Ren vs Gonzales [Summ. Ord.], (2nd Cir. 2006)

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J BIA

Bu rr, IJ

A79-306-968

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR

IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 23rd

day of June, Two thousand and six.

PRESENT:

HON. WILFRED FEINBERG,

HON . GUIDO CALABRESI,

HON. PETER W. HALL,

Circuit Judges.

Ren Zhi Yong,

Petitioner,

-v.- No. 05-2317-ag

NAC

United States Department of Justice,

Respondent.

FOR PETITIONER: Dehai Zhang, New York, New York.

FOR RESPONDENT: Mi chael J. Sullivan, United States Attorney; Michael Sady,

Assistant United States Attorney, Boston, Massachusetts.

UPON DUE CONSIDERATION of this petition for review of the Board of Immigration

Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is GRANTED, the decision of the BIA is VACATED, and the case is

REMANDED for further proceedings consistent with this decision.

Ren Zhi Yong ("Ren"), through counsel, petitions for review of the April 2005 order affirming Immigration Judge ("IJ") Sarah M. Burr's decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We assume the parties' familiarity with the underlying facts and procedural history in this case.

When, as here, the BIA affirms the IJ's decision in some respects but not others, this Court reviews the IJ's decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (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." 8U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n.7 (2d Cir. 2004). But "we will vacate BIA conclusions . . . that a perfectly reasonable fact-finder could have settled upon, insofar as the BIA either has not applied the law correctly or has not supported its findings with record evidence." Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003).

Substantial evidence does not support the BIA's adverse credibility determination, which rested solely on Ren's omission of the beating from his I-589 form. The small space on the asylum application form "would hardly indicate to an applicant that the failure to include every detail regarding the basis for asylum could later lead to an adverse credibility finding when the applicant elaborates on them in the course of a deportation hearing." See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003). Likewise, "asylum applicants are not required to list every incident of persecution on their I-589 statements." Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006). Moreover, Ren did aver to the beating in a supplemental affidavit.

Additionally, the record does not support the BIA's and IJ's determination that Ren failed to establish that his persecution claim was based on a statutory ground for asylum and withholding of removal. The BIA asserted that the Chinese authorities sought to prosecute Ren for his violation of Chinese laws, and he was neither a practitioner of Falun Gong nor perceived as one by the authorities. However, the questions the authorities asked Ren, such as when he joined a Falun Gong organization, clearly indicated that they believed he was a Falun Gong practitioner. Further, Ren testified that when he denied having ever joined any Falun Gong organizations the authorities did not believe him. Ren has therefore presented evidence to establish that the Chinese authorities imputed an anti-government political opinion to him, given that the Chinese government has banned the Falun Gong movement. See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005); see also In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996) (stressing that a person who is erroneously believed to hold a particular political opinion can satisfy the "refugee" definition, although it may be "impossible" to prove the exact reason for persecution). Because the agency failed to address this evidence and because the adverse credibility finding is unsupported by substantial evidence, the case must be remanded.

For the foregoing reasons, the petition for review is GRANTED, the decision of the BIA is VACATED, and the case is REMANDED for further proceedings consistent with this decision. 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).

FOR THE COURT: Roseann B. MacKechnie, Clerk By:

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