         10-2533-ag
         Li v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A088 524 507
                         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 3rd day of July, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES
 9                CHESTER J. STRAUB,
10                     Circuit Judges.
11       ______________________________________
12
13       HONG YAN LI,
14                Petitioner,
15
16                                                              10-2533-ag
17                      v.                                      NAC
18
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:               Matthew J. Harris, Long Island City,
26                                     NY.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Jamie M. Dowd, Senior
 1                          Litigation Counsel; Bernard A.
 2                          Joseph, Trial Attorney, Office of
 3                          Immigration Litigation, Civil
 4                          Division, United States Department
 5                          of Justice, Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is GRANTED.

11       Petitioner, Hong Yan Li, a native and citizen of China,

12   seeks review of a May 28, 2010, decision of the BIA

13   affirming the April 8, 2008, decision of Immigration Judge

14   (“IJ”) Sandy Hom denying her application for asylum,

15   withholding of removal, and relief under the Convention

16   Against Torture (“CAT”). In re Hong Yan Li, No. A088 524 507

17   (B.I.A. May 28, 2010), aff’g No. A088 524 507 (Immig. Ct.

18   N.Y. City April 8, 2008).   We assume the parties’

19   familiarity with the underlying facts and procedural history

20   of the case.

21       Under the circumstances of this case, we have reviewed

22   the IJ’s decision minus the arguments for denying relief

23   that were rejected by the BIA.    See Xue Hong Yang v. U.S.

24   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The

25   applicable standards of review are well-established.    See


                                   2
 1   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

 2   510, 513 (2d Cir. 2009).     Because Li does not challenge the

 3   agency’s pretermission of asylum or denial of CAT relief, we

 4   have only considered the agency’s denial of her application

 5   for withholding of removal.

 6       I.   Nexus

 7       The agency erred by failing to properly consider

 8   whether the harm Li suffered after providing assistance to

 9   North Korean refugees was on account of her political

10   opinion or imputed political opinion.     In Jin Jin Long v.

11   Holder, 620 F.3d 162 (2d Cir. 2010), we remanded a petition

12   (Dkt. No. 09-3472-ag) to the BIA for further consideration

13   of the petitioner’s claim that he was persecuted on account

14   of his political opinion when he was arrested, detained, and

15   beaten for providing assistance to North Korean refugees who

16   had illegally entered China.     In doing so, we noted that, in

17   addition to the petitioner’s prolonged detention and

18   physical abuse, he was never formally charged with a crime

19   or brought before a judge.     Jin Jin Long, 620 F.3d at 167.

20   We further noted that although the petitioner’s motivation

21   in providing the assistance was “humanitarian” and

22   “charitable,” rather than overtly political, “a government

23   might construe violation of a law as opposition or

                                     3
 1   resistance to the law’s underlying policy, and punish it

 2   accordingly.”   Id.    We therefore remanded to the BIA to

 3   consider “whether there is a law barring assistance to North

 4   Koreans, and (whether there is or not) in what circumstances

 5   persecution of those who assist North Korean refugees would

 6   constitute persecution on account of a protected ground.”

 7   Id. at 168.

 8       We find that remand is warranted for similar reasons in

 9   the present case.     Here, although Li testified that her

10   conduct was humanitarian, the Chinese government “might

11   construe violation of a law as opposition or resistance to

12   the law’s underlying policy, and punish it accordingly.”

13   Jin Jin Long, 620 F.3d at 162.      Furthermore, the agency

14   “failed to consider a number of facts that may support an

15   inference that [Li’s] arrest and detention were pretextual,”

16   including Li’s testimony, assumed to be credible by the BIA,

17   “that the refugee-smuggling allegations underlying [her]

18   arrest were fabrications,” and that she “was never formally

19   charged or brought before a judge.”      Jin Jin Long, 620 F.3d

20   at 167.   The U.S. State Department profile also states “that

21   the North Korean refugee issue is politically charged” and

22   that the Chinese government arrested and detained Chinese

23   citizens who assisted North Korean refugees.      Jin Jin Long,

                                     4
 1   620 F.3d at 167.     Accordingly, remand is required here for

 2   the BIA to consider “whether there is a law barring

 3   assistance to North Koreans, and (whether there is or not)

 4   in what circumstances persecution of those who assist North

 5   Korean refugees would constitute persecution on account of a

 6   protected ground.”     Id. at 168.

