22-6532 Lin v. Bondi BIA Wright, IJ A094 926 253

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 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 31st day of October, two thousand twenty-five.

PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., MYRNA PÉREZ, Circuit Judges. _____________________________________

JIANCHUAN LIN, Petitioner,

v. 22-6532 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. * _____________________________________

* The Clerk of Court is respectfully directed to amend the caption accordingly. FOR PETITIONER: Jianchuan Lin, pro se, El Monte, CA.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Matthew B. George, Senior Litigation Counsel; 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 pro se Jianchuan Lin, a native and citizen of the People’s Republic

of China, seeks review of a decision of the BIA affirming a decision of an

Immigration Judge (“IJ”) denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). In re Chaun

Lin, No. A 094 926 253 (B.I.A. Oct. 26, 2022), aff’g, No. A 094 926 253 (Immigr. Ct.

N.Y.C. Jan. 24, 2018). We assume the parties’ familiarity with the underlying facts

and procedural history, which we recite only as necessary to explain our decision.

BACKGROUND

Lin claims that he fears persecution and torture based on imputed political

opinion, because the Chinese government believes that he is a supporter of the

2 Falun Gong movement, a religious group that the Chinese government considers

to be anti-government. See Gao v. Gonzales,

(2d Cir. 2005) (“[T]he

question in this case is not whether [Petitioner] was or is a practitioner of Falun

Gong, but whether authorities would have perceived him as such or as a supporter

of the movement because of his activities.”). In support of his claim, Lin offered

testimony and other evidence that Chinese authorities arrested his friend and

attempted to arrest him for distributing Falun Gong flyers in 2007 and 2008, and

though Lin successfully fled China, authorities continued to look for him.

Among other evidence, Lin submitted: (1) extensive testimony that the IJ

found credible, Cert. Admin. Record (“CAR”) at 55, 130–64; (2) a written statement

describing his near-detention by the authorities,

at 177–81; (3) a letter from his

sister corroborating Lin’s account and explaining that the authorities continued to

look for Lin after he fled in 2008,

at 208–16; (4) a letter from the mother of his

friend whom the police did arrest when Lin escaped, describing her son’s torture

at the hands of the authorities,

at 217–27; (5) a letter from Lin’s aunt discussing

the incident in which Lin narrowly escaped persecution and his flight from China,

at 422–26; (6) notices posted by (i) the local village committee and (ii) Lin’s

former employer, which alerted the public that Lin was wanted by the authorities

3 for his involvement with Falun Gong,

at 200–07; and (7) country conditions

reports discussing persecution of Falun Gong adherents in China.

at 250–383.

The IJ found Lin credible but nonetheless found he had not met his burden

to establish a well-founded fear or likelihood of persecution, nor a probability of

future torture, because he failed to corroborate certain aspects of his claim on

which his testimony was vague. The BIA affirmed and adopted the IJ’s reasoning.

LEGAL STANDARDS

Where, as here, “the BIA briefly affirms the decision of an IJ and adopts the

IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.”

Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006) (internal

quotation marks omitted and alteration adopted) (quoting Secaida-Rosales v. INS,

(2d Cir. 2003)). We review fact-finding for “substantial evidence”

and questions of law and application of law to fact de novo. Hong Fei Gao v.

Sessions,

(2d Cir. 2018). “[A]dministrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.”

(b)(4)(B). Further, even if the BIA or IJ makes an

error of law, we may nonetheless deny the petition “if we are ‘confident that the

agency would reach the same result upon a reconsideration cleansed of errors.’”

4 Martinez De Artiga v. Barr,

, 591 (2d Cir. 2020) (quoting Li Hua Lin v.

U.S. Dep’t of Justice,

(2d Cir. 2006)).

Lin concedes that he had not shown past persecution, so he bore the burden

to show a well-founded fear of future persecution.

(b)(1)(B);

(a), (b)(1). To establish such a well-founded fear of persecution, Lin must

show “that he subjectively fears persecution and . . . that his fear is objectively

reasonable.” Ramsameachire v. Ashcroft,

(2d Cir. 2004). A fear is

objectively reasonable “even if there is only a slight, though discernible, chance of

persecution,” Diallo v. INS,

(2d Cir. 2000), but is not objectively

reasonable if it lacks “solid support in the record” and is “speculative,” Jian Xing

Huang v. INS,

(2d Cir. 2005).

An applicant’s testimony “may be sufficient to sustain the applicant’s

burden without corroboration, but only if the applicant satisfies the trier of fact

that the applicant’s testimony is credible, is persuasive, and refers to specific facts

sufficient to demonstrate that the applicant is a refugee.”

(b)(1)(B)(ii). “Where the trier of fact determines that the applicant should

provide evidence that corroborates otherwise credible testimony, such evidence

must be provided unless the applicant does not have the evidence and cannot

5 reasonably obtain the evidence.”

