     16-2695
     Yang v. Sessions
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A205 511 039
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
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 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 26th day of March, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            GERARD E. LYNCH,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   NENG-MENG YANG,
14            Petitioner,
15
16                      v.                                       16-2695
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Lee Ratner, Law Office of Michael
24                                      Brown, New York, NY.
25
26   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
27                                      Attorney General; Greg D. Mack,
28                                      Leslie McKay, Senior Litigation
29                                      Counsel, Office of Immigration
30                                      Litigation, United States
31                                      Department of Justice, Washington,
32                                      DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is GRANTED IN PART and DENIED IN PART.

5        Petitioner Neng-Meng Yang, a native and citizen of the

6    People’s Republic of China, seeks review of a July 13, 2016,

7    decision of the BIA affirming a June 16, 2015, decision of an

8    Immigration     Judge    (“IJ”)    denying      Yang’s    application     for

9    asylum,      withholding    of    removal,      and     relief    under   the

10   Convention Against Torture (“CAT”).              In re Neng-Meng Yang,

11   No. A205 511 039 (B.I.A. July 13, 2016), aff’g No. A205 511

12   039 (Immig. Ct. N.Y. City June 16, 2015).                      We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

15       We have reviewed the IJ’s decision as modified by the

16   BIA, i.e., minus the adverse credibility determination on

17   which the BIA declined to rely.            See Xue Hong Yang v. U.S.

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

19   Accordingly, we have assumed Yang’s credibility as to past

20   events and his subjective fear of harm.               Yan Chen v. Gonzales,

21   417 F.3d 268, 271-72 (2d Cir. 2005).

22       Family Planning Claim

23       We remand to the BIA as to Yang’s claim based on his
                                          2
1    resistance to China’s coercive family planning policy.     We

2    have reviewed the agency’s factual findings for substantial

3    evidence, and   “[q]uestions of law, as well as the

4    application of legal principles to undisputed facts . . .

5    de novo.”   Paloka v. Holder, 762 F.3d 191, 195 (2d Cir.

6    2014).   An applicant seeking asylum and withholding of

7    removal must establish that his past persecution or fear of

8    future persecution is “on account of race, religion,

9    nationality, membership in a particular social group, or

10   political opinion,” 8 U.S.C. § 1101(a)(42) (emphasis

11   added),i.e., that the protected ground is “one central

12   reason” for the persecution.   Id. § 1158(b)(1)(B)(i);

13   Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010)

14   (explaining that the burden is on the alien “to establish a

15   sufficiently strong nexus to . . . [a] protected

16   ground[]”).

17       The IJ reasonably determined that Yang was arrested and

18   detained for disorderly conduct rather than resistance to

19   China’s family planning policy.    Yang testified that he was

20   arrested after complaining about not being allowed to have

21   a second child and kicking over a chair in the family

22   planning office.   The IJ found that the chair-kicking,

23   rather than Yang’s complaining, was the cause of the
                                    3
1    arrest.   Given Yang’s testimony that he was not arrested

2    until he kicked over the chair, that determination was

3    supported by substantial evidence.       Siewe v. Gonzales, 480

4    F.3d 160, 169 (2d Cir. 2007) (deferring to agency inference

5    “[s]o long as an inferential leap is tethered to the

6    evidentiary record”); see also Jian Hui Shao v. Mukasey,

7    546 F.3d 138, 157 (2d Cir. 2008) (according substantial

8    deference to the agency’s findings of fact and “assessment

9    of competing evidence”).

10         However, the agency overlooked significant evidence in

11   determining that Yang failed to demonstrate a nexus between

12   his   opposition   to   the   family   planning   policy   and   the

13   altercation with family planning officials when they came to

14   Yang’s house to take his wife for her family planning checkup.

15   The agency focused only on Yang’s concern over his wife’s

16   health and ignored his assertion that he also resisted the

17   officials while expressing his disagreement with the family

18   planning policy.

19         The BIA’s rejection of the adverse credibility

20   determination undermines the IJ’s finding on that point

21   because we must credit Yang’s statements about past events.

22   See Yan Chen, 417 F.3d at 271 (holding that we may not rely

23   on an adverse credibility determination where the BIA
                                      4
1    explicitly assumed credibility).   Assuming Yang’s

2    credibility, it appears that the agency failed to take into

3    account evidence that Yang angered the family planning

4    officials not just by arguing that his wife was not feeling

5    well, but also by insisting that he and his wife were

6    entitled to have a second child and that therefore his wife

7    would no longer attend pregnancy checkups.   It was only

8    after he made these statements that he had a physical

9    altercation with the officials.    Given this sequence of

10   events, the agency either overlooked Yang’s comments or

11   failed to explain its conclusion that Yang scuffled with

12   officials because of his wife’s health rather than his

13   opposition to the family planning policy.    Xiao Ji Chen v.

