         09-2620-ag
         Piao v. Holder
                                                                                        BIA
                                                                                     Hom, IJ
                                                                               A 098 323 785
                           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 19 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                    Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                DENNY CHIN,
11                    Circuit Judges.
12       _______________________________________
13
14       LIAN YU PIAO,
15                Petitioner,
16
17                        v.                                    09-2620-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Jay Ho Lee, New York, New York.
 1   FOR RESPONDENT:           Tony West, Assistant Attorney
 2                             General, Civil Division; Anthony C.
 3                             Payne, Senior Litigation Counsel,
 4                             Office of Immigration Litigation;
 5                             Margaret Kuehne Taylor, Attorney,
 6                             Office of Immigration Litigation;
 7                             Department of Justice, Washington
 8                             D.C.
 9
10
11         UPON DUE CONSIDERATION of this petition for review of a

12   Board of Immigration Appeals (“BIA” or “Board”) decision, it

13   is hereby ORDERED, ADJUDGED, AND DECREED that the petition for

14   review is GRANTED.

15         Petitioner Lian Yu Piao, a native and citizen of the

16   People’s Republic of China, seeks review of the June 10, 2009

17   order of the BIA affirming the January 14, 2008 decision of

18   Immigration Judge (“IJ”) Sandy K. Hom denying her application

19   for   asylum,   withholding   of   removal,   and   relief   under   the

20   Convention Against Torture (“CAT”).           In re Lianyu Piao, No.

21   A 098 323 785 (B.I.A. June 10, 2009), aff’g No. A 098 323 785

22   (Immig. Ct. N.Y. City Jan. 14, 2008).         We assume the parties’

23   familiarity with the underlying facts and procedural history

24   in this case.

25         Where the BIA adopts certain aspects of the IJ’s decision

26   but declines to adopt others, we review the IJ’s decision as

27   modified by the BIA.    See Ming Xia Chen v. BIA, 435 F.3d 141,

28   144 (2d Cir. 2006).     The applicable standards of review are

29   well-established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

30   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

                                        2
1           Piao argues that errors in transcriptions of the hearing

2    tapes in this case caused the BIA to conclude that Piao had

3    not    met     her    burden      of   proving    a   likelihood          of     future

4    persecution on the basis of her Christian religious beliefs,

5    because the transcriptions incorrectly identified her home as

6    “Guangdong Province, Fujian City,” rather than Jilin Province,

7    Hunchun City.         A report in the record before the BIA indicated

8    that government supervision of religious activities in China

9    varies by region, and the BIA determined that Piao had not

10   demonstrated that church members in Guangdong Province or

11   “Fujian City” were subject to persecution.

12          An    alien    in    removal     proceedings      is       entitled       to    due

13   process, see Reno v. Flores, 507 U.S. 292, 306-07 (1993),

14   including “a reasonable opportunity . . . to present evidence

15   on [her] own behalf,” 8 U.S.C. § 1229a(b)(4)(B).                         Due process

16   is    violated       when    an   alien    is    “denied      a    full    and        fair

17   opportunity to present [her] claims,” Burger v. Gonzales, 498

18   F.3d    131,    134    (2d     Cir.    2007)     (internal        quotation       marks

19   omitted) (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 424

20   F.3d    144,    155    (2d    Cir.     2006)    (“Xiao   Ji       Chen    I”),    reh'g

21   granted, vacated on other grounds by Xiao Ji Chen v. U.S.

22   Dep't of Justice, 471 F.3d 315 (2d Cir.2006) (“Xiao Ji Chen

23   II”)), and thereby suffers “cognizable prejudice,” Garcia-


                                               3
1    Villeda v. Mukasey 531 F.3d 141, 149 (2d Cir. 2008).                         Among

2    other things, due process requires that an alien such as Piao

3    “be furnished with an accurate and complete translation of

4    official proceedings,” so as “to enable the applicant to place

5    [her] claim before the judge.”               Augustin v. Sava, 735 F.2d 32,

6    37 (2d Cir. 1984); see also Sterkaj v. Gonzales, 439 F.3d 273,

7    279   (6th   Cir.    2006)      (“Due    process       demands    a   reasonably

8    accurate . . . transcript to allow . . . the alien to mount a

9    challenge to the proceedings conducted before the IJ.”).