The agency may find an applicant generally

credible but still find that his “testimony may not be sufficient to carry the burden

of persuading the fact finder of the accuracy . . . of crucial facts if he fails to put

forth corroboration that should be readily available.” Wei Sun v. Sessions,

(2d Cir. 2018). If an IJ denies relief “based on the applicant’s failure to

provide reasonably obtainable corroborating evidence,” “the IJ must (1) point to

specific pieces of missing evidence and show that it was reasonably available, (2)

give the applicant an opportunity to explain the omission, and (3) assess any

explanation given.” Pinel-Gomez v. Garland,

, 529 (2d Cir. 2022)

(internal quotation marks omitted) (quoting Wei Sun,

).

Finally, because Lin is pro se, his “submissions . . . must be construed

liberally and interpreted to raise the strongest arguments that they suggest.”

Williams v. Annucci,

(2d Cir. 2018) (quotation marks omitted).

DISCUSSION

The IJ made four errors of law that were not corrected by the BIA. While no

individual error was necessarily severe enough to require remand on its own,

taken together, we cannot be “confident that the agency would reach the same

6 result upon a reconsideration cleansed of errors.” Martinez De Artiga,

.

Accordingly, we grant Lin’s petition and remand to the agency.

First, the agency “totally overlooked” or “seriously mischaracterized” one

of the letters that Lin submitted as evidence and the important facts contained

therein, which constitutes an error of law. See Mendez v. Holder,

(2d Cir. 2009); accord Garcia Carrera v. Garland,

, 11 (2d Cir. 2024). The IJ

dismissed this document as “a letter from someone named Zhang Zung Qiong,”

and never discussed it further. CAR at 57. In fact, that letter from Zhang

Zhongqiong states that it was written by the mother of Lin’s friend, Jiang Yong,

with whom Lin had been distributing flyers on the day that Jiang was arrested and

Lin escaped.

. That letter describes how Jiang had been detained, tortured

for information, and beaten nearly to death, including because Jiang could not give

the police information on Lin’s whereabouts.

at 218–19. That letter is highly

probative of, among other things, the seriousness of the Chinese government’s

interest in pursuing Lin, and the risk that if Lin returned to China he would be

harmed at a level that rises to persecution, if not torture, based on his association

with Falun Gong. The record compellingly indicates that the IJ simply overlooked

the importance of this piece of evidence, which constitutes an error of law.

7 Second, the IJ “totally overlooked” or “seriously mischaracterized” key

evidence again when it asserted that Lin had not proven the Chinese government

had any interest in pursuing him in part because he “has not indicated that he had

any problems leaving [China] back in 2008 using his own” passport.

at 58–69.

That is incorrect. Lin testified that relatives “bribed all the channel on the airport”

to get him out of China.

. Review of the transcript suggests that by the

end of the hearing, prior to issuing the oral decision, the IJ had simply forgotten

that testimony.

. 1 Lin’s counsel said he believed the IJ was mistaken, but

the IJ denied a request to ask Lin the question again.

The IJ’s misunderstanding

of the evidence and mistaken belief that Lin was able to leave China without any

difficulty was central to the IJ’s conclusion that the police were not likely pursuing

Lin for his involvement in Falun Gong. This, too, constituted an error of law.

Third, the IJ faulted Lin for failing to offer various forms of corroboration,

but the IJ indicated that the most “important[]” piece of missing evidence was “an

official arrest warrant from any governmental agency or entity in [China] showing

that the officials, in fact, want to arrest him.”

. This was an error of law

1Lin testified at one point that he had “[n]o . . . problem” leaving China, but it almost immediately became clear that Lin did not understand the question when he gave that answer, and the IJ withdrew it.

. 8 because, while this Court “generally defer[s] to the agency’s evaluation of the

weight to be afforded an applicant’s documentary evidence,” Y.C. v. Holder,

(2d Cir. 2013), we have also recognized that “asylum applicants can

not always reasonably be expected to have an authenticated document from an

alleged persecutor.” Cao He Lin v. U.S. Dep’t of Just.,

(2d Cir. 2005)

(internal quotation marks omitted). The IJ failed to explain why it is reasonable to

expect Lin to be able to produce an official government document that ordinarily

would not be made public, held by government that Lin says wishes to persecute

or torture him. Cf. Pinel-Gomez, 52 F.4th at 529 (“[T]he IJ must . . . point to specific

pieces of missing evidence and show that it was reasonably available . . . .”).

