Yang v. McElroy, PETITIONER-APPELLANT

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtPer Curiam
Citation277 F.3d 158
Decision Date30 October 2001
Docket NumberPETITIONER-APPELLANT,RESPONDENTS-APPELLEES,Docket No. 98-4391
Parties(2nd Cir. 2002) QUN YANG,, v. EDWARD J. MCELROY, DISTRICT DIRECTOR FOR THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; ANTHONY MOSCATO, DIRECTOR OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; PAUL W. SCHMIDT, CHAIRMAN OF THE BOARD OF IMMIGRATION APPEALS, Argued:

Page 158

277 F.3d 158 (2nd Cir. 2002)
QUN YANG, PETITIONER-APPELLANT,
v.
EDWARD J. MCELROY, DISTRICT DIRECTOR FOR THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; ANTHONY MOSCATO, DIRECTOR OF THE EXECUTIVE

Page 159

OFFICE FOR IMMIGRATION REVIEW; PAUL W. SCHMIDT, CHAIRMAN OF THE BOARD OF IMMIGRATION APPEALS, RESPONDENTS-APPELLEES.
Docket No. 98-4391
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued: October 30, 2001
Decided January 7, 2002

Petition for review of a decision of the Board of Immigration Appeals denying an application for political asylum. The case is remanded to the Board of Immigration Appeals for the limited purpose of enabling a motion to consider changed circumstances in China since 1993.

Page 160

Craig Wilson, Wilson & Associates, P.C., "Charles Christophe, on the brief", New York, N.Y., Attorneys for Petitioner-Appellant.

Sean H. Lane, Assistant United States Attorney, "John Ashcroft, United States Attorney General, Mary Jo White, United States Attorney, Kathy S. Marks, Jeffrey S. Oestericher, Assistant United States Attorneys, on the brief", for Respondents-Appellees.

Before: McLaughlin and Pooler, Circuit Judges, Sand, District Judge.*

Per Curiam

This is a petition for review of a decision of the Board of Immigration Appeals ("BIA" or "Board" denying appellant Qun Yang's applications for political asylum. Appellant maintains that the BIA erred when it affirmed the Immigration Judge's ("IJ")finding that he had not sustained his burden of showing a well-founded fear that he would be subject to persecution in the People's Republic of China ("China")because of his political and other actions taken before and after his illegal departure from China to the United States. We have jurisdiction to consider the petition under 8 U.S.C. § 1105a.1

I. FACTS

Appellant, a citizen of China, attempted to enter the United States illegally in the Spring of 1993. Upon being promptly detained at John F. Kennedy International Airport, Yang was served with a notice charging that he was subject to exclusion pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a) (1994). On June 3, 1993, appellant requested political asylum and at hearings held on July 27, 1993 and January 18, 1994, an IJ heard evidence regarding his request. In the course of the hearing, Yang reported the history of his political activities in China and in the United States as well as the negative repercussions such activities engendered.

Specifically, Yang described a period during his studies at the Lian Giang secondary school during the Spring of 1989 (immediately prior to the events at Tiananmen Square) where he organized and led pro- democracy protests in the Fujian province. Appellant explained that he encouraged approximately one hundred students to attend pro-democracy protests at Fuzhou University on May 4, 1989 and led others in protest outside a government building on May 16, and May 24, 1989. At these protests, appellant shouted slogans and held up posters in support of democracy. Further, appellant testified that he helped collect money to fund the student protests in Beijing from the Qingzi High

Page 161

School on April 29, 1989 and from another school on June 4, 1989.

As a consequence of such actions, appellant's school requested that he make a confession at a denouncing meeting held at the conclusion of the spring semester in 1989. Appellant refused to do so and on September 4, 1989 was discharged from school. The notice of discharge stated that appellant had violated school rules by participating in democracy protests, had a record of absenteeism related to these protests (the report indicated that appellant had missed 157 consecutive classes), and had associated with outsiders. Following his discharge from school, appellant spent two weeks at his parents' house and then left for the city of Fuzhou. Two weeks later, appellant learned that the Public Security Bureau had visited his house and ordered him to report to the Bureau within two weeks. Appellant did not comply and, instead, remained in Fuzhou for three and a half years until February 1993. During this time, appellant worked in a private refrigerator factory. Appellant testified that due to fear of government authorities, he worked under an alias and did not return to his parents' house. He did, however, call his family by public telephone one or two times a month during this period.

