         13-3056
         Jin v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A200 733 629
                              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 23rd day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       CHUNHONG JIN,
14                Petitioner,
15
16                       v.                                     13-3056
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Evan Goldberg, Of Counsel, Law
25                                     Office of Theodore M. Davis, New
26                                     York, New York.
27
28
29
 1   FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
 2                          General; Jennifer L. Lightbody;
 3                          Robbin K. Blaya, Trial Attorney,
 4                          Office of Immigration Litigation,
 5                          United States Department of Justice,
 6                          Washington, D.C.
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is GRANTED.

12       Chunhong Jin, a native and citizen of the People’s

13   Republic of China, seeks review of a July 29, 2013, decision

14   of the BIA affirming the May 4, 2012, decision of

15   Immigration Judge (“IJ”) Alan A. Vomacka, denying her

16   asylum, withholding of removal, and relief under the

17   Convention Against Torture (“CAT”).   In re Chunhong Jin, No.

18   A200 733 629 (B.I.A. July 29, 2013), aff’g No. A200 733 629

19   (Immig. Ct. N.Y. City May 4, 2012).   We assume the parties’

20   familiarity with the underlying facts and procedural history

21   in this case.

22       Under the circumstances of this case, we have reviewed

23   the IJ’s decision as modified by the BIA, i.e., minus the

24   basis for denying relief that the BIA expressly declined to

25   consider (the IJ’s adverse credibility determination).   See

26   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

                                  2
 1   (2d Cir. 2005); see also Yan Chen, 417 F.3d 268, 271 (2d

 2   Cir. 2005).   The applicable standards of review are well

 3   established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

 4   Holder, 562 F.3d 510, 513 (2d Cir. 2009).   The only issue

 5   before us is the agency’s denial of withholding of removal

 6   based on its determination that Jin failed to demonstrate a

 7   nexus between the harm she suffered and feared and a

 8   protected ground.

 9       In Jin Jin Long v. Holder, 620 F.3d 162 (2d Cir. 2010),

10   we remanded to the BIA for further consideration of the

11   petitioner’s claim that he was persecuted on account of his

12   political opinion when he was arrested, detained, and beaten

13   for providing assistance to North Korean refugees who had

14   illegally entered China.*   In doing so, we noted that the

15   Chinese government’s arrests of individuals suspected of

16   aiding North Korean refugees “can be seen as enforcement of

17   the law (assuming there is a law prohibiting assistance to

18   North Korean refugees), but it [might] also suggest an


         *
            In Jin Jin Long, we denied a second petition raising
     a similar claim because that petitioner did not argue that
     officials imputed a political opinion to him and because the
     record did not support an inference that the petitioner (who
     was neither arrested nor harmed) acted from a political
     motive or that government officials were investigating him
     as an attempt at suppression. 620 F.3d at 168.
                                   3
 1   active resistance to China’s North Korean immigration

 2   policies, and an attempt at suppression.”        Id. at 167.

 3   Although the petitioner “testified that his conduct was

 4   humanitarian or charitable, and did not cast his motives as

 5   political,” we found that “the BIA failed to consider a

 6   number of facts that may support an inference that his

 7   arrest and detention were pretextual.”     Id.     Specifically,

 8   the petitioner had testified credibly that: (1) he was never

 9   formally charged or brought before a judge; (2) he was

10   “subjected to prolonged detention and repeated physical

11   abuse”; and (3) “U.S. State Department country reports on

12   China suggest[ed] that the North Korean refugee issue is

13   politically charged.”    Id.   Therefore, we remanded for the

14   BIA to determine “whether there is a law barring assistance

15   to North Koreans, and (whether there is or not) in what

16   circumstances persecution of those who assist North Korean

17   refugees would constitute persecution on account of a

18   protected ground.”    Id. at 164; see also id. at 167-68.

19       We find that remand is warranted for similar reasons in

20   the present case.    The BIA attempted to distinguish Jin’s

21   case from Jin Jin Long because the IJ focused on Jin’s

22   admission that she had given her North Korean cousin money


                                     4
 1   to enter China in violation of immigration laws.    However,

 2   the record does not support the IJ’s assumption that Jin was

 3   charged and punished for violating a generally applicable

 4   anti-smuggling law.   In addition, as in Jin Jin Long, the

 5   agency simply ignored evidence that the Chinese government

 6   did not formally charge Jin with any crime and that police

 7   subjected her to a lengthy detention and repeated physical

 8   abuse, from which one could infer that her arrest and

 9   detention were pretextual.    See Jin Jin Long, 620 F.3d at

10   167-68.

11       Accordingly, because the agency assumed, without

12   support, that Jin was legitimately prosecuted for smuggling,

13   and ignored evidence that supported the inference that her

14   detention was a pretext for persecution on account of an

15   imputed political opinion, remand is appropriate.    See id.

16       For the foregoing reasons, the petition for review is

17   GRANTED, and the case is REMANDED for further proceedings

18   consistent with this order.

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22
23




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