10         We are persuaded that the BIA erred in failing to address

11   Piao’s   claim      that    her   home       city   and    province    had    been

12   erroneously transcribed and that this error requires remand in

13   the   circumstances        of   this    case.       Piao   presented     several

14   documents demonstrating that, in fact, she hailed from Jilin

15   Province, Hunchun City.           She listed Jilin as her home province

16   in her asylum application.              She also submitted a Resident ID

17   Card issued in February 2004 in Jilin.                 The only references in

18   the record to her living in “Guangdong Province, Fujian City”

19   appear in the transcript of her testimony before the IJ.

20   During that testimony, after Piao purportedly stated that she

21   was from “Guangdong Province, Fujian City,” she asserted that

22   the   town   was    in     “northeast”        China.       This   assertion     is

23   consistent with her argument that she is in fact from Jilin


                                              4
1    Province, Hunchun City, because Jilin Province is located in

2    northeast China, whereas Guangdong Province is located in

3    southeast China.          Furthermore, Fujian is not a city; rather,

4    Fujian        and   Guangdong   are   neighboring       provinces,    rendering

5    Piao’s answer, as reflected in the transcript, nonsensical. 1

6        This        distinction     is    material     in   light    of   the    BIA’s

7    observation that “supervision of religious activity varies

8    widely from region to region,” and its recognition that the

9    Religious Freedom Report on China did describe “incidents of

10   harassment and possible persecution of house church officials

11   and members in several provinces of China.”                        BIA at 3-4.

12   Perhaps        most   importantly,      the    Religious        Freedom     Report

13   mentions instances of persecution of house church members in

14   Jilin     Province.         Therefore,        we   cannot    find     that     the

15   transcription errors here were harmless.                 See Xiao Ji Chen II,

16   471 F.3d at 338 (“[A]n error does not require a remand if the

17   remand would be pointless because it is clear that the agency

18   would adhere to its prior decision in the absence of error.”).

19   On remand, the agency should resolve the factual issue of

20   Piao’s home province and assess what bearing that has on her



               1
             We take judicial notice of these facts pertaining
       to the locations of provinces and cities within China.
       See Burger, 498 F.3d at 134.

                                             5
1    fear of future religious persecution. 2

2        We decline, however, Piao’s request that we remand to a

3    different IJ.             IJ Hom’s conduct did not demonstrate bias,

4    hostility, or any other factor suggesting that he would not be

5    capable       of    fairly    and    reliably     developing       the    record   on

6    remand.        Cf. Islam v. Gonzales, 469 F.3d 53, 56 (2d Cir.

7    2006).

8        For the foregoing reasons, the petition for review is

9    GRANTED       and   the    case     is   REMANDED      for   further     proceedings

10   consistent with this order.                As we have completed our review,

11   any stay of removal that the Court previously granted in this

12   petition is VACATED, and any pending motion for a stay of

13   removal in this petition is DISMISSED as moot. Any pending

14   request       for   oral     argument     in    this    petition    is    DENIED   in

15   accordance with Federal Rule of Appellate Procedure 34(a)(2),

16   and Second Circuit Local Rule 34.1(b).

17
18                                             FOR THE COURT:
19                                             Catherine O’Hagan Wolfe, Clerk
20
21
22




               2
             Piao does not challenge the agency’s findings that:
       (1) she did not establish eligibility for relief based on
       either her alleged violation of the family planning
       policy or her aid to North Korean refugees; and (2) she
       did not establish past persecution on account of her
       Christian faith. Therefore, the agency need not address
       these issues on remand.

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