     09-3472-ag; 09-3694-ag
     Jin v. Holder; Song v. Holder



 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2009
 6
 7
 8   (Argued in Tandem:July 13, 2010 Decided: September 16, 2010)
 9
10                   Docket Nos. 09-3472-ag, 09-3694-ag
11
12   - - - - - - - - - - - - - - - - - - - - -x
13
14   JIN JIN LONG,
15
16               Petitioner,
17
18               - v.-                                No. 09-3472-ag
19
20   ERIC H. HOLDER JR., UNITED STATES ATTORNEY
21   GENERAL,
22
23                     Respondent.*
24
25   - - - - - - - - - - - - - - - - - - - - -x
26
27   RI QUAN SONG,
28
29                     Petitioner,
30
31               - v.-                                No. 09-3694-ag
32
33   ERIC H. HOLDER JR., UNITED STATES ATTORNEY
34   GENERAL,
35




           *
            The Clerk of the Court is directed to amend the
     official caption to conform to the listing of parties above.
1                   Respondent.**
2
3    - - - - - - - - - - - - - - - - - - - - -x
4

5        Before:         JACOBS, Chief Judge, WESLEY and CHIN,
6                        Circuit Judges.
7
8        Tandem petitions for review of removal orders, filed by

9    Chinese citizens who claim they suffered persecution in

10   China on account of assistance they gave refugees from North

11   Korea.    Ri Quan Song’s petition is DENIED.   Jin Jin Long’s

12   petition is GRANTED; the order of removal is VACATED, and

13   his case REMANDED to the Board of Immigration Appeals for

14   further proceedings consistent with this opinion.

15                                  JIE HAN, New York, NY, for
16                                  Petitioner Jin Jin Long.
17
18                                  JOHN Z. ZHANG, New York, NY, for
19                                  Petitioner Ri Quan Song.
20
21                                  SUSAN BENNETT GREEN, Trial
22                                  Attorney, Civil Division (Tony
23                                  West, Assistant Attorney
24                                  General, Civil Division, Carl H.
25                                  McIntyre, Assistant Director,
26                                  Susan Houser, Senior Litigation
27                                  Counsel, Office of Immigration
28                                  Litigation, Civil Division),
29                                  United States Department of
30                                  Justice, Washington, DC, for
31                                  Respondent Eric H. Holder Jr. in
32                                  Jin v. Holder, 09-3472-ag.

          **
            The Clerk of the Court is directed to amend the
     official caption to conform to the listing of parties above.
                                     2
 1                                 SUSAN BENNETT GREEN, Trial
 2                                 Attorney, Civil Division (Tony
 3                                 West, Assistant Attorney
 4                                 General, Civil Division, Linda
 5                                 S. Wernery, Assistant Director),
 6                                 United States Department of
 7                                 Justice, Washington, DC, for
 8                                 Respondent Eric H. Holder Jr. in
 9                                 Song v. Holder, 09-3694-ag.
10
11   DENNIS JACOBS, Chief Judge:

12       These petitions, heard in tandem, are filed by Chinese

13   citizens who testified that they suffered persecution for

14   violating a Chinese law that prohibits the provision of

15   assistance to North Korean refugees.    We must decide whether

16   such persecution can be classified as on account of

17   political opinion.   See 8 U.S.C. §§ 1101(a)(42)(A),

18   1158(b)(1)(A) (asylum); 8 U.S.C. § 1231(b)(3)(A)

19   (withholding of removal).   The orders of removal were issued

20   July 21, 2009 and August 11, 2009 by the Board of

21   Immigration Appeals (“BIA”).    Because the BIA failed to

22   consider a number of relevant facts, Jin Jin Long’s petition

23   is granted; the order of removal is vacated, and his case

24   remanded to the Board for further proceedings consistent

25   with this opinion.   On remand, the BIA (while considering

26   the facts as directed) should determine whether there is a




                                    3
1    law barring assistance to North Koreans,1 and (whether there

2    is or is not) in what circumstances persecution of those who

3    assist North Korean refugees would constitute persecution on

4    account of a protected ground.    Ri Quan Song’s petition is

5    denied.

6

7                                  I

8        According to the petitioners’ (inexpert) testimony,

9    Chinese law prohibits giving assistance to North Korean

10   refugees.   Both petitioners provided such assistance,

11   suffered at the hands of the Chinese government, and contend

12   that they suffered persecution on account of political

13   opinion.