14   U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006)

15   (holding that we cannot make a substantial evidence

16   determination where the agency decision omits facts that

17   are “fundamental to the claim”).

18       The agency further overlooked evidence that the family

19   planning officials considered Yang to be resisting the

20   family planning policy.   The officials accused him of

21   openly violating the family planning policy and returned to

22   his home on more than one occasion seeking to arrest him

23   for the violation.   See Chun Gao v. Gonzales, 424 F.3d 122,
                                   5
1    129 (2d Cir. 2005) (“[A]n imputed political opinion,

2    whether correctly or incorrectly attributed, can constitute

3    a ground of political persecution.” (internal quotation

4    marks omitted)).   Because we must assume credibility, as

5    the BIA did, we credit Yang’s assertions that these events

6    took place.   Yan Chen, 417 F.3d at 271.     A failure to

7    consider such evidence warrants remand.      Id. at 272

8    (finding “significant error” where the agency “failed to

9    consider relevant evidence”).

10       In addition to overlooking evidence of nexus, the

11   agency overlooked potentially significant evidence relating

12   to Yang’s fear of future persecution on account of his

13   resistance to the family planning policy.     Yang asserted

14   that family planning officials still frequently visit his

15   home in an effort to arrest him for violating the policy.

16   As noted above, the fact of those visits must be assumed

17   absent an adverse credibility determination.      See id. at

18   271-72.   In finding that Yang failed to meet his burden,

19   the agency credited Yang’s wife’s assertion that the family

20   planning officials sought to arrest Yang for smuggling,

21   which it determined was unrelated to the alleged violation

22   of the family planning policy.      But Yang’s wife wrote that

23   family planning officials repeatedly came to her home to
                                     6
1    punish Yang for violating the policy, and only sought to

2    arrest him for smuggling after she told them that he had

3    left for the United States.   Remand to the agency is

4    therefore appropriate for further consideration of Yang’s

5    claims based on his resistance to the family planning

6    policy.   Id. at 272, 275 (remanding where the agency

7    “failed to consider relevant evidence”); see also Uwais v.

8    U.S. Att’y Gen., 478 F.3d 513, 519 (2d Cir. 2007)

9    (remanding where we could not “predict with confidence

10   that, applying the correct legal standards and addressing

11   the complete factual record, the agency would again deny

12   [petitioner’s] claim.”).

13       Christianity Claim

14       The agency did not err in denying Yang’s claim for

15   relief based on religious persecution.      Yang had to

16   demonstrate a well-founded fear of future persecution

17   because he did not allege past persecution on that basis.

18   8 C.F.R. § 1208.13(a), (b).   A fear of future persecution

19   must be “objectively reasonable,” Ramsameachire v.

20   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004), and requires

21   “solid support in the record” to demonstrate that the fear

22   is more than “speculative,” Jian Xing Huang v. INS, 421

23   F.3d 125, 129 (2d Cir. 2005).       An applicant can either
                                     7
1    “provide evidence that there is a reasonable possibility

2    []he will be singled out for persecution” or show “that

3    there is a pattern or practice in his . . . country of

4    nationality . . . of persecution of a group of persons

5    similarly situated to the applicant.”     Lianping Li v.

6    Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (quoting 8 C.F.R.

7    § 1208.13(b)(2)(iii)(A)).

8        The agency reasonably found that Yang failed to show

9    that he would be singled out for persecution.    Yang

10   admitted that he never experienced any problems practicing

11   his religion while he was in China.   The agency also

12   reasonably determined that there is no pattern or practice

13   of persecuting persons similarly situated to Yang.      The

14   State Department report on Religious Freedom in China notes

15   that some local authorities let unregistered religious

16   groups practice their beliefs in peace.    It also notes

17   that, since 2005, China’s State Administration for

18   Religious Affairs has permitted individuals to hold

19   religious gatherings without registering with the

20   government.   Though the report also contains instances of

21   government officials harassing members of underground

22   churches, these instances do not vitiate the agency’s

23   conclusion that Yang failed to demonstrate that his fear of
                                   8
1    future persecution is objectively reasonable.    Siewe, 480

2    F.3d at 167-68 (holding that we defer to the IJ as the

3    finder of fact “[w]here there are two permissible views of

4    the evidence”).

5        For the foregoing reasons, the petition for review is

6    GRANTED IN PART and the case is REMANDED for further

7    consideration of Yang’s fear of persecution on account of

8    his resistance to China’s coercive family planning policy,

9    but DENIED IN REMAINING PART as to Yang’s claim of

10   religious persecution.   As we have completed our review,

11   and the pending motion for a stay of removal in this

12   petition is DENIED as moot.

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk




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