     15-633
     Lian v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 237 023

                          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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   15th day of August, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   HUA LIAN,
14                   Petitioner,
15
16                   v.                                              15-633
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Norman Kwai Wing Wong, New York,
24                                       N. Y.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John S.
28                                       Hogan, Senior Litigation Counsel;
29                                       Nicole N. Murley, Trial Attorney,
1                                  Office of Immigration Litigation,
2                                  U.S. Department of Justice,
3                                  Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    GRANTED, and the matter is REMANDED.

9        Petitioner Hua Lian, a native and citizen of the People’s

10   Republic of China, seeks review of a February 10, 2015 decision

11   of the BIA, affirming a June 19, 2013 decision of an Immigration

12   Judge (“IJ”) denying Lian’s application for asylum, withholding

13   of removal, and relief under the Convention Against Torture

14   (“CAT”).   In re Hua Lian, No. A205 237 023 (B.I.A. Feb. 10,

15   2015), aff’g No. A205 237 023 (Immig. Ct. N.Y. City June 19,

16   2013).   We assume the parties’ familiarity with the underlying

17   facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed both

19   the IJ’s and the BIA’s decisions “for the sake of completeness.”

20   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

21   2006).     The   applicable    standards   of   review   are   well

22   established. 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder,

23   575 F.3d 193, 196 (2d Cir. 2009).

24       Lian testified to past persecution in China because of her



                                      2
1    observance of religious practices.             She testified that she was

2    arrested,   detained,    and    beaten.          She    corroborated   that

3    testimony with witness statements, a detention certificate, and

4    medical evidence.       The IJ found Lian’s testimony of past

5    persecution credible, ROA 34-35, and did not request evidence

6    corroborating her claim of past persecution.               However, the IJ

7    did not make a determination whether Lian’s evidence sufficed

8    to sustain her burden of proof to establish past persecution.

9    Instead, the IJ considered whether she had established an

10   objectively   reasonable       fear       of   future   persecution,    and

11   concluded that she had not because she had failed to present

12   available evidence corroborating her claim of observance of

13   religious practices in the United States. Id. 35.

14        The BIA’s opinion recited Lian’s testimony about past

15   persecution in China, including her arrest, detention, and

16   beating, because of her observance of religious practices. Id.

17   3.   The BIA did not mention the IJ’s finding that this testimony

18   was credible nor consider whether Lian’s evidence, including

19   that testimony, sufficed to sustain her burden of proof to

20   establish past persecution.       Instead, like the IJ, the BIA went

21   directly to the claim of fear of future persecution and upheld

22   the IJ’s denial “because [Lian] did not provide sufficient



                                           3
1    corroborating evidence,” id. 4, i.e., evidence corroborating

2    her observance of religious practices in the United States.

3         We are skeptical about the way the agency disposed of Lian’s

4    asylum claim. We have found no case from the BIA or our Court

5    and no regulation permitting the agency, in a case where an

6    applicant claims past persecution, to fail to determine whether

7    the applicant has sustained her burden of proof as to that claim

8    and instead move on to a claim of future persecution, deny it,

9    and thereby deny asylum.1

10        The failure to determine whether Lian established past

11   persecution appears to be error. See Beskovic v. Gonzales, 467


          1
            The Government cites three summary orders of our Court
     that it asserts support the BIA’s action in this case. Br. for
     Respondent 28-29. Apart from the fact that these unpublished
     orders are not precedential, none of them permits what the BIA
     did here. In Feng Chen v. Holder, 475 F. App’x 377 (2d Cir. 2012),
     the applicant claimed past persecution, but the agency ruled
     that the facts alleged did not rise to the level of persecution
     and only then found corroboration lacking as to future harm.
     See id., No. 10-4974, ROA 4 (BIA opinion 2). In Yanqui Lin v.
     Lynch, 618 F. App’x 714 (2d Cir. 2015), the applicant made no
     claim of past persecution and claimed only fear of future
     persecution.      Lack of corroboration of the testimony
     supporting that claim was deemed a sufficient basis for denying
     the claim. See id., No. 14-1232, ROA 4-5 (BIA opinion 203). In
     Mei Hua Piao v. Holder, 561 F. App’x 69 (2d Cir. 2014), the
     applicants claimed past persecution, and the corroboration
     found lacking related to past harm, not future harm. See id.,
     No. 12-4470, ROA 4 (BIA opinion 2). Furthermore, the IJ did
     not believe that the applicants were credible. The IJ said, “The
     court concludes that it appears that . . . neither [applicant]
     can be considered credible.” Id., ROA 52 (IJ opinion 16).


                                     4
1    F.3d 223, 227 (2d Cir. 2006) (rejection of past persecution

2    claim erroneous for failure to consider evidence supporting

3    claim).    Past persecution, if established, would have made Lian

4    eligible     for       asylum.       See   8 U.S.C.    §§ 1101(a)(42),

5    1158(b)(1)(A);     8    C.F.R.   §    1208.13(b).     Furthermore,   the

6    failure to determine whether past persecution was established

7    deprived Lian of the opportunity to benefit from the presumption

8    of a well founded fear of future persecution that arises from

9    past persecution, see id. § 208.13(b)(i); Dong Zhong Zheng v.

10   Mukasey, 552 F.3d 277, 284 (2d Cir. 2009), a presumption that

11   could be rebutted only if the IJ makes specific findings

12   concerning either changed circumstances or relocation, with the

13   burden of proof on the Government with respect to such findings.

14   See 8 C.F.R. § 1208.13(b)(1)(i), (ii).

15       Because the agency has not explained why it was entitled

16   to act in the unusual manner shown by the record in this case,

17   the appropriate course is to remand the matter to the agency

18   to afford it the opportunity to provide such an explanation.

19   “Despite our generally deferential review of IJ and BIA opinions

20   denying asylum, we require a certain minimum level of analysis

21   from the IJ and BIA opinions denying asylum, and indeed must

22   require such if judicial review is to be meaningful.” Poradisova



                                            5
1    v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005).   Specifically, the

2    BIA should either explain why it believes it and the IJ were

3    entitled to consider the applicant’s claim of fear of future

4    persecution   without   first    determining   whether   she   had

5    established her claim of past persecution (and thereby gained

6    a presumption of a well founded fear of persecution), or abandon

7    that approach and remand to the IJ for a determination whether

8    the claim of past persecution was established (in which event

9    she would be eligible for asylum).

10       For the foregoing reasons, the petition for review is

11   GRANTED, and the matter is REMANDED for further proceedings not

12   inconsistent with this order. Any subsequent petition for

13   review will be referred to this panel.

14

15                                   FOR THE COURT:
16                                   Catherine O=Hagan Wolfe, Clerk




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