Chen v. Gonzales

• Decision Date: 02 August 2005
• Docket Number: Docket No. 04-0591-AG.
• Citation: 417 F.3d 268
• Parties: Yan CHEN, Petitioner, v. Alberto GONZALES, Attorney General,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 268

417 F.3d 268

Yan CHEN, Petitioner, v. Alberto GONZALES, Attorney General,¹ Respondent.

Docket No. 04-0591-AG.

United States Court of Appeals, Second Circuit.

Argued: May 31, 2005.

Decided: August 2, 2005.

Thomas V. Massucci, New York, NY, for Petitioner.

Sara Winslow, Assistant United States Attorney for the Northern District of California (Joann M. Swanson, Chief, Civil Division; Kevin V. Ryan, United States Attorney, on the brief), San Francisco, CA, for Respondent.

Before: McLAUGHLIN, STRAUB, and HALL, Circuit Judges.

STRAUB, Circuit Judge.

Petitioner Yan Chen requests review of the January 29, 2004, decision of the Board of Immigration Appeals ("BIA" or "Board") dismissing his appeal of an August 2, 2002, decision of the Immigration Judge denying his application for asylum, withholding of removal, and protection under Article 3 of the United Nations Convention Against Torture ("CAT"). Because the Board failed to consider important evidence supporting Chen's petition, namely, a country condition report corroborating Chen's claims, we grant the petition for review, vacate the decision of the Board, and remand the case to the Board for further proceedings consistent with this opinion.

BACKGROUND

In his asylum application, Yan Chen ("Chen"), a native and citizen of the People's Republic of China, alleges that he has been practicing Christianity throughout his life and that, prior to his departure from China in May 2001, he suffered various abuses by the Chinese government on account of his religion. At the hearing on his application, Chen testified that government officials came to his church on August 23, 2000, and warned members "to dismiss and leave the area." According to Chen's testimony, the officials then destroyed Christian song books and Bibles and, ultimately, destroyed the church. They also warned members "not to have this type of gatherings [sic] in the future" and indicated that the church members "should go to only those [gatherings] that are designated by the government." Chen claims that after this incident, church members congregated at members' houses. Chen testified that on January 18, 2001, while he was handing out flyers containing religious messages in a public area, a church member informed him that the government had discovered the church's alternative meeting places. Chen later learned that some church members and the church's preacher had been arrested. Chen also testified that he learned that his name is on the Chinese government's list of those who have handed out verboten religious flyers. Finally, Chen testified that some time after January 18, 2001, government officials came to Chen's house looking for him. Chen subsequently fled China, entered the United States, and applied for asylum, withholding of removal, and protection under the CAT.

On August 2, 2002, Immigration Judge Robert D. Weisel ("IJ") denied Chen's petition. The IJ found that Chen was not credible and that photographs he submitted in support of his application did not support his testimony. In light of these findings, the IJ rejected Chen's claims of past persecution and fear of future persecution. The IJ also found, in the alternative, that, even assuming Chen was credible, the conduct to which he testified did not rise to the level of persecution and did not establish a well-founded fear of future persecution.

Chen appealed the IJ's decision to the BIA and, on January 29, 2004, the BIA dismissed Chen's appeal in a per curiam opinion. The BIA held: "Even assuming that [Chen] is credible, we agree with the Immigration Judge that [he] has not met his burden of showing that he was persecuted in the past or has a well-founded fear of future persecution." The BIA recited Chen's testimony that he had never been arrested or detained because of his religion, that the Chinese government had his name on a list of people who had been handing out religious flyers, that officials from the "Public Security Bureau" looked for him at his home, but did not find him, that he was not arrested or detained between when the officials came looking for him and when he fled China, and held that, "[b]ased on the foregoing, we find that the respondent has not met his burden of showing that he was persecuted in the past or has a well-founded fear of future persecution on account of his religion." The BIA found further that Chen also necessarily failed to establish eligibility for withholding of removal.²

Chen now appeals, arguing that the BIA erred in concluding that he failed to establish a well-founded fear of future persecution.³ Chen argues that the BIA failed to consider the country condition report he submitted in support of his claim, and that his testimony, which the BIA assumed to be credible, together with the country condition report compel the conclusion that he possesses a well-founded fear of future persecution.

