Ying Chen v. Gonzales
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION of this petition for review of the order of the Board of Immigration Appeals (“BIA”), IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition for review is GRANTED, the BIA’s order is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this order.
Petitioner Ying Chen (“Chen”) petitions for review of an order of the BIA affirming the decision of an Immigration Judge (“IJ”) ordering his removal to China and denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the facts and procedural history of the case.
We review an IJ’s factual findings under the substantial evidence standard, and, as such, “a finding will stand if it is supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000)). In order to be eligible for asylum, an applicant must show that he is a refugee by “establishing that he is unable or unwilling to return to [his home country] because he experienced past persecution or has a well-founded fear of persecution on account of’ one of five enumerated grounds: “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); see Liao v. United States Dep’t of Justice, 293 F.3d 61, 66 (2d Cir. 2002).
In the present case, the IJ’s decision was not supported by substantial evidence. The inconsistencies in Chen’s testimony cited by the IJ lend no support to the adverse credibility determination because: (1) Chen maintained that his father treated his injuries in the same manner as he did in a colloquy that was fraught with translation problems; (2) the assumption that Chen’s mother would not have him distribute Falun Gong flyers, yet value his physical safety, is conjectural; (3) although the envelope from Chen’s mother contained some sort of return address, it was not
For these reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for proceedings consistent with this order. Having 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 DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).
Reference
- Full Case Name
- Ying CHEN v. Alberto R. GONZALES, Attorney General
- Status
- Published