     14-2406-ag
     Yun v. Lynch

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of February, two thousand sixteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                DENNIS JACOBS,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       GWANGSU YUN,
13                Petitioner,
14
15                    -v.-                                               14-2406-ag
16                                                                       NAC
17       LORETTA E. LYNCH, United States
18       Attorney General,*
19                Respondent.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR PETITIONER:                       Jay Ho Lee, Jay Ho Lee Law
23                                             Offices LLC, New York, New York.


                *
                 Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Loretta E. Lynch is automatically
         substituted for former Attorney General Eric H. Holder, Jr.
                                                  1
 1
 2   FOR RESPONDENT:            Benjamin C. Mizer, Daniel E.
 3                              Goldman, and Nicole N. Murley,
 4                              Office of Immigration
 5                              Litigation, U.S. Department of
 6                              Justice, Washington, D.C.
 7
 8        Petition for review of a decision of the Board of
 9   Immigration Appeals (“BIA”).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the petition for review is GRANTED, the BIA
13   decision is VACATED, and this matter is REMANDED for further
14   proceedings consistent with this summary order.
15
16        Petitioner Gwangsu Yun, a native of the Democratic
17   People’s Republic of Korea (“North Korea”) and citizen of
18   the Republic of Korea (“South Korea”), seeks review of a
19   June 9, 2014 decision of the BIA affirming a November 14,
20   2012 decision of an Immigration Judge (“IJ”) denying Yun’s
21   application for asylum, withholding of removal, and relief
22   under the Convention Against Torture. We assume the
23   parties’ familiarity with the underlying facts and
24   procedural history in this case.
25
26        The issue is whether substantial evidence supports the
27   BIA’s determination that Yun firmly resettled in South Korea
28   following his escape from North Korea (and before his
29   arrival in the United States). See Sall v. Gonzales, 437
30   F.3d 229, 232 (2d Cir. 2006). “When the BIA briefly affirms
31   the decision of an IJ and adopts the IJ’s reasoning in doing
32   so, we review the IJ’s and the BIA’s decisions together.”
33   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
34   Cir. 2006) (internal quotation marks and brackets omitted).
35
36        An alien who “was firmly resettled in another country
37   prior to arriving in the United States” is ineligible for
38   asylum. 8 U.S.C. § 1158(b)(2)(A)(vi). “The government
39   bears the initial burden of establishing a prima facie case
40   of firm resettlement by a totality of the circumstances.”
41   Tchitchui v. Holder, 657 F.3d 132, 135 (2d Cir. 2011).
42   “Once the government has established a prima facie case, the
43   burden shifts to the applicant to show that he or she
44   qualifies for one of the two enumerated exceptions.” Id.
45   Here, the government established a prima facie case of firm
46   resettlement because Yun was in South Korea for two years,
47   during which time he was offered (and accepted) South Korean

                                  2
 1   citizenship. See 8 C.F.R. § 208.15. The North Korean Human
 2   Rights Act of 2004 does not decide the issue to the
 3   contrary.1
 4
 5        Yun argues that he nevertheless qualifies for one of
 6   the exceptions to the prima facie rule because (1) his entry
 7   into South Korea “was a necessary consequence of his . . .
 8   flight from persecution,” (2) he “remained in that country
 9   only as long as was necessary to arrange onward travel,” and
10   (3) he “did not establish significant ties in that country.”
11   8 C.F.R. § 208.15(a); see also Jin Yi Liao v. Holder, 558
12   F.3d 152, 158 (2d Cir. 2009); Tchitchui, 657 F.3d at 137.
13
14        The BIA (and IJ) rejected this argument on the grounds
15   that Yun (1) stayed in South Korea for two years and
16   (2) held a South Korean passport (and therefore could travel
17   freely). We conclude that the BIA failed to adequately
18   explain its determination that Yun had not satisfied the
19   8 C.F.R. § 208.15(a) exception, and therefore remand.
20
21        1. The length of Yun’s stay in South Korea cannot
22   defeat his claim under 8 U.S.C. § 208.15(a) unless there is
23   substantial evidence that two years was longer than
24   “necessary to arrange onward travel.” Cf. Sall, 437 F.3d at
25   235 (“[T]he mere passage of four years, standing alone, does
26   not constitute firm resettlement.”). Neither the BIA nor
27   the IJ explained why the two-year stay was longer than
28   necessary or addressed Yun’s contention that he spent the
29   entire period trying to obtain passage to the United States.
30   Yun asserted that the length of his stay was attributable to
31   his time at a South Korean reeducation camp, as well as the
32   process of obtaining a South Korean passport and U.S. visa.
33   The BIA and IJ decisions lack any citation to the
34   administrative record that would support or undermine Yun’s
35   contention.
36
37        2. The BIA also does not state a policy or specify
38   evidence to establish why Yun’s possession of a South Korean


         1
              That statute clarifies that “North Koreans are not
     barred from eligibility for refugee status or asylum in the
     United States on account of any legal right to citizenship
     they may enjoy under the Constitution of the Republic of
     Korea,” but does not “apply to former North Korean nationals
     who have availed themselves of those rights.” 22 U.S.C.
     § 7842(a) (emphases added).
                                  3
 1   passport would categorically defeat his claim. Presumably,
 2   a South Korean passport is “necessary to arrange onward
 3   travel” from South Korea to the United States. 8 C.F.R.
 4   § 208.15. It is unclear whether, in the view of the BIA, a
 5   North Korean national’s acquisition of South Korean
 6   citizenship is a per se indicator of “substantial ties” to
 7   South Korea under 8 C.F.R. § 208.15(a).
 8
 9        There is some record evidence that Yun was employed
10   while in South Korea, although the BIA and IJ decisions do
11   not elaborate on the nature of that employment. Employment
12   is one of the circumstances that bear on whether an alien
13   has established significant ties in a country; but not all
14   employment shows such ties. Compare Sall, 437 F.3d at 231
15   (petitioner performed “odd jobs”), with Tchitchui, 657 F.3d
16   at 134 (petitioner owned and sold two businesses). On
17   remand, the BIA (or IJ) may wish to consider how Yun’s
18   employment bears on the “significant ties” analysis and, if
19   necessary, make findings or supplement the record as to the
20   nature of that employment.
21
22        Since we conclude that the BIA and IJ decisions are
23   inadequately reasoned, we remand to the BIA for further
24   explanation. See Poradisova v. Gonzales, 420 F.3d 70, 77
25   (2d Cir. 2005). On remand, the BIA may wish to: (1) express
26   a view or policy that decides this case; (2) explain its
27   reasoning based on the existing administrative record; or
28   (3) remand the case to the IJ for additional factfinding or
29   supplementation of the record.
30
31        For the foregoing reasons, we hereby GRANT the petition
32   for review, VACATE the BIA decision, and REMAND for further
33   proceedings consistent with this summary order.
34
35                              FOR THE COURT:
36                              CATHERINE O’HAGAN WOLFE, CLERK
37




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