that it might clarify the scope of

 9   its own precedent).

10   Persecution

11         “[P]ersecution         is     an   extreme   concept        that    does    not

12   include      every    sort    of    treatment      our    society      regards    as

13   offensive.”     Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir.

14   2011) (internal quotation marks and citation omitted).                              A

15   valid claim of past persecution may “encompass[] a variety of

16   forms of adverse treatment, including non-life-threatening

17   violence and physical abuse,” but the harm must be more severe

18   than “mere harassment.”             Ivanishvili v. U.S. Dep’t of Justice,

19   433 F.3d 332, 340–41 (2d Cir. 2006) (internal quotation marks

20   and brackets omitted).             “‘[T]he difference between harassment

21   and persecution is necessarily one of degree,’” which “must


                                               6
 1   be   assessed   with   regard   to   the   context   in   which   the

 2   mistreatment occurs.”     Beskovic v. Gonzales, 467 F.3d 223,

 3   226 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at 341).

 4   “The BIA must, therefore, be keenly sensitive to the fact

 5   that a ‘minor beating’ or, for that matter, any physical

 6   degradation designed to cause pain, humiliation, or other

 7   suffering, may rise to the level of persecution if it occurred

 8   in the context of an arrest or detention on the basis of a

 9   protected ground.”     Id.; see also Ivanishvili, 433 F.3d at

10   342 (holding that evidence that an applicant has suffered

11   “physical abuse and violence . . . may preclude a finding

12   that the conduct is mere harassment that does not as a matter

13   of law rise to the level of persecution, for violent conduct

14   generally goes beyond the mere annoyance and distress that

15   characterize harassment” (internal citation omitted)).            But

16   see Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d Cir. 2011)

17   (“We have never held that a beating that occurs within the

18   context of an arrest or detention constitutes persecution per

19   se.”).

20        The IJ reasoned that the beatings Chen experienced did

21   not constitute persecution because they caused only bruises,


                                      7
 1   which were treated only with ointment, and Chen did not suffer

 2   any   “serious     or    lasting    physical   or   emotional   pain   or

 3   suffering.”    The BIA agreed, explaining that Chen’s injuries

 4   were less severe than those suffered by the applicant in

 5   Beskovic, who was also beaten twice during detention.               This

 6   reasoning is flawed.        First, we have cautioned that lasting

 7   injuries     are    not    required       to   establish   persecution,

 8   particularly in the context of beatings occurring during

 9   detention.    See Edimo-Doualla v. Gonzales, 464 F.3d 276, 283

10   (2d Cir. 2006) (applicant is not required to demonstrate

11   “permanent or serious injury” to establish persecution); see

12   also Beskovic, 467 F.3d at 226.            Second, we did not purport

13   to set a floor for the harm that might constitute persecution

14   in Beskovic — to the contrary, we held that “any physical

15   degradation designed to cause pain, humiliation, or other

16   suffering”    in   the    context    of   detention   might   constitute

17   persecution and remanded for the agency to reconsider whether

18   the beatings in detention constituted persecution.              467 F.3d

19   at 226.    Accordingly, the agency erred in concluding that

20   Chen’s beatings did not constitute persecution simply because

21   they did not result in serious or lasting injuries and were


                                          8
 1   less severe than the beatings at issue in Beskovic.         We

 2   therefore remand to permit the agency to reconsider its

 3   decision with respect to whether Chen demonstrated that he

 4   had suffered persecution on account of “other resistance” to

 5   the family planning policy.    See Edimo-Doualla, 464 F.3d at

 6   284.1

 7       For the foregoing reasons, the petition for review is

 8   GRANTED.   All pending motions and applications are DENIED and

 9   stays VACATED.

10                                 FOR THE COURT:
11                                 Catherine O’Hagan Wolfe,
12                                 Clerk of Court
13




     1We also remand with respect to Chen’s claim for CAT relief
     because the IJ relied on Chen’s failure to satisfy his burden
     for asylum to deny all forms of relief.
                                   9
