Zhang v. Gonzales, Docket No. 02-4533.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtSotomayor
Citation426 F.3d 540
PartiesYueqing ZHANG, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> United States Attorney General, Respondent.
Docket NumberDocket No. 02-4533.
Decision Date13 October 2005
426 F.3d 540
Yueqing ZHANG, Petitioner,
v.
Alberto GONZALES,* United States Attorney General, Respondent.
Docket No. 02-4533.
United States Court of Appeals, Second Circuit.
Argued: April 28, 2005.
Decided: October 13, 2005.

Page 541

Jeffrey C. Bloom, Jeffrey C. Bloom, P.C., Flushing, New York, for the petitioner.

Christopher J. Christie, United States Attorney, District of New Jersey (Susan Handler-Menahem, Assistant United States Attorney, on the brief), Newark, NJ, for the respondent.

Before: SOTOMAYOR, PARKER, and HALL, Circuit Judges.

SOTOMAYOR, Circuit Judge.


Yueqing Zhang petitions for review of an August 28, 2002 order of the Board of Immigration Appeals ("BIA") affirming without opinion an August 23, 2001 order of an Immigration Judge ("IJ") denying Zhang's claims for asylum under 8 U.S.C. § 1158(a) and withholding of removal under 8 U.S.C. § 1231(b)(3).1 Of relevance to this appeal, the IJ denied Zhang's claims for asylum and statutory withholding

Page 542

of removal on the ground that Zhang's opposition to extortion by corrupt government officials in his home city did not constitute "political opinion" within the meaning of 8 U.S.C. §§ 1101(a)(42) and 1231(b)(3)(A). We grant the petition for review and remand for reconsideration of Zhang's claims because retaliation for opposition to government corruption may, in appropriate circumstances, constitute persecution on account of political opinion within the meaning of those statutes.

BACKGROUND

Zhang's claims for relief, as set forth in his written application and his hearing testimony, were based primarily on his opposition to corruption among local government officials in Tianjin City, China. In May of 1997, Zhang began to help run his father's private auto parts business in Tianjin. Local government officials from the Tax Bureau and the Bureau of Industry and Commerce extorted approximately 9000 Yuan Renminbi ("RMB") from the company in December 1997 and January 1998, demanding payments on various transparent pretexts.1 According to Zhang, such extortion of privately-owned businesses was common in Tianjin, and his father had previously complied with similar demands. Zhang disagreed with the decision to make the payments, but his father warned him that failure to make them could lead to retaliation by government officials and closure of the business. In May of 1998, a few months after Zhang took over management of the company from his ailing father, an official from the Tax Bureau demanded an additional 6000 Yuan RMB as a putative loan to defray the expense of the official's cousin's wedding. Zhang refused to make the loan, angering the official. The Taxation Bureau subsequently closed Zhang's business for a month-long audit in July of 1998, causing him to lose business.

Zhang testified that by the end of 1998 he was forced to pay government officials 29,000 Yuan RMB on various other pretexts. Frustrated with this extortion, Zhang drafted a letter of protest to the mayor of Tianjin in January of 1999, alleging that the Tax Bureau, the Bureau of Industry and Commerce, and the Public Security Bureau were riddled with corruption. He then solicited support from other local business owners, three of whom added their signatures to the letter. Zhang claimed that after the four businessmen sent the letter, the officials retaliated against the signatories' companies. Zhang's company lost its tax registration license and a license issued by the Bureau of Industry and Commerce, forcing its closure; the other three companies also faced retaliation from the government in the form of fines or forced closures. For the next six months, Zhang sought in vain to obtain new permits that would enable him to resume business. On August 8, 1999, he obtained a meeting with Guowen Rei, an official at the Bureau of Industry and Commerce who was also, Zhang later learned, the nephew of the mayor and general secretary of the Communist Party in Tianjin. Rei asked Zhang for 9,900 Yuan RMB for his child's schooling. Zhang refused and explained that if Rei did not allow Zhang's company to reopen, Zhang would have no means to survive. Rei called the police, who forcibly removed Zhang from the building and transported him to the local police station. Zhang explained to the police that Guowen Rei had tried to extort money from him and the police demanded that he produce evidence to substantiate the charge. When Zhang said he was unable to do so, the police accused him of making false charges

Page 543

and then beat, kicked and shocked him. Zhang was then detained for fifteen days for having disrupted the functioning of a government office.

Upon his release, Zhang consulted several lawyers, all of whom declined to help him. In September of 1999, Zhang wrote a letter to the official Tianjin newspaper repeating his charges of widespread local corruption and charging that extortion of business owners was common throughout China. The newspaper did not publish the letter. Instead, Zhang received in response a letter from a reporter telling him that the editor would not publish a critique of public officials. The reporter advised Zhang to be careful before taking further action and wished him well, but also told him that he would forward the letter to the Public Security Bureau "for the top leader to read." In October of 1999, officials of the Public Security Bureau and the Bureau of Industry and Commerce came to Zhang's home. After learning that Zhang was not at home, the officials told his wife that they wanted him to come to their office to discuss his "opinion regarding ... them." Warned by his wife, Zhang did not return home after this incident. An acquaintance, who was a court official, also advised Zhang that he was "in trouble" with the nephew of the mayor and general secretary of the Communist Party in Tianjin and that he had "better not go home" and "better run now." Zhang traveled to Ninjing, where he stayed first with a friend and later in a small hotel. The police continued to look for him at his home in Tianjin. Concerned that he could not evade public security authorities indefinitely without proper identification, Zhang fled to the United States in May of 2000.

