Qi Wen Xie v. Mukasey
Qi Wen Xie v. Mukasey
Opinion of the Court
SUMMARY ORDER
Petitioner Qi Wen Xie, a citizen of the People’s Republic of China, seeks review of a June 20, 2007 order of the BIA affirming the November 21, 2005 decision of Immigration Judge (“IJ”) Paul A. Defonzo denying Xie’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Qi Wen Xie, No. A 79 307 498 (B.I.A. June 20, 2007), ajf’g No. A 79 307 498 (Immig.Ct.N.Y.City, Nov. 21, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007)(en banc). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005). We review de novo questions of law and the application of law to undisputed fact. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).
Xie argues that the IJ’s adverse credibility determination was not supported by substantial evidence. We are not persuaded, however, that the record compels a finding contrary to the agency’s in this case. Even if Xie was credible, his family-planning claim, which was based solely on his wife’s alleged forced sterilization, fails under this Court’s ruling in Shi Liang Lin, 494 F.3d at 305. See Gui Yin Liu v. INS, 508 F.3d 716, 720, 723 (2d Cir. 2007). A petitioner whose spouse has been forcibly sterilized may still establish eligibility for relief if he himself demonstrated “other resistance” to China’s family-planning policies and either suffered past persecution or has a well-founded fear of future persecution on account of that resistance. See 8 U.S.C. § 1101(a)(42). However, Xie has never argued that he suffered past persecution or feared future persecution on account of any “other resistance” he may have demonstrated. Moreover, the factual record in this case was “adequately developed” with respect to the
However, remand is required on Xie’s religious persecution claim.
Furthermore, the two Department of State reports in the record indicate that Catholics are subject to severe mistreatment in China. Yet, both the IJ and the BIA failed to address this material evidence.
For the foregoing reasons, the petition for review is DENIED in part and GRANTED in part. The BIA’s decision is VACATED in part, and the ease REMANDED for further proceedings consistent with this order. As we have 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 DISMISSED 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(b).
. The IJ’s adverse credibility determination did not extend to Xie's religious persecution claim. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
. It is possible that the agency concluded that it did not need to address such evidence where it had concluded that Xie lacked any subjective fear of persecution on the basis of his religion. Absent an adverse credibility finding with respect to Xie's testimony concerning his religious practices, however, the agency was required to consider all of the material evidence in the record. See Paul, 444 F.3d 148, 156-57.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.