DISCUSSION

To establish eligibility for asylum, a petitioner must show that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of future persecution on account of one of these grounds. See 8 U.S.C. § 1101(a)(42); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam). "An alien's fear may be well-founded even if there is only a slight, though discernible, chance of persecution." Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000). "Once an applicant establishes eligibility for asylum, however, the decision whether to grant a particular application is. . . within the discretion of the Attorney General." Id. (internal quotation marks omitted). To establish entitlement to withholding of removal, a mandatory form of relief, an applicant must satisfy the higher burden of demonstrating that it is more likely than not that his life or freedom would be threatened on account of one of the five bases for asylum if he is deported. See 8 U.S.C. § 1231(b)(3); Diallo, 232 F.3d at 284-85.

We review the factual findings of the immigration court for "substantial evidence." See Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir.2005). Under this standard, the immigration court's factual findings will be upheld if supported by "reasonable, substantial and probative evidence in the record." Id. "Substantial evidence" is "more than a mere scintilla" and "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir.2001) (internal quotation marks omitted). Questions of law regarding "`what evidence will suffice to carry any asylum applicant's burden of proof'" are reviewed de novo. See Islami, 412 F.3d at 396 (quoting Qiu v. Ashcroft, 329 F.3d 140, 146 n. 2 (2d Cir.2003)). "[I]f the IJ or BIA were to use an `inappropriately stringent standard when evaluating an applicant's testimony,' we would treat that as a legal, rather than factual error." Id. (quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)).

When the BIA issues an opinion, "the opinion becomes the basis for judicial review of the decision of which the alien is complaining." Niam v. Ashcroft, 354 F.3d 652, 655 (7th Cir.2004) (citing INS v. Ventura, 537 U.S. 12, 15, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)). Where the BIA adopts the decision of the IJ and merely supplements the IJ's decision, however, we review the decision of the IJ as supplemented by the BIA. Id. at 655-66; see also Secaida-Rosales, 331 F.3d at 305 (holding that we review the decision of the IJ directly where the BIA "summarily affirm[s]" and "adopt[s]" an IJ's decision); Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003) (holding that "only if the BIA expressly adopts or defers to a finding of the IJ, will we review the decision of the IJ"). Here, the BIA did not adopt the decision of the IJ to any extent, nor is the BIA's per curiam opinion merely supplemental. Moreover, the BIA indicated explicitly that it was deciding the case on the assumption, contrary to the IJ's finding, that Chen's testimony was credible. Accordingly, we review the decision of the BIA. See Yahong Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir.2005) (reviewing decision of the BIA in similar circumstances). In this posture, we may not rest our holding on the IJ's credibility findings, because the BIA did not affirm and adopt those findings. See Jin Yu Lin v. DOJ, 413 F.3d 188, 191 n.4 (2d Cir.2005) ("Because the BIA did not affirm [the IJ's alternative holding that the petitioner was ineligible for asylum], however, and instead relied on the IJ's adverse credibility determination, th[e former] aspect of the IJ's decision does not constitute grounds for vacatur or reversal."); Kayembe, 334 F.3d at 235 (holding that where the BIA did not adopt or defer to the IJ's finding on credibility, we "must proceed as if [the petitioner's] testimony were credible and determine whether the BIA's decision is supported by substantial evidence in the face of his assumed (but not determined) credibility"); Gonzalez v. INS, 77 F.3d 1015, 1023 (7th Cir.1996) ("Since the BIA did not adopt any of the immigration judge's reasoning in this case, [the petitioner's] challenge to his assessment of her credibility is irrelevant to our review of the BIA decision and barred on appeal."). In reviewing the decision of the BIA, we assume, but do not determine, Chen's credibility as to his testimony concerning the events of his past and as to his subjective fear of future persecution.

We find significant error in the BIA's failure to consider the country condition report submitted by Chen, which corroborates his testimony concerning his subjective fear of future persecution based on his religion, which we assume to be credible. The BIA, when considering an appeal, "must actually consider the evidence and argument that a party presents." Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001) (internal quotation marks...