         09-2360-ag
         Chen v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A094 824 646
                            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 16 th day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                REENA RAGGI,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _______________________________________
12
13       YAN CHEN,
14                        Petitioner,
15
16                         v.                                   09-2360-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                 Gerald Karikari, New York, New York.
1
2    FOR RESPONDENT:       Tony West, Assistant Attorney
3                          General, Civil Division; Emily Anne
4                          Radford, Assistant Director; Jesse
5                          D. Lorenz, Trial Attorney, Office of
6                          Immigration Litigation, United
7                          States Department of Justice,
8                          Washington, D.C.
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.

13       Petitioner Yan Chen, a native and citizen of the

14   People’s Republic of China, seeks review of a May 7, 2009

15   order of the BIA affirming the August 31, 2007 decision of

16   Immigration Judge (“IJ”) George T. Chew denying his

17   application for asylum, withholding of removal, and relief

18   under the Convention Against Torture (“CAT”).   In re Yan

19   Chen No. A094 824 646 (B.I.A. May 7, 2009), aff’g No. A094

20   824 646 (Immig. Ct. N.Y. City Aug. 31, 2007).   We assume the

21   parties’ familiarity with the underlying facts and

22   procedural history in this case.

23       Under the circumstances of this case, we review the

24   IJ’s decision as modified by the BIA.   See Xue Hong Yang v.

25   U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

26   The applicable standards of review are well-established.

27   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562


                                  2
1    F.3d 510, 513 (2d Cir. 2009); Edimo-Doualla v. Gonzales, 464

2    F.3d 276, 281-82 (2d Cir. 2006).

3          Chen claimed that when his wife became pregnant for a

4    second time, she went into hiding.       When the authorities

5    came to search for her, Chen refused to reveal her

6    whereabouts.    As a result, he claims, they detained him for

7    three days and beat him.    Neither the IJ nor the BIA found

8    that Chen was not credible.     Nevertheless, both concluded

9    that he had not experienced past persecution.       The IJ stated

10   that Chen “was beaten while he was in China.”       IJ Op. at 4.

11   The IJ noted that Chen “was released after three days, and

12   his wife did have a second child.       The wife was never

13   aborted nor sterilized, nor was the respondent sterilized.”

14   Id.   The IJ   concluded that Chen did not suffer past

15   persecution, but did not address Chen’s beating or detention

16   in his analysis, focusing instead on the 25,000 RMB fine

17   imposed on Chen and his wife.       For its part, the BIA found

18   that Chen’s testimony regarding his detention and beating

19   was “vague and conclusory.”     BIA Op. at 2.    Neither finding

20   was a sufficient basis upon which to deny relief.

21         We have stated that the agency must be “keenly

22   sensitive to the fact that a ‘minor beating’ or, for that

23   matter, any physical degradation designed to cause pain,


                                     3
1    humiliation, or other suffering, may rise to the level of

2    persecution if it occurred in the context of an arrest or

3    detention on the basis of a protected ground.”     Beskovic v.

4    Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).     The IJ’s

5    conclusory treatment of Chen’s beating and the IJ’s implicit

6    conclusion that it did not constitute persecution are

7    insufficient to permit meaningful review.     See id. at 327.

8        The BIA’s finding was similarly insufficient.     When the

9    agency finds that an applicant’s testimony is vague, it may

10   probe for additional details seeking to draw out

11   inconsistencies that would support an adverse credibility

12   determination, but it may not deny the claim simply on

13   vagueness grounds when the testimony is sufficiently

14   specific as to the essential facts so as to state a prima

15   facie case.     Jin Chen v. U.S. Dep’t of Justice, 426 F.3d

16   104, 114 (2d Cir. 2005).     Here, the IJ assumed that Chen was

17   credible.     Moreover, given our holding in Beskovic, Chen’s

18   testimony was not so vague that he failed to state a valid

19   claim that he had been persecuted.     See id.; Jin Shui Qiu v.

20   Ashcroft, 329 F.3d 140, 151 (2d Cir. 2003), overruled on

21   other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494

22   F.3d 296 (2d Cir. 2007).     The BIA thus erred in assuming

23   that Chen had established the requisite nexus to a protected


                                     4
1    ground but finding no past persecution based on its

2    conclusion that Chen’s testimony was impermissibly vague.

3    See Jin Chen, 426 F.3d at 114.

4        Because the BIA assumed without deciding that Chen’s

5    conduct “of helping his wife hide from family planning

6    officials and hiring a doctor to have [her] IUD removed”

7    constituted resistance to China’s family planning policies,

8    BIA Op. at 2, we do not reach this issue.     We conclude

9    simply that remand here is necessary because the agency

10   failed adequately to support its finding that Chen did not

11   suffer past persecution.

12       For the foregoing reasons, the petition for review is

13   GRANTED, and the case REMANDED for further proceedings

14   consistent with this order.    As we have completed our

15   review, any pending motion for a stay of removal in this

16   petition is DISMISSED as moot.     Any pending request for oral

17   argument in this petition is DENIED in accordance with

18   Federal Rule of Appellate Procedure 34(a)(2), and Second

19   Circuit Local Rule 34.1(b).

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