Once here, Zhang participated in the activities of an organization variously identified as either the China Refugee Council or the China Refugee Committee, which is opposed to one-party Communist rule in China. He learned from his wife that public security officials continued to visit his home. According to an October 2000 letter from Zhang's wife, another signatory of Zhang's original letter to the mayor made further appeals to authorities in Beijing and was subsequently imprisoned for Falun Gong membership. In July of 2001, Zhang's wife informed him in a letter that public security officials had returned to his house and taken away letters and photos Zhang had sent her regarding his political activities; these officials told his wife that they knew that he was colluding with "reactionary forces abroad to attack the Chinese Communist Party and Central Committee." The police treated his wife roughly during this episode.

At the conclusion of Zhang's hearing, the IJ delivered a brief oral decision denying all of Zhang's claims for relief, which we discuss in detail below. Zhang appealed the denial of his claims to the BIA, which affirmed without opinion the results of the IJ's decision pursuant to the then-applicable regulation, 8 C.F.R. § 3.1(a)(7) (2002).2 This timely petition for review followed.

DISCUSSION

1. Standard of review

Because the BIA summarily affirmed the IJ's decision, we review the decision of the IJ directly. Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir.2005). The IJ's findings of fact are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005). We review de novo the IJ's application of legal principles to undisputed facts. Ramsameachire v. Ashcroft, 357 F.3d 169, 178

Page 544

(2d Cir.2004); Guan Shan Liao v. United States DOJ, 293 F.3d 61, 66 (2d Cir.2002). Where application of the law rests on an interpretation of an ambiguous provision of the Immigration and Nationality Act ("INA") or its implementing regulations, we defer to the BIA's settled and reasonable view. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We do not, however, extend Chevron deference to the BIA's affirmance without opinion of an IJ decision construing the INA. Shi Liang Lin v. United States DOJ, 416 F.3d 184, 190-91 (2d Cir.2005). An IJ's interpretation of ambiguous provisions of the INA is entitled no more deference than the inherent persuasiveness of the IJ's view commands. See id. at 191 (citing Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).

2. The "on account of" requirement

In order to qualify for asylum, an applicant must establish that he or she meets the statutory definition of a "refugee" contained in 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1) (2000)3; 8 C.F.R. § 208.13(a) (2001) ("The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in [8 U.S.C. § 1101(a)(42)]."); see also Islami, 412 F.3d at 394-95. A "refugee" is defined in relevant part as a person who is unable or unwilling to return to his or her native country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."4 8 U.S.C. § 1101(a)(42)(A). Similarly, an applicant will qualify for withholding of removal only upon a finding that it is more likely than not that "the alien's life or freedom would be threatened [upon removal to a country] . . . because of the...

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512 practice notes
  • Xiao Xing Ni v. Gonzales, Docket No. 04-0042-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2007
    ...Ni has pressed no meaningful challenge to the denial of her CAT claim; so any challenge is waived. Cf. Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d In virtually all cases, the conclusion that substantial evidence supports the IJ's decision would end our inquiry; our review of an IJ......
  • Bah v. Mukasey, Docket No. 07-1715-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 11, 2008
    ...mutilation. Accordingly, we deem any such argument unexhausted and waived. Lin Zhong, 480 F.3d at 121-22; Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). These portions of the petitions for review must therefore be dismissed. The BIA is, of course, free to conside......
  • U.S. v. Preacely, Docket No. 09-2580-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 21, 2010
    ...where, as here, Sanchez is far from explicit in overturning this Circuit's precedent if it did in fact do so. See Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005) ("Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal&qu......
  • Gross v. Rell, Docket No. 08-2626-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 27, 2009
    ...I'll enter the order. Gross does not address this issue in his principal brief. This constitutes waiver. See, e.g., Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Gross refers to the emotional distress claims in his reply brief and points out that his arguments about them were rai......
  • Request a trial to view additional results
503 cases
  • Xiao Xing Ni v. Gonzales, Docket No. 04-0042-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2007
    ...Ni has pressed no meaningful challenge to the denial of her CAT claim; so any challenge is waived. Cf. Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d In virtually all cases, the conclusion that substantial evidence supports the IJ's decision would end our inquiry; our review of an IJ......
  • Bah v. Mukasey, Docket No. 07-1715-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 11, 2008
    ...mutilation. Accordingly, we deem any such argument unexhausted and waived. Lin Zhong, 480 F.3d at 121-22; Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). These portions of the petitions for review must therefore be dismissed. The BIA is, of course, free to conside......
  • U.S. v. Preacely, Docket No. 09-2580-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 21, 2010
    ...where, as here, Sanchez is far from explicit in overturning this Circuit's precedent if it did in fact do so. See Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005) ("Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal") (quot......
  • Gross v. Rell, Docket No. 08-2626-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 27, 2009
    ...I'll enter the order. Gross does not address this issue in his principal brief. This constitutes waiver. See, e.g., Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Gross refers to the emotional distress claims in his reply brief and points out that his arguments about them were rai......
  • Request a trial to view additional results

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