 7       We note that, in Jin Jin Long, we denied the

 8   consolidated petition for review (Dkt. No. 09-3694-ag),

 9   finding that: (1) the petitioner failed to exhaust, and

10   forfeited before this Court, any argument that the Chinese

11   government imputed a political opinion to him; (2) he did

12   not have any encounter with the Chinese authorities; and (3)

13   he was acting out of “family loyalty” by offering aid to his

14   North Korean uncle, aunt, and cousins.     620 F.3d at 168.

15   However, we find Li’s case distinguishable because, although

16   Li and her family provided assistance to her cousin as well

17   as other North Korean refugees, she: (1) claimed that she

18   was persecuted on account of her political and imputed

19   political beliefs; (2) testified that she knew her conduct

20   was illegal before she assisted the refugees; (3) provided

21   assistance to one relative and five non-relatives; and (4)

22   repeatedly indicated a desire to help North Korean refugees

23   generally.   Cf. Jin Jin Long, 620 F.3d at 168.

                                     5
 1       Earlier this year we remanded a similar petition to the

 2   BIA in Xiong Jin v. Holder, No. 10-3543 (2d Cir. Jan. 3,

 3   2012).   As more fully explained in the summary order in that

 4   case, remand is required in this case for similar reasons.

 5       II. Past Persecution

 6       The agency also erred by failing to consider the

 7   context in which Li was physically mistreated in finding

 8   that she did not establish past persecution.   Persecution

 9   includes physical harm that threatens the victim’s “life or

10   freedom,” but non-life-threatening violence and physical

11   abuse may constitute persecution as well.   Tian-Yong Chen v.

12   INS, 359 F.3d 121, 127 (2d Cir. 2004).   This Court has

13   cautioned the BIA to be “keenly sensitive” to the fact that

14   a “minor beating, or for that matter, any physical

15   degradation designed to cause pain, humiliation, or other

16   suffering, may rise to the level of persecution if it

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

18   basis of a protected ground.” Beskovic v. Gonzales, 467 F.3d

19   223, 226 (2d Cir. 2006).   Li testified that she was arrested

20   and held in detention for ten days, interrogated by two

21   police officers regarding why she was providing assistance

22   to North Korean refugees, slapped hard twice by the

23   officers, and punched in the chest with a closed fist in a

                                   6
 1   very heavy manner that caused her to fall to the ground and

 2   injure her arm.

 3       It appears that the IJ and BIA failed to adequately

 4   consider the context, i.e., Li’s 10-day detention, of the

 5   harm she suffered in determining that she failed to

 6   establish past persecution.    See Beskovic, 467 F.3d at 226.

 7   Moreover, although the BIA referenced Li’s detention in

 8   citing a case involving minor beatings and detentions, Li

 9   was detained for 10 days, not 2-3 as in the case the BIA

10   relied on.   In addition, because the agency may have erred

11   in its nexus finding, both the IJ and BIA may also have

12   erred in concluding that the harm Li suffered did not rise

13   to the level of persecution because she “was arrested for a

14   valid prosecutory reason.”    See Beskovic, 467 F.3d at 226-27

15   (holding that “the fact that the conduct underlying an

16   arrest violated a generally applicable law does not

17   automatically preclude finding that the circumstances of the

18   arrest combined with physical mistreatment or degradation

19   constitute past persecution” and providing that “[w]hether

20   the conduct for which a petitioner is arrested implicates a

21   petitioner’s race, religion, nationality, social group

22   membership, or political opinion is critical”).


                                    7
 1   Accordingly, remand is appropriate to allow the agency to

 2   determine whether Li suffered past persecution on account of

 3   a protected ground and in turn whether she was entitled to a

 4   presumption that she faced a future threat to her life or

 5   freedom.   See 8 C.F.R. § 1208.16(b)(1); see also Jin Jin

 6   Long, 620 F.3d at 167-68.

 7       For the foregoing reasons, the petition for review is

 8   GRANTED, and the case is REMANDED for further proceedings

 9   consistent with this order.    As we have completed our

10   review, any stay of removal that the Court previously

11   granted in this petition is VACATED, and any pending motion

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

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18




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