14

15                                 A

16       Jin Jin Long is a Chinese national who resided until

17   2006 in Jilin Province, near the North Korean border.     On

18   February 7, 2005, he answered a knock on his door and

19   encountered a family of North Korean refugees seeking aid


          1
            The Ninth Circuit concluded in Xun Li v. Holder that
     the evidence presented to the Immigration Judge there
     required a finding that there is no Chinese law barring
     assistance to North Koreans. 559 F.3d 1096, 1110-11 (9th
     Cir. 2009).
                                   4
1    for a sick member.    Though he believed it was illegal to do

2    so, Jin provided food, clothing, and shelter for a week,

3    after which he purchased train tickets for the family’s

4    travel onward.

5        On December 17, 2005, Jin was detained by the police

6    and questioned about the North Korean refugees he had

7    helped.    He was held for eleven days, during which time he

8    was beaten repeatedly on his arms and back with electric

9    batons.    The police accused him of participating in a human-

10   smuggling ring--a charge he denied and claims was

11   fabricated.    He was never formally charged or brought before

12   a judge.    He was released only when his wife paid the

13   officers 4000 yuan.

14       Jin left China with his wife in February 2006, fearing

15   further harassment by the Chinese police.    He entered the

16   United States without inspection some months later.

17       Jin was found credible.    But the BIA denied his

18   applications for asylum and withholdi g of removal on the

19   ground that he had failed to establish the required nexus

20   between his asserted political opinion and the alleged

21   persecution, and that he was therefore ineligible for asylum




                                    5
1    and withholding of removal.2   This petition for review

2    timely followed.

3

4                                   B

5        Ri Quan Song is a Chinese national who resided until

6    2004 in Jilin Province, near the North Korean border.     His

7    uncle married a North Korean refugee in 1997.

8        Song’s uncle was arrested in 2003 and questioned about

9    his wife.   Song’s uncle was detained for three weeks, during

10   which time he was repeatedly beaten.   He was released when

11   the police were paid 3000 yuan.

12       Thereafter, Song arranged with a refugee organization

13   to send his uncle’s family (wife, daughter, and step-

14   daughter) to South Korea.   Song accompanied them part of the

15   way, to Beijing.   There, Song was informed by his wife that

16   the police were asking after him and had arrested the man


          2
            Jin also sought relief under the Convention Against
     Torture (“CAT”), United Nations Convention Against Torture
     and Other Cruel, Inhuman or Degrading Treatment or
     Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465
     U.N.T.S. 85 (implemented by 8 C.F.R. §§ 1208.16-18). That
     claim was denied because the Board concluded that he had
     failed to show a sufficient likelihood of torture were he to
     return to China. Jin does not challenge the BIA’s denial of
     his CAT claim here, and therefore forfeits objection to it.
     See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1
     (2d Cir. 2005).
                                    6
1   who had driven him and his relatives to Beijing.     Song left

2   China in March 2004, without returning home.     He entered the

3   United States without inspection some weeks later.

4       The BIA denied Song’s application for withholding of

5   removal, on two grounds: his failure to establish that his

6   actions constituted the expression of a political opinion,

7   and his failure to establish a sufficient nexus between a

8   protected ground and the alleged persecution.3    This

9   petition for review timely followed.4


         3
           Song also applied for asylum and CAT relief, both of
    which were denied. Neither claim survives here.

         Song’s asylum application was denied as untimely, and
    we lack jurisdiction to consider Song’s challenge to that
    denial. Jurisdiction lies to review a BIA conclusion that
    an asylum application is untimely under 8 U.S.C.
    § 1158(a)(2)(B) or that untimeliness is not excused under 8
    U.S.C. § 1158(a)(2)(D) only insofar as the petition requests
    review of “constitutional claims or questions of law.” 8
    U.S.C. § 1252(a)(2)(D); 8 U.S.C. § 1158(a)(3). Song’s
    petition does neither. It argues only that “his delay was
    caused by the action of and cheating of his previous agent
    who . . . assured [Song] that the . . . asylum [application]
    was . . . [timely] filed.” This argument challenges only
    the BIA’s contrary factual finding.

         Song’s CAT claim was deemed forfeited by the BIA, and
    Song does not contest that ground of denial here.
         4
           Song argues that the BIA erred by affirming the
    Immigration Judge’s exclusion of certain evidence,
    affidavits from Song’s wife and aunt. Those affidavits are
    duplicative of Song’s testimony, and largely irrelevant to
    the grounds on which the BIA denied Song’s application for
                                 7
1                                  C

2        These petitions were argued in tandem because they

3    implicate the same issue: In what circumstances--if any--may

4    the enforcement of a law of general applicability (here, the

5    apparent prohibition of assistance to North Korean refugees)

6    constitute persecution on account of political opinion?

