         11-797-ag
         Weng-Lin v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A098 350 935
                               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 3rd day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROBERT A. KATZMANN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       QIHUI WENG-LIN,
14                Petitioner,
15
16                            v.                                11-797-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Dehai Zhang, Flushing,
24                                      New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Linda S. Wernery, Assistant
28                                      Director; Theodore C. Hirt,
29                                      Attorney, Office of Immigration
30                                      Litigation, United States Department
31                                      of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is GRANTED.

 5       Petitioner Qihui Weng-Lin, a native and citizen of the

 6   People’s Republic of China, seeks review of a February 11,

 7   2011 order of the BIA, reversing the December 11, 2008

 8   decision of an immigration judge (“IJ”), which granted his

 9   application for asylum.   In re Qihui Weng-Lin, No. A098 350

10   935 (B.I.A. Feb. 11, 2011), rev’g No. A098 350 935 (Immig.

11   Ct. N.Y. City Dec. 11, 2008).       We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case, which we reference only as necessary to

14   explain our decision.

15       Where the BIA does not adopt the IJ’s decision in any

16   part, we review only the decision of the BIA.       See Yan Chen

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).       The

18   applicable standards of review are well-established.         See 8

19   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

20   513 (2d Cir. 2009).

21       The BIA failed to sufficiently articulate its reasoning

22   for concluding that Weng-Lin failed to establish membership

23   in a “particular social group” as required under the

                                     2
 1   Immigration and Nationality Act (“INA”), 8 U.S.C. §

 2   1158(b)(1)(B)(i).    See Beskovic v. Gonzales, 467 F.3d 223,

 3   227 (2d Cir. 2006)   (requiring a certain minimal level of

 4   analysis from agency decisions denying asylum to enable

 5   meaningful judicial review); Ucelo-Gomez v. Gonzales, 464

 6   F.3d 163, 170 (2d Cir. 2006) (requiring the agency to make a

 7   particular social group finding with “sufficient clarity”).

 8   In Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir.

 9   2007), we upheld the BIA’s three-part framework for

10   assessing the validity of a particular social group under

11   the INA.   However, the BIA failed to evaluate Weng-Lin’s

12   social group under this three-part framework or offer more

13   than a cursory analysis of his claim.   As a result, we

14   remand to the BIA so that it may provide a meaningful

15   analysis of Weng-Lin’s social group claim.    See Gonzales v.

