Petition for review of an order of the Board of Immigration Appeals dismissing an application for asylum, withholding of removal, and protection under the Convention Against Torture. Petition GRANTED in part and DENIED in part, and REMANDED for further proceedings.
The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge
Before: WALKER, B.D. PARKER, and RAGGI, Circuit Judges.
Petitioner Yanqin Weng ("Weng"), a citizen of the People's Republic of China, seeks review of an order of the Board of Immigration Appeals ("BIA") dismissing her appeal from the decision of the Immigration Judge ("IJ") denying her application for asylum and withholding of removal and her application for protection under the Convention Against Torture ("CAT"). See 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.16(c). The IJ denied relief because she concluded that Weng, who worked as a nurse's assistant at a public hospital that performed forcible abortions pursuant to China's family planning policy, was a "persecutor" and, consequently, was statutorily ineligible for asylum or withholding of removal. The IJ also found that Weng was not entitled to relief on her CAT claim because she had not established that, more likely than not, she would be tortured if removed to China. The BIA adopted and affirmed the IJ's decision and dismissed Weng's appeal, finding that Weng had engaged in conduct that was "active and had direct consequences for victims of persecution."
Because we hold that the BIA's conclusion that Weng was subject to the persecutor bar was incorrect, we grant Weng's petition with respect to her asylum and withholding of removal claims. We deny the petition insofar as it challenges the BIA's denial of CAT relief.
The record below indicates that starting in February 2004,Weng worked as a nurse's assistant at Langqi Township Hospital ("Langqi"), a public hospital in Fujian Province, China. Her responsibilities included such tasks as registering patients, assisting nurses in caring for patients, recording vital signs, and maintaining patients' files.
Because of a serious traffic accident on a nearby highway on August 19, 2004, the hospital's doctors were occupied. That evening, five pregnant women who had been detained were brought to Langqi to undergo abortions, but were forced to wait in Weng's duty room for a considerable period for an available doctor. A family planning official supervised the women during their wait and Weng was assigned to assist him.
Later that night, one of the detained women confided in Weng that, although this was the woman's first pregnancy, she nevertheless had been targeted by the government because her husband, a widower, had a son from his previous marriage. Government officials had arrested her at her mother's house, where she had been hiding, and had brought her to Langqi. The woman sought Weng's assistance in escaping, and, according to Weng's testimony, Weng agreed to help the woman knowing that such assistance would jeopardize her position at the hospital. After helping the woman exit the hospital via a rear staircase, Weng returned to her duty room and attempted to evade the official's questions about the missing woman's location. The official, dissatisfied with Weng's responses, physically abused her. Later that morning, Weng was fired.
Soon after this incident, several local government officials appeared at Weng's house and demanded that she reveal the location of the missing pregnant woman, threatening Weng with arrest if she refused to supply the information. Fearful, Weng allegedly fled to the home of a relative in a nearby city. On several occasions during the ensuing weeks, the officials returned to Weng's home, searching for her. In September 2004, Weng left China and eventually entered this country without documentation. She believes that the family planning authorities are still searching for her and seek to arrest her.
In February 2005, Weng applied for political asylum, withholding of removal, and CAT protection. The IJ denied Weng all relief. First, the IJ found that Weng was not credible because her story about the woman she ostensibly freed contradicted country condition reports and Chinese family planning regulations. Second, the IJ found that Weng's provision of post-surgical care to women who had undergone abortions, paired with her assistance to a family planning official in guarding patients on August 19, 2004, demonstrated that Weng "played a role critical to the effect of enforcement of the coercive population control policy in China." Having found that Weng was a "persecutor," the IJ concluded that she was barred from asylum and withholding of removal. The IJ further found Weng ineligible for CAT protection because she had not shown that, more likely than not, she would be tortured if returned to China. Weng appealed and the BIA dismissed the appeal. Adopting and affirming the IJ's decision (except with respect to the adverse credibility finding), the BIA found that Weng was subject to the persecutor bar and, as a result, was ineligible for asylum or withholding of removal. Adverting to our decision in Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir. 2006), the BIA characterized Weng's conduct as "active and [as having] direct consequences for the victims" of China's family planning policy. The BIA also affirmed the IJ's denial of Weng's application for CAT relief. This appeal followed.
Because the BIA adopted and affirmed the IJ's decision, we review the two decisions in tandem. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The "substantial evidence" standard of review applies, Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006), and we uphold the IJ's factual findings if they are supported by "reasonable, substantial and probative evidence in the record," Lin ...