10-3543-ag
Xiong Jin v. Holder

                                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
THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 3rd day of January, two thousand twelve.

Present:              ROSEMARY S. POOLER,
                      DEBRA ANN LIVINGSTON,
                      RAYMOND J. LOHIER, JR.,
                                Circuit Judges.

_____________________________________________________

XIONG JIN,

                                           Petitioner,

                             -v.-                                       10-3543-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,

                                           Respondent.



Appearing for Petitioner:           Aaron Louis Lebenger, Jim Li, New York, N.Y.

Appearing for Respondent:           Allison Frayer, Trial Attorney, Office of Immigration Litigation,
                                    Civil Division; Tony West, Assistant Attorney General, Civil
                                    Division; Leslie McKay, Assistant Director, Office of Immigration
                                    Litigation; United States Department of Justice, Washington, D.C.
       Petition for review of an order of the Board of Immigration Appeals (“BIA”).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is GRANTED.

        Xiong Jin petitions for review of the August 2, 2010 decision by the BIA dismissing his
appeal of the Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT relief”). We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        “Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we
review the decision of the IJ as supplemented by the BIA.” Santoso v. Holder, 580 F.3d 110,
111 (2d Cir. 2009). We review legal issues and the application of law to fact de novo. See, e.g.,
Castro v. Holder, 597 F.3d 93, 99 (2d Cir. 2010). We review findings of fact under the
substantial evidence standard, and we defer to the agency’s findings “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Jin Jin Long v. Holder, 620 F.3d
162, 166 (2d Cir. 2010) (quoting INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B)). Substantial
evidence, however, “requires a certain minimum level of analysis from the IJ and BIA, as well as
some indication that the IJ considered material evidence supporting a petitioner’s claim.” Id. at
167 (quoting Castro, 597 F.3d at 99). In particular, “IJs and the BIA have a duty to explicitly
consider any country conditions evidence submitted by an applicant that materially bears on his
claim.” Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir. 2005). Indeed, “[t]his Court will
vacate BIA conclusions, as to the existence or likelihood of persecution, that a perfectly
reasonable fact-finder could have settled upon, insofar as the BIA either has not applied the law
correctly, or has not supported its findings with record evidence.” Manzur v. U.S. Dep’t of
Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007) (internal quotation marks omitted).

        To establish persecution on account of political opinion, an applicant must show “that the
persecution arises from his or her own actual or imputed political opinion.” Koudriachova v.
Gonzales, 490 F.3d 255, 263 (2d Cir. 2007). “The applicant must also show, through direct or
circumstantial evidence, that the persecutor’s motive to persecute arises from the applicant’s
political belief.” Castro, 597 F.3d at 100 (quoting Yueqing Zhang v. Gonzales, 426 F.3d 540,
545 (2d Cir. 2005) (citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992))).

        As to the BIA’s conclusion that Xiong Jin could not establish the requisite nexus between
his beliefs and his arrest because he had been arrested for a crime of general applicability, we
addressed this issue in Jin Jin Long. See Jin Jin Long, 620 F.3d at 166 (“In what
circumstances—if any—may the enforcement of a law of general applicability (here, the
apparent prohibition of assistance to North Korean refugees) constitute persecution on account of
political opinion?”). Here, the BIA erred by failing adequately to consider the issues raised in
Jin Jin Long, specifically: (1) whether there was evidence based on Xiong Jin’s treatment and
the political context for his arrest that the arrest was pretextual, and (2) whether there was in fact
a law prohibiting aid to North Korean refugees.


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        Although the BIA was correct in recognizing that “the enforcement of generally
applicable law cannot be said to be on account of the offender’s political opinion, even if the
offender objects to the law,” the BIA failed to recognize that “prosecution that is pretext for
political persecution is not on account of law enforcement.” Id. (citing Xun Li v. Holder, 559
F.3d 1096, 1108-10 (9th Cir. 2009)). “Thus, someone who has been singled out for enforcement
or harsh punishment because of his political opinion can show eligibility.” Id. In conducting
such an analysis, the BIA must “carefully sift[]” the facts in context “to ascertain whether there
is a sufficient political element to the alleged persecution.” Id. at 167.

        Applying these principles in Jin Jin Long, we remanded Long’s case to the BIA because
the “BIA failed to consider a number of facts that may support an inference that his arrest and
detention were pretextual,” particularly that: (1) he credibly testified that the allegations of
refugee-smuggling that underlay his arrest were fabricated; (2) he was never formally charged or
brought before a judge; (3) he was subjected to eleven days of detention and repeated physical
abuse, though never charged with a crime; (4) State Department country reports “suggest that the
North Korean refugee issue is politically charged;” and (5) the Chinese government has arrested
many “activists, missionaries, and others” for assisting North Koreans, a fact which may
“suggest an active resistance to China’s North Korean immigration policies, and an attempt at
suppression,” and “Jin[ Jin Long]’s actions may have been viewed by the Chinese authorities as
part of this resistance.” Id.