16   Thomas, 547 U.S. 183, 186-87 (2006) (per curiam);

17   Ucelo-Gomez, 464 F.3d at 170.

18       Similarly, the BIA failed to address the IJ’s finding

19   that Weng-Lin established a well-founded fear of persecution

20   based on his political opinion, and failed to sufficiently

21   state its justification for finding that Weng-Lin failed to

22   show that he feared persecution on account of an imputed


                                     3
 1   political opinion.     See Beskovic, 467 F.3d at 227; Yueqing

 2   Zhang v. Gonzales, 426 F.3d 540, 547 (2d Cir. 2005).     We

 3   have held that “determining whether a given individual’s

 4   attempt to oppose or alter a government’s economic practices

 5   manifests a political opinion requires examination of the

 6   ‘political context’ in which the dispute took place in order

 7   to determine whether the dispute bears a ‘political

 8   dimension.’” Yueqing Zhang, 426 F.3d at 547.     In reversing

 9   the IJ’s grant of asylum, however, the BIA noted only that

10   “[Weng-Lin] has not established that he retaliated against

11   government corruption.”    Certified Administrative Record

12   (“C.A.R.”) 4.    Because the BIA’s finding is devoid of any

13   reasoning, we remand to the BIA so that it can provide a

14   meaningful analysis of Weng-Lin’s political and imputed

15   political opinion claims, as this Court is unable to

16   determine whether substantial evidence supports BIA’s

17   determination.    See Beskovic, 467 F.3d at 227; Tian-Yong

18   Chen v. INS, 359 F.3d 121, 127-28 (2d Cir. 2004).

19       In addition, the BIA erred by failing to apply clear

20   error review to the IJ’s factual findings concerning the

21   adequacy of the consideration promised in exchange for Weng-

22   Lin’s family’s land.     See De La Rosa v. Holder, 598 F.3d


                                     4
 1   103, 107-08 (2d Cir. 2010); 8 C.F.R. § 1003.1(d)(3)(i).       The

 2   BIA may “not engage in de novo review of findings of fact

 3   determined by an immigration judge.    Facts determined by the

 4   immigration judge, including findings as to the credibility

 5   of testimony, [are] reviewed [by the BIA] only to determine

 6   whether the findings of the immigration judge are clearly

 7   erroneous.”   8 C.F.R. § 1003.1(d)(3)(i).   Although the IJ

 8   found Weng-Lin’s testimony – that the Chinese government

 9   promised to pay his family only one-tenth of land’s fair

10   value – credible, the BIA nevertheless determined, without

11   identifying any error in the IJ’s analysis, that Weng-Lin’s

12   “claim that local official offered his family less money

13   than their land was worth [was] not substantiated in the

14   record.”   C.A.R. 4.   Accordingly, we remand to the BIA to

15   review the IJ’s factual findings under the deferential clear

16   error standard of review.    See Fen Yong Chen v. Bureau of

17   Citizenship and Immigration Servs., 470 F.3d 509, 515 (2d

18   Cir. 2006).

19       Because the BIA also erred in placing the burden of

20   proof on Weng-Lin to demonstrate that he could not relocate

21   within China to avoid persecution, the BIA’s relocation

22   finding cannot support the denial of asylum.    Where, as

23   here, the alleged persecution is government-sponsored,
                                    5
 1   Weng-Lin “enjoys a regulatory presumption that ‘internal

 2   relocation would not be reasonable.’”     Kone v. Holder, 596

 3   F.3d 141, 150 n.8 (2d Cir. 2010); 8 C.F.R. §

 4   1208.13(b)(3)(ii).     The BIA thus erroneously concluded that

 5   Weng-Lin could reasonably relocate to Fuzhou because he

 6   “[was] unable to show that his risk of persecution is

 7   countrywide.”    C.A.R. 4.   While the BIA did note that

 8   Weng-Lin managed to live in Fuzhou without harm for two

 9   years, “the government cannot satisfy its burden to

10   demonstrate that [Weng-Lin] will not be threatened simply by

11   showing that [he] enjoyed periods with no new persecution or

12   that [he] will not perpetually be persecuted in [his] native

13   country.”    Kone, 596 F.3d at 150.   Accordingly, we remand to

14   the BIA to properly apply the regulatory presumption that

15   internal relocation would not be reasonable in evaluating

16   Weng-Lin’s petition.     On remand, we encourage to the BIA to

17   articulate its justification for any relocation finding with

18   reference to the factors listed in 8 C.F.R. § 1208.13(b)(3).

19       Finally, with respect to Weng-Lin’s claim for relief

20   under the Convention Against Torture (“CAT”), the BIA

21   improperly determined that Weng-Lin “[had] not established

22   the existence of any past torture, or fear of future

23   torture.    Nor is there any indication of government
                                     6
 1   acquiescence or involvement.”       C.A.R. 4.    The IJ found Weng-

 2   Lin’s testimony that he was arrested and beaten by Chinese

 3   police credible.    The BIA’s determination that “there is no

 4   indication of government acquiescence or involvement,” id.,

 5   without identifying any error in the IJ’s analysis,

 6   constitutes an impermissible alternative factual finding.

 7   See De La Rosa, 598 F.3d at 107-08; 8 C.F.R. §

 8   1003.1(d)(3)(i).    Accordingly, on remand, the BIA should

 9   review the IJ’s factual findings under the deferential clear

10   error standard of review.    See Fen Yong Chen, 470 F.3d at

11   515.

12          For the foregoing reasons, the petition for review is

13   GRANTED and the case is REMANDED to the BIA for further

14   proceedings consistent with this order.         As we have

15   completed our review, the pending motion for a stay of

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

17   request for oral argument in this petition is DENIED in

18   accordance with Federal Rule of Appellate Procedure

19   34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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