This error was especially stark given that Lin offered extensive evidence to

corroborate his claim that the police wanted to arrest him. In addition to the letter

from Lin’s friend’s mother, discussed above, and a letter from Lin’s sister detailing

police harassment of Lin’s family in an effort to find him, Lin also offered what

appear to be essentially “Wanted” posters for Lin from his former employer and

village committee. CAR at 200–07. The IJ discounted these notices because they

were not “authenticated,” noting that while each bore some kind of seal, they were

not “actually signed by an actual person.” Id. at 57. It is not clear why that affects

9 their reliability, or why one would expect such documents to be signed by an

individual. The IJ went on to speculate, without any apparent factual basis, about

whether “the village committees where [Lin] lives are even authorized by such

notices.” Id. at 57–58. In sum, the IJ failed to identify any better evidence of the

government’s interest in persecuting Lin at the time he fled China that was

“reasonably available” to Lin, and any suggestion to the contrary was error.

Fourth, the IJ also placed undue weight on whether Lin himself practiced

Falun Gong, which indicates the IJ misunderstood Lin’s asylum and withholding-

of-removal claims as based only on Lin’s religion, rather than imputed political

opinion. Where, as here “[t]he IJ certainly was on notice that [Lin] was advancing

the theory of imputed political opinion,” it was error for the IJ to fail to evaluate

that claim and instead to focus on Lin’s religious practice. Gao, 424 F.3d at 129–30.

As mentioned above, Lin’s claim has always been based on imputed

political opinion, not religion per se. He claims the government perceives him to

be a member of a religious group that the government believes opposes its regime.

See CAR at 432 (I-589 with boxes checked for “Political opinion,” “Membership in

a particular social group” and “Torture Convention,” but not religion); id. at 453

(credible fear assessment finding significant possibility Lin could establish

10 eligibility for asylum or withholding of removal “on account of imputed political

opinion”); id. at 5 (brief to BIA); see also Gao,

(holding that “imputed

political opinion” can constitute a ground of political persecution under the INA);

Rizal v. Gonzales,

, 90 & n.7 (2d Cir. 2006) (suggesting “imputed religion”

may also suffice for similar reasons). But much of the factual narrative in the IJ’s

opinion focuses on whether Lin actually practiced Falun Gong, either in China or

the United States. CAR at 52–55. The IJ ignored record evidence of persecution of

Falun Gong members, apparently believing it was irrelevant if Lin did not practice

Falun Gong himself. And the IJ instead relied heavily on the finding that Lin’s

testimony was “vague” and thus required corroboration, though the portion of his

testimony that was vague pertained to his practice of Falun Gong (or lack thereof)

in the United States. Id. at 53, 58, 140. Taking all of these issues together, the IJ’s

“fail[ure] to come to grips with” Lin’s theory was legal error. Gao,

.

The relevant question is not whether Lin “was or is a practitioner of Falun Gong”

but “whether authorities would have perceived [Lin] . . . as a supporter of the

movement because of his activities,” and would have persecuted him on that basis.

. “The IJ failed to analyze whether the evidence supported Gao's theory

of imputed political opinion, and must do so on remand.”

.

11 Stripped of those errors, the potential remaining bases for the agency’s

decision do not permit us to be “confident that the agency would reach the same

result upon a reconsideration cleansed of errors.’” Martinez De Artiga, 961 F.3d at

591. While Lin’s evidence may warrant somewhat diminished weight due to the

passage of time between Lin’s submission of his application and his hearing date,

the government’s delay in scheduling that hearing is not itself fatal to Lin’s claims.

Even assuming a likelihood of persecution or torture diminishes gradually over

time, a fear of future persecution is objectively reasonable “even if there is only a

slight, though discernible, chance of persecution.” Diallo,

. Further,

we are aware of no rule that put Lin on notice that he must update his application

at any particular time after submission, while waiting for a hearing date, to prove

that his fear remains well founded. 2 In the absence of such a rule, applicants like

Lin are left to guess when once-compelling evidence needs to be refreshed. On

remand, the agency may reconsider the evidence, cleansed of the errors addressed

above, assigning due weight to any evidence that has become stale, and to any

additional evidence that it may receive from Lin through further proceedings.

2Indeed, if Lin had failed to narrowly escape arrest and had instead stayed in China long enough to be detained and tortured, as his friend was, he would have been able to establish past persecution, giving him a presumptively reasonable fear of future persecution, and the burden would have shifted to the government to show “a fundamental change in circumstances.”

(b)(1)(i), (ii). 12 * * *

For the foregoing reasons, we conclude the agency erred in denying Lin’s

asylum claim. Because the agency’s denials of withholding of removal and CAT

relief were derivative of the erroneous finding that Lin lacked a well-founded fear

of future persecution, and this is not a case where there is an “absence of any

evidence whatsoever in the record to show that Lin is likely to be tortured if he

were returned to China,” Gao,

, we vacate the BIA’s decision in its

entirety and remand for reconsideration.

For the foregoing reasons, the petition for review is GRANTED and the case

is REMANDED for further proceedings. All pending motions and applications

are DENIED and stays VACATED.

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

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