7

8                                 II

9        “Where, as here, the BIA does not adopt the decision of

10   the [Immigration Judge (IJ)] to any extent, we review the

11   decision of the BIA.”   Garcia-Padron v. Holder, 558 F.3d

12   196, 199 (2d Cir. 2009).   “Legal issues, and the application

13   of law to fact, are reviewed de novo.”    Castro v. Holder,

14   597 F.3d 93, 99 (2d Cir. 2010).   And we review factual

15   findings for substantial evidence, deferring “unless any

16   reasonable adjudicator would be compelled to conclude to the

17   contrary,” 8 U.S.C. § 1252(b)(4)(B).     E.g., Shabaj v.

18   Holder, 602 F.3d 103, 105 (2d Cir. 2010).

19


     withholding of removal. Their exclusion (whether proper or
     not) was therefore harmless. See, e.g., Garcia-Villeda v.
     Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (applying harmless
     error analysis); Corovic v. Mukasey, 519 F.3d 90, 96 (2d
     Cir. 2008) (same).
                                   8
1                                III

2        Eligibility for both asylum and withholding of removal

3    requires that an applicant demonstrate a nexus between the

4    persecution he alleges (or fears) and an asserted protected

5    ground--here, “political opinion.”   8 U.S.C.

6    §§ 1101(a)(42)(A), 1158(b)(1)(A) (asylum); 8 U.S.C.

7    § 1231(b)(3)(A) (withholding of removal); see also, e.g.,

8    Yueqing Zhang v. Gonzales, 426 F.3d 540, 544 (2d Cir. 2005).

9    The applicant must demonstrate that his persecutors acted or

10   will act in sufficient part because of his political opinion

11   (either real or imputed), and not from some other impetus.

12   INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992); Osorio

13   v. INS, 18 F.3d 1017, 1028-29 (2d Cir. 1994).

14       As a rule, the enforcement of generally applicable law

15   cannot be said to be on account of the offender’s political

16   opinion, even if the offender objects to the law.   See,

17   e.g., Zhang, 426 F.3d at 545 (noting that because an

18   “applicant must . . . show . . . that the persecutor’s

19   motive to persecute arises from the applicant’s political

20   belief[,] . . . [i]t follows . . . that where the

21   applicant’s political belief takes the form of opposition to

22   a government policy or practice that is visited on the


                                  9
1    population at large, mere subjection to that policy or

2    practice will not itself qualify as persecution ‘on account

3    of’ political opinion”).   At the same time, prosecution that

4    is pretext for political persecution is not on account of

5    law enforcement.   Xun Li v. Holder, 559 F.3d 1096, 1108-10

6    (9th Cir. 2009).   Thus, someone who has been singled out for

7    enforcement or harsh punishment because of his political

8    opinion can show eligibility.5     See Vumi v. Gonzales, 502

9    F.3d 150, 157-59 (2d Cir. 2007) (asking whether

10   interrogation and punishment were “disproportionate to the

11   crime, which would indicate persecution on grounds of

12   political opinion rather than prosecution or legitimate law-

13   enforcement interrogation” (internal quotation marks

14   omitted)); Zhang, 426 F.3d at 547 (determining that if

15   applicant could show that fines and business license

16   revocations were “an attempt to repress his challenge to the

17   government’s legitimacy,” then he could show eligibility);

18   Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir. 2005) (noting

19   that while “compulsory military service” typically “does not

20   provide asylum seekers with adequate cause for claiming


          5
            Such singling out, moreover, may be on account of a
     person’s opposition to a particular law or policy; the
     opposition need not extend to encompass the entire regime.
                                   10
1    persecution,” eligibility can be shown “if an individual’s

2    refusal to serve in the military leads to disproportionately

3    excessive penalties, inflicted on him or her because of that

4    individual’s . . . political opinion”), overruled in part on

5    other grounds, Lin v. U.S. Dep’t of Justice, 494 F.3d 296,

6    305 (2d Cir. 2007) (in banc).        Facts must be carefully

7    sifted in context to ascertain whether there is a sufficient

8    political element to the alleged persecution.        E.g., Osorio,

9    18 F.3d at 1029 (ruling that the BIA erred by concluding

10   that an applicant’s labor dispute with his government was

11   economic and non-political without “examin[ing] []either the

12   political dimension of th[e] dispute []or its political

13   context”); Islami, 412 F.3d at 396 (noting that while

14   “compulsory military service” typically “does not provide

15   asylum seekers with adequate cause for claiming

16   persecution,” “an individual may be eligible for asylum if

17   he or she is fleeing to avoid punishment for refusing to

18   join a ‘military force condemned by the international

19   community’”).