        In this case, the BIA erred both by failing to acknowledge that “prosecution that is
pretext for political persecution is not on account of law enforcement,” Jin Jin Long, 620 F.3d at
167, and by failing to “sift[] [the facts] in context,” id.—that is, to consider the political context
of Xiong Jin’s arrest. Like the petitioner in Jin Jin Long, Xiong Jin credibly testified that he was
detained for several days and beaten, released only after a family member paid a bribe, and never
formally charged with any crime. Also before the agency was a 2007 Congressional Research
Service Report (“CRS Report”), entitled North Korean Refugees in China and Human Rights
Issues; International Response and U.S. Policy Options, that Jin submitted as evidence that the
issue of North Korean refugees in China is politically charged. The BIA failed to consider
whether such cumulative facts “may support an inference that his arrest and detention were
pretextual.” Jin Jin Long, 620 F.3d at 167.

        As to the IJ’s conclusion that Xiong Jin did not provide evidence that he held a political
opinion, “a claim of political persecution cannot be evaluated in a vacuum, . . . without reference
to the relevant circumstances in which the claim arises.” Castro, 597 F.3d at 106. “We have
repeatedly emphasized the fallacy of this approach and have on several occasions remanded
cases in which the agency denied an application for asylum based on its failure to properly
engage in the ‘complex and contextual factual inquiry’ that such claims often require.” Id.
(citing Vumi v. Gonzales, 502 F.3d 150, 157 (2d Cir. 2007); Osorio v. INS, 18 F.3d 1017, 1030
(2d Cir. 1994); Yueqing Zhang, 426 F.3d at 546).




                                                  3
        The BIA and the IJ in this case “embraced an ‘impoverished view of what political
opinions are, especially in a country . . . where certain democratic rights have only a tenuous
hold,’ by rejecting [the petitioner]’s claim without any coherent examination of the surrounding
political environment.” Castro, 597 F.3d at 106 (quoting Yueqing Zhang, 426 F.3d at 546)
(citations omitted) (omission in original). The IJ concluded that “the main reason that [Xiong
Jin] was helping this particular individual was because he felt that the people in North Korea
were less fortunate than others because the lack of food and the poor conditions that these
individuals are facing in North Korea. No evidence was provided that [Xiong Jin] himself was
against the government of China in any way or form.” In reaching this conclusion, however, the
IJ failed to make the inquiry described in Castro and in Jin Jin Long, and ignored the CRS
Report, which provided evidence of the political context for Xiong Jin’s actions and his arrest.
According to the report, North Koreans are crossing the border to China based on “deteriorating
humanitarian conditions—mainly due to food shortages—and human rights violations,” but,
even though China is a party to the Refugee Convention and Protocol, it has not allowed United
Nations agencies to have access to North Koreans in China “because it views these individuals
as economic migrants (rather than political refugees) who cross the border illegally, primarily in
search of food.” Further, the report states that China generally does not allow North Koreans to
apply for political asylum and “China’s deportations [of North Koreans] raise the question of a
violation of international law,” because China is obligated under the Refugee Convention, under
the principle of non-refoulement, not to deport people who qualify as refugees to a country
where they will be persecuted. In 2006, the U.N. High Commissioner for Refugees raised these
issues with the Chinese Foreign Ministry.

        The evidence in the CRS Report is material to analyzing Xiong Jin’s testimony. For
example, Xiong Jin testified that he sheltered Chende “[b]ecause he was a Korean refugee,
because [Xiong Jin] [felt] very sympathy and . . . wanted to help him.” Considered in light of the
evidence of the political context in China, Xiong Jin’s description of his relative as a “refugee”
and expression of sympathy for the plight of “North Korean refugees” as a group arguably
expresses a political opinion, because China refuses to acknowledge refugees; that Xiong Jin
viewed Chende as a refugee implies that he believed Chende had a right to remain in China
notwithstanding China’s policies. Further, Xiong Jin stated that he did not feel he committed a
crime, and that it was China that committed a crime. Viewed in light of the political context of
China’s policies toward North Korean refugees, Xiong Jin may have been expressing the belief
that China’s policy toward North Korean refugees was wrong, even if Xiong Jin did not describe
this view as a “political” opinion. Similarly, when asked if he was assisting Chende in
committing a crime by helping him to stay in China, Xiong Jin said he was not, because they
“did not even have sufficient food in North Korea.”

        There is nothing in either the IJ’s or the BIA’s opinion that would allow us to conclude
that they considered the circumstances of Xiong Jin’s arrest, detention, and treatment in light of
the situation of North Korean refugees in China when denying Xiong Jin’s asylum claim.
Indeed, neither the IJ nor BIA explicitly referred to the CRS Report in discussing Xiong Jin’s
claim of persecution based on his political opinion, even though “IJs and the BIA have a duty to
explicitly consider any country conditions evidence submitted by an applicant that materially
bears on his claim.” Poradisova, 420 F.3d at 81.

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      We therefore remand to the BIA for reconsideration of Xiong Jin’s application for
asylum, withholding of removal, and CAT relief in light of this order.

      For the foregoing reasons, the petition for review is GRANTED and the proceedings
REMANDED to the BIA for further consideration consistent with this order. As we have
completed our review, any stay of removal that the Court previously granted in this petition is
VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as
moot.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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