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Ge v. Holder

December 2, 2009

SHI JIE GE, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL,*FN1 RESPONDENT.



SYLLABUS BY THE COURT

The petitioner seeks review of the July 25, 2007 decision of the Board of Immigration Appeals, which affirmed an Immigration Judge's November 10, 2005 order denying his applications for asylum, for withholding of removal, and for relief under the United Nations Convention Against Torture and Other Inhumane or Degrading Treatment or Punishment. Because we find that the BIA committed errors both as to the timeliness of the petitioner's application for asylum and in considering whether the petitioner would likely face persecution should he be returned to his native country, we GRANT the petition, VACATE the agency's decision denying relief, and REMAND to the agency for further proceedings.

The opinion of the court was delivered by: Pooler, Circuit Judge

Argued: May 27, 2009

LEVAL, POOLER, and B.D. PARKER, Circuit Judges.

Shi Jie Ge has timely petitioned this Court, pursuant to Section 242 of the Immigration and Nationality Act ("INA"), as amended 8 U.S.C. § 1252, for review of the July 25, 2007 decision of the Board of Immigration Appeals ("BIA"), which affirmed an Immigration Judge's ("the IJ") November 10, 2005 order denying Ge's applications for asylum, for withholding of removal, and for relief under the United Nations Convention Against Torture and Other Inhumane or Degrading Treatment or Punishment ("CAT"). 1465 U.N.T.S. 85. We conclude that errors committed by the BIA require remand of Ge's applications for further proceedings consistent with this opinion.

FACTS

According to his Form I-589 Application for Asylum and Withholding of Removal, which was filed on March 10, 2004, Shi Jie Ge was born in Tianjin, China, on September 11, 1961. Ge, who remains a Chinese citizen, entered the United States on a six-month visa on May 1, 2000, and has never returned to China. His wife, whom he married in 1989, and his son, who was born in 1990, remain in China.

Ge eventually came to reside in Queens, New York and, on July 28, 2004, he was served there with a Notice to Appear, which charged him with being a removable alien under Section 237(a)(1)(B) of the INA, in that he had remained in the United States beyond the expiration of his visa. 8 U.S.C. § 237(a)(1)(B). In a September 3, 2004 hearing before the IJ, Ge admitted to the truth of this allegation.

In his asylum application, Ge avers that he left China because of official retaliation against him after he complained of corrupt management practices at the electronics firm for which he worked as a salesman. But Ge's claim for asylum does not arise from these events. Rather, Ge's claim arises from his membership in the China Democracy Party ("CDP"), which, as attested to by the party's chairman, Ge joined, on June 15, 2001, after he entered the United States. On this appeal, Ge declares that he joined the CDP "because he was angry with the corrupt Chinese government and shared the principles the party stands for -- freedom, human rights and justice." The record contains photographs of Ge participating in CDP demonstrations at the Chinese consulate in New York City, as well as articles written by Ge which were posted on the organization's website. We do not perceive that the Government questions the genuineness of Ge's involvement with the CDP.

Ge asserts that his work on behalf of the CDP includes the clandestine recruitment, by means of telephone, of party members within China itself. In fact, Ge contends that his membership in the CDP was revealed to government authorities in China after an individual he recruited was arrested. After this individual reported Ge's membership, Ge asserts that, on October 20, 2003, his wife was visited by Chinese police officials, who urged her to encourage Ge to return to China. In a letter to the IJ, dated July 28, 2004, Ge's wife acknowledges that she first learned of Ge's CDP membership because of the arrest of "my husband's friend," although the letter did not mention any visit by government officials following the recruit's arrest. In his asylum application, Ge posits his fear of persecution should he be returned to China:

As I exposed my [CDP] membership public [sic], my parents and my wife have been frequently harassed and persecuted by Chin[ese] Communist Party authority. My wife and my child dared not stay in our own home and they kept moving from place to place so as to avoid the harassment from Chinese police. Naturally I will face Chin[ese] Communist Party authority persecution if I return to China now, so I apply to the United States government for asylum.

The CDP's chairman, in testimony before the IJ on Ge's behalf, claims that CDP "members whose member[ships] were revealed in China were all arrested. Right now there are approximately 50 [CDP] members still in jail in China."

In her oral decision delivered on November 10, 2005, the IJ denied all of Ge's applications for relief. First, the IJ found that Ge's application for asylum was untimely filed under the applicable deadline of one year from entry into the United States because Ge did not file his application until almost four years after his arrival in this country. Further, the IJ rejected Ge's argument that he was subject to an exception to the one-year deadline based upon his claim that his CDP membership only became known to Chinese authorities in 2003. The IJ found that, beyond Ge's own testimony, "the Court has no evidence to establish that his membership in the CDP has ever been discovered by the government of China."

The IJ also held that, even if Ge's application for asylum had been timely filed, his claim for asylum based upon the possibility of persecution should he be returned to China would fail. Specifically, the IJ held that although "[t]he background material [submitted by Ge] does indicate that dissidents from China are arrested and jailed" upon their return, "the Court finds that the respondent has not offered sufficient evidence to establish that the respondent's activities have become known to the government of China." ...


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