In March 1993, appellant left China illegally, passing through Singapore and Korea prior to his arrival in United States in May 1993.2 In October 1993, during the pendency of his asylum request, Yang joined the Chinese Alliance for Democracy ("CAD"). As a member of the CAD, Yang participated in a demonstration in front of the Chinese Consul during which he again held up posters and shouted slogans in support of democracy. Appellant also published an article in the Oriental News on December 13, 1993 critical of the Communist Party in China.

In an oral opinion rendered on January 18, 1994 following Yang's testimony, the IJ denied Yang's application for asylum and withholding of deportation. On November 25, 1998, the BIA affirmed the IJ's decision. The BIA agreed with the IJ that appellant's discharge from school and the Public Service Bureau's subsequent investigation of him did not amount to past persecution. Further, relying largely on the Department of State's 1993 Country Report (and declining to consider the dissenting judge's reference to a more recent Country Report), the BIA affirmed the IJ's finding that appellant's fear of future persecution in China was not objectively reasonable.

The Immigration and Naturalization Service ("INS") although primarily urging affirmance of the Board's decision to deny asylum, suggested in its brief to this Court, as it did in Asani v. INS, 154 F.3d 719 (7th Cir. 1998), that the proper route for appellant to follow is to seek further review of his asylum application based on changed circumstances in China. In Asani, the the Seventh Circuit ordered a limited remand to enable appellant to pursue this remedy by filing a motion for such review while...

To continue reading

Request your trial
60 practice notes
  • U.S. v. Lopez, Docket No. 03-1476-CR.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 4, 2006
    ...held that "IJs have special responsibilities towards aliens in removal proceedings." Copeland, 376 F.3d at 73; see also Yang v. McElroy, 277 F.3d 158, 162 & n. 3 (2d Cir.2002) (noting that, as administrative law judges, IJs have special responsibilities to develop the record). Moreover, alt......
  • Quintero v. Garland, No. 19-1904
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 26, 2021
    ...an immigration judge "is not merely the fact finder and adjudicator but also has an obligation to establish the record." Yang v. McElroy , 277 F.3d 158, 162 (2d Cir. 2002) (citing § 1229a(b)(1) ); see also Lacsina Pangilinan v. Holder , 568 F.3d 708, 709 (9th Cir. 2009) (stating that the im......
  • Castañeda-Castillo v. Holder, No. 09–1847.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 17, 2013
    ...circumstances in the petitioner's home country supported a finding of a well-founded fear of future persecution); and Yang v. McElroy, 277 F.3d 158, 164 (2d Cir.2002). Therefore, there is countervailing authority, at least from the Second and Seventh Circuits, that effectively undermines th......
  • U.S. v. Copeland, No. 02-1704.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 16, 2004
    ...an Article III judge, is not merely the fact finder and adjudicator but also has an obligation to establish the record." Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002); Secaida-Rosales v. INS, 331 F.3d 297, 306 (2d Cir.2003) ("IJ has an affirmative obligation to help establish and develop......
  • Request a trial to view additional results
60 cases
  • U.S. v. Lopez, Docket No. 03-1476-CR.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 4, 2006
    ...held that "IJs have special responsibilities towards aliens in removal proceedings." Copeland, 376 F.3d at 73; see also Yang v. McElroy, 277 F.3d 158, 162 & n. 3 (2d Cir.2002) (noting that, as administrative law judges, IJs have special responsibilities to develop the record). Moreover, alt......
  • Quintero v. Garland, No. 19-1904
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 26, 2021
    ...an immigration judge "is not merely the fact finder and adjudicator but also has an obligation to establish the record." Yang v. McElroy , 277 F.3d 158, 162 (2d Cir. 2002) (citing § 1229a(b)(1) ); see also Lacsina Pangilinan v. Holder , 568 F.3d 708, 709 (9th Cir. 2009) (stating that the im......
  • Castañeda-Castillo v. Holder, No. 09–1847.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 17, 2013
    ...circumstances in the petitioner's home country supported a finding of a well-founded fear of future persecution); and Yang v. McElroy, 277 F.3d 158, 164 (2d Cir.2002). Therefore, there is countervailing authority, at least from the Second and Seventh Circuits, that effectively undermines th......
  • U.S. v. Copeland, No. 02-1704.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 16, 2004
    ...an Article III judge, is not merely the fact finder and adjudicator but also has an obligation to establish the record." Yang v. McElroy, 277 F.3d 158, 162 (2d Cir.2002); Secaida-Rosales v. INS, 331 F.3d 297, 306 (2d Cir.2003) ("IJ has an affirmative obligation to help establish and develop......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT