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Long v. Holder

September 16, 2010

JIN JIN LONG, PETITIONER,
v.
ERIC H. HOLDER JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.*FN1
RI QUAN SONG, PETITIONER,
v.
ERIC H. HOLDER JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.*FN2



SYLLABUS BY THE COURT

Tandem petitions for review of removal orders, filed by Chinese citizens who claim they suffered persecution in China on account of assistance they gave refugees from North Korea. Ri Quan Song's petition is DENIED. Jin Jin Long's petition is GRANTED; the order of removal is VACATED, and his case REMANDED to the Board of Immigration Appeals for further proceedings consistent with this opinion.

The opinion of the court was delivered by: Dennis Jacobs, Chief Judge

Argued in Tandem: July 13, 2010

Before: JACOBS, Chief Judge, WESLEY and CHIN, Circuit Judges.

These petitions, heard in tandem, are filed by Chinese citizens who testified that they suffered persecution for violating a Chinese law that prohibits the provision of assistance to North Korean refugees. We must decide whether such persecution can be classified as on account of political opinion. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A) (asylum); 8 U.S.C. § 1231(b)(3)(A) (withholding of removal). The orders of removal were issued July 21, 2009 and August 11, 2009 by the Board of Immigration Appeals ("BIA"). Because the BIA failed to consider a number of relevant facts, Jin Jin Long's petition is granted; the order of removal is vacated, and his case remanded to the Board for further proceedings consistent with this opinion. On remand, the BIA (while considering the facts as directed) should determine whether there is a law barring assistance to North Koreans,*fn3 and (whether there is or is not) in what circumstances persecution of those who assist North Korean refugees would constitute persecution on account of a protected ground. Ri Quan Song's petition is denied.

I.

According to the petitioners' (inexpert) testimony, Chinese law prohibits giving assistance to North Korean refugees. Both petitioners provided such assistance, suffered at the hands of the Chinese government, and contend that they suffered persecution on account of political opinion.

A.

Jin Jin Long is a Chinese national who resided until 2006 in Jilin Province, near the North Korean border. On February 7, 2005, he answered a knock on his door and encountered a family of North Korean refugees seeking aid for a sick member. Though he believed it was illegal to do so, Jin provided food, clothing, and shelter for a week, after which he purchased train tickets for the family's travel onward.

On December 17, 2005, Jin was detained by the police and questioned about the North Korean refugees he had helped. He was held for eleven days, during which time he was beaten repeatedly on his arms and back with electric batons. The police accused him of participating in a human-smuggling ring--a charge he denied and claims was fabricated. He was never formally charged or brought before a judge. He was released only when his wife paid the officers 4000 yuan.

Jin left China with his wife in February 2006, fearing further harassment by the Chinese police. He entered the United States without inspection some months later.

Jin was found credible. But the BIA denied his applications for asylum and withholdi g of removal on the ground that he had failed to establish the required nexus between his asserted political opinion and the alleged persecution, and that he was therefore ineligible for asylum and withholding of removal.*fn4 This petition for review timely followed.

B.

Ri Quan Song is a Chinese national who resided until 2004 in Jilin Province, near the North Korean border. His uncle ...


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