     08-1884-cv
     Dong v. Holder


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
     R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR
     AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1
     AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
     COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 14 th day of July, two thousand ten.
 5
 6        PRESENT: DENNIS JACOBS,
 7                          Chief Judge,
 8                 ROSEMARY S. POOLER,
 9                          Circuit Judge. *
10
11        - - - - - - - - - - - - - - - - - - - -X
12        SUN YI DONG,
13
14                      PETITIONER,
15
16                      -v.-                                                     08-1884-cv
17
18        ERIC H. HOLDER, Jr., UNITED STATES
19        ATTORNEY GENERAL,
20
21



                 *
                The Honorable Sonia Sotomayor, originally a member of
          the panel, was elevated to the Supreme Court on August 10,
          2009. The two remaining members of the panel, who are in
          agreement, have determined the matter. See 28 U.S.C.
          § 46(d); Local Rule 0.14(2); United States v. Desimone, 140
          F.3d 457 (2d Cir. 1998).
 1            RESPONDENT. **
 2   - - - - - - - - - - - - - - - - - - - -X
 3   FOR PETITIONER:             STUART ALTMAN, ESQ. (Liu Yu,
 4                               Esq., on the brief), New York,
 5                               NY.
 6
 7   FOR RESPONDENT:            JENNIFER R. KHOURI, Office of
 8                              Immigration Litigation, United
 9                              States Department of Justice
10                              (Gregory G. Katsas, Acting
11                              Assistant Attorney General;
12                              Barry J. Pettinato, Assistant
13                              Director, Office of Immigration
14                              Litigation, on the brief),
15                              Washington, D.C.
16
17        UPON DUE CONSIDERATION of this petition for review of a
18   Board of Immigration Appeals (“BIA”) decision, it is hereby
19   ORDERED, ADJUDGED, AND DECREED that the petition for review
20   is GRANTED in part, the order of the BIA is VACATED in part,
21   and that the case is REMANDED for further proceedings.
22
23        Petitioner Sun Yi Dong, a native and citizen of the
24   People’s Republic of China, seeks review of the March 28,
25   2008 order of the BIA affirming the December 12, 2006
26   decision of Immigration Judge (“IJ”) Robert Weisel, denying
27   his applications for asylum, withholding of removal under
28   § 241(b)(3) of the Immigration and Nationality Act, and
29   withholding of removal under the Convention Against Torture.
30   See In re Sun Yi Dong, No. A 99 667 844 (B.I.A. Mar. 28,
31   2008). We assume the parties’ familiarity with the
32   underlying facts and procedural history of this case.
33
34        The BIA found that Dong failed to establish that he was
35   subject to past persecution in China for his Falun Gong
36   practices, when, inter alia, he was arrested and detained
37   for 21 days, during which time he was interrogated and
38   provided bread and water only every three to four days. The
39   BIA also found that Dong failed to establish a well-founded
40   fear of future persecution based on China’s pattern and
41   practice of persecuting Falun Gong practitioners. We vacate


         **
            Pursuant to Federal Rule of Appellate Procedure
     43(c)(2), Attorney General Eric H. Holder, Jr. is
     automatically substituted for former Attorney General
     Michael B. Mukasey as the respondent in this case.

                                  2
 1   and remand for further action with respect to both
 2   findings. 1
 3
 4        With respect to Dong’s claim of past persecution, the
 5   record suggests that the IJ and BIA may have concluded that
 6   Dong could establish past persecution only if he was
 7   subjected to physical violence. See, e.g., In re Sun Yi
 8   Dong, No. A 99 667 844 (B.I.A. Mar. 28, 2008) (stating that
 9   Dong “was never physically harmed and was never arrested
10   again,” and concluding that “the experiences described by
11   the respondent are insufficient to establish past
12   persecution”); In re Sun Yi Dong, No. A 99 667 844 (Immig.
13   Ct. N.Y. City Dec. 12, 2006) (“During his detention there
14   was no evidence of beatings, torture or extended detention
15   with intimidation.”); id. (“There was no evidence . . . that
16   he was ever physically mistreated subsequent to October
17   2005.”). That would be the wrong legal standard. We have
18   cautioned the BIA to “be keenly sensitive to the fact that
19   . . . any physical degradation designed to cause pain,
20   humiliation, or other suffering, may rise to the level of
21   persecution.” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d
22   Cir. 2006). Because the BIA may have erroneously concluded
23   that the lack of physical violence against Dong foreclosed
24   his asylum claim, we vacate and remand for further
25   consideration.
26
27        As to Dong’s claim of future persecution, he relies on
28   the Chinese government’s pattern and practice of persecuting
29   Falun Gong practitioners. We conclude that the agency erred
30   in failing to consider the country condition report that
31   Dong submitted to the IJ. See Yan Chen v. Gonzales, 417
32   F.3d 268, 272 (2d Cir. 2005) (finding “significant error” in
33   the BIA’s failure to consider a country condition report).
34   Additionally, to the extent the IJ may have assumed that
35   Dong needed a high level of doctrinal knowledge to be
36   eligible for asylum, that reasoning would also be in error.
37   See Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006). 2


         1
           Dong has waived any challenge to the denial of his
     claim for relief for removal under the Convention Against
     Torture.
         2
           In light of the REAL ID Act, it is unclear whether or
     not our Circuit’s rule--that an IJ is under no obligation to
     provide pre-decision notice to the applicant that his/her
     testimony might require corroboration--remains good law.
                                  3
 1
 2        Accordingly, we GRANT the petition for review in part,
 3   VACATE the order of the BIA in part, and REMAND to the BIA
 4   for further proceedings consistent with this order.
 5
 6                              FOR THE COURT:
 7                              Catherine O’Hagan Wolfe, Clerk
 8
 9
10
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12
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18




     See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v. Holder, 575
     F.3d 193, 198 (2d Cir. 2009). As we remand on other
     grounds, it is unnecessary to decide this question in the
     first instance here. Nothing in this order prevents Dong
     from moving to reopen the administrative record on remand to
     provide corroborative evidence, if he is otherwise able to
     do so.
                                  4