20

21                                   A

22       In Jin’s case, the BIA failed to consider a number of


                                     11
1    facts that may support an inference that his arrest and

2    detention were pretextual.   See, e.g., Castro, 597 F.3d at

3    99 (noting that substantial evidence “requires a certain

4    minimum level of analysis from the IJ and BIA, as well as

5    some indication that the IJ considered material evidence

6    supporting a petitioner’s claim” (internal quotation marks

7    omitted).   Jin testified that his conduct was humanitarian

8    or charitable, and did not cast his motives as political.

9    But a humanitarian or charitable act may signify a

10   humanitarian or charitable conviction; and a government

11   might construe violation of a law as opposition or

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

13   accordingly.   It is unknown what the lawful penalty may be

14   for assisting North Korean refugees.   But the following

15   facts may support an inference that what Jin suffered was

16   not entirely the enforcement of a penal statute.

17       Jin testified (credibly) that the refugee-smuggling

18   allegations underlying his arrest were fabrications.    He was

19   never formally charged or brought before a judge.    See Li,

20   559 F.3d at 1109 (“[T]he distinction between persecution and

21   prosecution is less than clear cut when the ‘prosecution’

22   lacks legitimacy or proceeds without the process normally


                                   12
1    due.”).   Yet, though neither charged nor presented in court,

2    he was subjected to prolonged detention and repeated

3    physical abuse.   See, e.g., Vumi, 502 F.3d at 158 (holding

4    that “interrogation and punishment” that is

5    “disproportionate to the crime . . . would indicate

6    persecution on grounds of political opinion rather than

7    prosecution or legitimate law-enforcement interrogation”

8    (internal quotation marks omitted)).   Moreover, U.S. State

9    Department country reports on China suggest that the North

10   Korean refugee issue is politically charged.   See, e.g.,

11   Osorio, 18 F.3d at 1029 (requiring consideration of a

12   dispute’s context).   The Chinese government has apparently

13   arrested numerous activists, missionaries, and others--both

14   foreign and Chinese--for assisting North Korean refugees.

15   See generally Kang v. Att’y Gen. of the United States, 611

16   F.3d 157, 160-62 (3d Cir. 2010).   This can be seen as

17   enforcement of the law (assuming there is a law prohibiting

18   assistance to North Korean refugees), but it may also

19   suggest an active resistance to China’s North Korean

20   immigration policies, and an attempt at suppression.     Jin’s

21   actions may have been viewed by the Chinese authorities as

22   part of this resistance, and the BIA should therefore have


                                   13
1    considered the facts in that light.

2          Accordingly, Jin’s petition for review is granted; the

3    order of removal is vacated, and his case is remanded to the

4    BIA for consideration of these facts in the first instance.

5    See, e.g., Castro, 597 F.3d at 100; Zhang, 426 F.3d at 548-

6    49.   If the BIA determines on remand that there was no penal

7    law barring assistance to North Korean refugees, it shall

8    also consider whether the absence of such a law strengthens

9    the petitioner’s contention that he was persecuted for

10   political reasons rather than punished for legitimate law

11   enforcement purposes.

12

13                                 B

14         Song has not argued that the Chinese authorities

15   imputed any political opinion to him.6   Song’s petition

16   therefore fails on the essential ground that there is little

17   (if any) evidence that he acted from a political motive.     He

18   testified that he did not believe that assisting North

19   Korean refugees was illegal until after his assistance was



           6
            An imputed political opinion claim not raised
     administratively is unexhausted, and will not be considered
     here. See, e.g., Lin v. U.S. Dep’t of Justice, 453 F.3d 99,
     105 n.3 (2d Cir. 2006).
                                   14
1    completed.    (He then fled China before ever encountering the

2    authorities investigating his conduct.)       He evidently acted

3    on the independently sufficient motive of family loyalty and

4    concern for his uncle, aunt, and cousins.       That motivation

5    does not qualify him for political asylum.       See Elias-

6    Zacarias, 502 U.S. at 482.    The record would not support an

7    inference or raise a suspicion that he acted politically to

8    oppose the law that he was violating.

9

10                                  IV

11       For the foregoing reasons, Jin’s petition is granted;

12   the order of removal is vacated, and his case is remanded to

13   the BIA for further proceedings consistent with this

14   opinion.     On remand, the BIA (while considering the facts as

15   directed) should determine whether there is a law barring

16   assistance to North Koreans, and (whether there is or is

17   not) in what circumstances persecution of those who assist

18   North Korean refugees would constitute persecution on

19   account of a protected ground.       Song’s petition is denied.




                                     15
