17-4101 Chen v. Barr BIA Bukszpan, IJ A200 731 788

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 16th day of July, two thousand twenty. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DEBRA ANN LIVINGSTON, 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 WEN KAI CHEN, 14 15 Petitioner, 16 17 v. 17-4101 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Nataliya I. Gavlin, New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Derek C. Julius, 1 Assistant Director; Anthony O. 2 Pottinger, Trial Attorney, Office 3 of Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is GRANTED.

10 Petitioner Wen Kai Chen, a native and citizen of the

11 People’s Republic of China, seeks review of a December 8,

12 2017 decision of the BIA affirming a March 15, 2017 decision

13 of an Immigration Judge (“IJ”) denying Chen’s application for

14 asylum, withholding of removal, and relief under the

15 Convention Against Torture (“CAT”). In re Wen Kai Chen, No.

16 A 200 731 788 (B.I.A. Dec. 8, 2017), aff’g No. A 200 731 788

17 (Immig. Ct. N.Y. City Mar. 15, 2017). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 in this case.

20 We have reviewed the IJ’s decision as supplemented by

21 the BIA. See Yan Chen v. Gonzales,

(2d

22 Cir. 2005). We review factual findings under the substantial

23 evidence standard and questions of law and the application of

24 law to undisputed facts de novo. See

(b)(4); 2 1 Yanqin Weng v. Holder,

(2d Cir. 2009).

2 In order to establish his eligibility for asylum, Chen

3 had to show that he (1) engaged in “other resistance” to

4 China’s family planning policy and (2) suffered harm rising

5 to the level of persecution or had a well-founded fear of

6 suffering such harm as a direct result of that resistance.

7 See

(a)(42); Shi Liang Lin v. U.S. Dep’t of

8 Justice,

(2d Cir. 2007) (en banc). We

9 address both elements in turn.

10 Other Resistance

11 “[T]he phrase ‘other resistance’ is ambiguous and leaves

12 room for the BIA’s reasonable interpretation where the

13 applicant relies on something beyond his spouse’s or

14 partner’s persecution.” Lin,

. Under

15 Chevron, we defer to the agency’s reasonable interpretation

16 of ambiguous provisions of the Immigration and Nationality

17 Act. See

; Chevron U.S.A. Inc. v. Nat. Res. Def.

18 Council, Inc.,

, 842–43 (1984). The agency has

19 previously held that “other resistance” to the policy “can

20 ‘cover[] a wide range of circumstances, including expressions

21 of general opposition, attempts to interfere with enforcement

3 1 of government policy in particular cases, and other overt

2 forms of resistance to the requirements of the family planning

3 law.’” Lin,

(quoting Matter of S-L-L-, 24

, 10 (B.I.A. 2006)).

5 Here, the BIA did not independently address whether

6 Chen’s actions amounted to “other resistance.” The IJ, whose

7 decision was adopted by the BIA, ruled that Chen had not

8 engaged in “other resistance” to the family planning policy

9 because the most significant resistance in the record

10 (unauthorized removal of an IUD) was attributable only to

11 Chen’s wife, and Chen had engaged in “one outburst in the

12 heat of the moment” directed to family planning officials,

13 without “decry[ing] the policy more widely” or “mak[ing] any

14 other attempt to undermine the policy.” But the IJ did not

15 explain why a single outburst, or one made only “in the heat

16 of the moment” and directed only to the officials carrying

17 out the policy, could not constitute an “overt form of

18 resistance” to the family planning policy. Moreover, even

19 if the IJ had provided a more thorough explanation,

20 “interpretations by individual IJs, even if summarily

21 affirmed by the BIA, are not sufficient to constitute the

4 1 agency’s interpretation,” and are not accorded Chevron

2 deference. Ucelo-Gomez v. Gonzales,

(2d

3 Cir. 2006).

4 By telling the officers that he believed that the policy

5 was “inhuman” and “killed an innocent life,” Chen made an

6 overt, public expression of his opposition to the policy.

