19-3762 Lin v. Garland BIA Sponzo, IJ A206 364 970 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of January, two thousand twenty- two.

PRESENT: PIERRE N. LEVAL, GERARD E. LYNCH, SUSAN L. CARNEY, Circuit Judges. _____________________________________

QI FA LIN, Petitioner,

v. 19-3762 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gerald Karikari, Esq., Karikari & Associates, P.C., New York, NY.

FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Brendan P. Hogan, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED.

Petitioner Qi Fa Lin, a native and citizen of China,

seeks review of an October 25, 2019 decision of the BIA

affirming an April 17, 2018 decision of an Immigration Judge

(“IJ”) denying asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). In re Qi Fa

Lin, No. A 206-364-970 (B.I.A. Oct. 25, 2019), aff’g No. A

206-364-970 (Immig. Ct. N.Y. City Apr. 17, 2018). We assume

the parties’ familiarity with the underlying facts and

procedural history.

An asylum applicant must demonstrate that she suffered

“persecution or [has] a well-founded fear of persecution on

account of race, religion, nationality, membership in a

particular social group, or political opinion.”

(a)(42). If the applicant suffered persecution in the

past, a well-founded fear of future persecution is presumed. 2 8 C.F.R. 1208.13(b)(1).

Here, the agency concluded that Lin did not establish

past harm rising to the level of persecution because, although

he was detained and beaten during his detention, there was

“no indication” that he “suffered any significant injuries or

required any medical attention.” Because that alone is not

a valid basis for concluding that an asylum applicant did not

suffer persecution, we remand for further consideration or

explanation.

Lin was arrested and detained for three days for

distributing religious fliers. During Lin’s detention, the

police beat and strangled him while interrogating him in an

effort to extract the identities of other Christians. Those

beatings left him “bruised.” Although “[w]e have never held

that a beating that occurs within the context of an arrest or

detention constitutes persecution per se,” Jian Qiu Liu v.

Holder,

(2d Cir. 2011), we have cautioned

that the BIA must be “keenly sensitive to the fact that a

‘minor beating’ or, for that matter, any physical degradation

designed to cause pain, humiliation, or other suffering, may

rise to the level of persecution if it occurred in the context

3 of an arrest or detention on the basis of a protected ground,”

Beskovic v. Gonzales,

, 226 & n.3 (2d Cir. 2006).

Because even a minor beating may rise to the level of

persecution under these circumstances, the lack of

significant injury is not alone a basis for concluding that

a beating during a detention for engaging in religious

activities does not constitute persecution. Moreover, where,

as here, the asylum applicant “suffer[ed] physical abuse and

violence at the hands of government agents . . . [t]hat

evidence, if credible, may preclude a finding that the conduct

is mere harassment that does not as a matter of law rise to

the level of persecution, for violent conduct generally goes

beyond the mere annoyance and distress that characterize

harassment.” Ivanishvili v. U.S. Dep’t of Justice,

(2d Cir. 2006).

The BIA relied largely on Jian Qiu Liu to conclude that

Lin did not establish past persecution, but that case did not

involve “mistreatment during . . . detention.”

. Rather, the petitioner in that case sustained minor

injuries during a pre-detention altercation with government

officials.

In the instant case, Lin not only alleged

4 that he was beaten and strangled during his time in custody,

but that the beatings were intended to wring out the names of

fellow church members, which more strongly points towards

persecution. See Beskovic,

(holding that

even minor mistreatment “can take on an entirely different

character when officially inflicted on an individual while

detained on account of protected grounds”).

The agency erred, therefore, in treating the extent of

Lin’s injuries as dispositive. Since that is the sole reason

the agency gave for its conclusion that Lin did not suffer

past persecution, we must remand to the agency for further

consideration or explanation.

For the foregoing reasons, the petition for review is

GRANTED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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