7 Although we have found that some altercations with family

8 planning officials do not constitute “other resistance” to

9 the family planning policy, we have done so under

10 circumstances where the applicant did not express any

11 opposition to the policy. See Chun Bo Dong v. Clement, 247

, 257 (2d Cir. 2007) (altercation with family

13 planning officials who seized the applicant’s cousin did not

14 constitute “other resistance” where applicant did not express

15 any opposition to the family planning policy to the officials,

16 did not indicate that the officials imputed such opposition

17 to him, and testified that he would have acted in the same

18 manner if officials had sought his cousin for reasons

19 unrelated to the policy); see also Mu Ren Zheng v. Holder,

20

(2d Cir. 2012) (applicant had not

21 demonstrated persecution based on “other resistance” to

5 1 family planning policy where he argued with the officials,

2 but “testified repeatedly that the officials would have

3 arrested him even if he had not argued with them”).

4 Accordingly, we remand to permit the BIA to more fully

5 interpret the boundaries of what constitutes “other

6 resistance.” See Chevron, 467 U.S. at 842–43; Lin,

; see also Ucelo-Gomez, 464 F.3d at 169–72

8 (remanding to the BIA so that it might clarify the scope of

9 its own precedent).

10 Persecution

11 “[P]ersecution is an extreme concept that does not

12 include every sort of treatment our society regards as

13 offensive.” Mei Fun Wong v. Holder,

(2d Cir.

14 2011) (internal quotation marks and citation omitted). A

15 valid claim of past persecution may “encompass[] a variety of

16 forms of adverse treatment, including non-life-threatening

17 violence and physical abuse,” but the harm must be more severe

18 than “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice,

19

, 340–41 (2d Cir. 2006) (internal quotation marks

20 and brackets omitted). “‘[T]he difference between harassment

21 and persecution is necessarily one of degree,’” which “must

6 1 be assessed with regard to the context in which the

2 mistreatment occurs.” Beskovic v. Gonzales,

,

3 226 (2d Cir. 2006) (quoting Ivanishvili,

).

4 “The BIA must, therefore, be keenly sensitive to the fact

5 that a ‘minor beating’ or, for that matter, any physical

6 degradation designed to cause pain, humiliation, or other

7 suffering, may rise to the level of persecution if it occurred

8 in the context of an arrest or detention on the basis of a

9 protected ground.” Id.; see also Ivanishvili,

342 (holding that evidence that an applicant has suffered

11 “physical abuse and violence . . . may preclude a finding

12 that the conduct is mere harassment that does not as a matter

13 of law rise to the level of persecution, for violent conduct

14 generally goes beyond the mere annoyance and distress that

15 characterize harassment” (internal citation omitted)). But

16 see Jian Qiu Liu v. Holder,

(2d Cir. 2011)

17 (“We have never held that a beating that occurs within the

18 context of an arrest or detention constitutes persecution per

19 se.”).

20 The IJ reasoned that the beatings Chen experienced did

21 not constitute persecution because they caused only bruises,

7 1 which were treated only with ointment, and Chen did not suffer

2 any “serious or lasting physical or emotional pain or

3 suffering.” The BIA agreed, explaining that Chen’s injuries

4 were less severe than those suffered by the applicant in

5 Beskovic, who was also beaten twice during detention. This

6 reasoning is flawed. First, we have cautioned that lasting

7 injuries are not required to establish persecution,

8 particularly in the context of beatings occurring during

9 detention. See Edimo-Doualla v. Gonzales,

, 283

10 (2d Cir. 2006) (applicant is not required to demonstrate

11 “permanent or serious injury” to establish persecution); see

12 also Beskovic,

. Second, we did not purport

13 to set a floor for the harm that might constitute persecution

14 in Beskovic — to the contrary, we held that “any physical

15 degradation designed to cause pain, humiliation, or other

16 suffering” in the context of detention might constitute

17 persecution and remanded for the agency to reconsider whether

18 the beatings in detention constituted persecution.

at 226. Accordingly, the agency erred in concluding that

20 Chen’s beatings did not constitute persecution simply because

21 they did not result in serious or lasting injuries and were

8 1 less severe than the beatings at issue in Beskovic. We

2 therefore remand to permit the agency to reconsider its

3 decision with respect to whether Chen demonstrated that he

4 had suffered persecution on account of “other resistance” to

5 the family planning policy. See Edimo-Doualla,

284.1

7 For the foregoing reasons, the petition for review is

8 GRANTED. All pending motions and applications are DENIED and

9 stays VACATED.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court 13

1We also remand with respect to Chen’s claim for CAT relief because the IJ relied on Chen’s failure to satisfy his burden for asylum to deny all forms of relief. 9