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Ruqiang Yu v. Eric H. Holder

September 7, 2012


The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge:


Yu v. Holder

(Argued: April 16, 2012

22 Before: JACOBS, Chief Judge, B.D. PARKER, & HALL, Circuit Judges.

Ruqiang Yu petitions for review of a decision of the Board of Immigration Appeals that 25 affirmed the Immigration Judge's decision denying Yu's application for asylum, withholding of 26 removal, and relief under the Convention Against Torture ("CAT"). We conclude that the BIA 27 applied an erroneous legal standard when assessing whether Yu's opposition to corruption 28 constituted an actual political opinion. We hold also that the BIA erred by failing to consider 29 Yu's claim of imputed political opinion. Accordingly, we grant the petition for review and 30 remand for further consideration.

32 Petition for review GRANTED.

7 Ruqiang Yu ("Yu"), a native and citizen of the People's Republic of China, petitions this 8 Court for review of a decision of the Board of Immigration Appeals ("BIA") affirming the 9 decision of Immigration Judge ("IJ") Sandy K. Hom denying Yu's application for asylum, 10 withholding of removal, and relief under the Convention Against Torture ("CAT").*fn1 See 11 Ruqiang Yu, A087 560 843 (BIA May 31, 2011), aff'g IJ Removal Decision (Immig. Ct. N.Y.C. 12 April 14, 2010). The IJ found that Yu credibly testified that, while an employee and a team- 13 leader at a state-run airplane factory in Shanghai, his employer corruptly refused to pay the 14 wages of workers on his team and that, when Yu's efforts to aid the workers and to bring the 15 corruption to the attention of government officials was discovered, he was jailed and later fired. 16 The IJ and the BIA nonetheless concluded that, because the corruption Yu opposed was 17 "aberrational," as opposed to "endemic," he had failed to establish his eligibility for asylum.

18 We conclude that the BIA failed to consider Yu's opposition to corruption in its full 19 factual and political context, and we reject the BIA's conclusion that opposition to corruption at 20 one workplace - without evidence that the corruption extended to other workplaces - cannot 21 serve as the basis for asylum. Finally, we conclude that the BIA erroneously failed to consider 1 Yu's claim of imputed political opinion. Accordingly, we grant the petition for review and 2 remand the case to the BIA for further consideration.


5 Yu entered the United States in February 2009 on a B-1 business visa. In May 2009, he 6 filed an application for asylum claiming past persecution and a fear of future persecution on 7 account of his political opinions. See Assessment to Refer, Immigration and Naturalization 8 Service, New York Asylum Office, Aug. 5, 2009. His application was initially deemed not 9 credible and, in September 2009, Yu was served with a Notice to Appear ("NTA") charging him 10 with removability, at which point he requested a hearing. At his hearing, Yu conceded 11 removability and applied for asylum, withholding of removal, and CAT relief. The following 12 facts are taken from his I-589 Application for Asylum and his testimony before the IJ, which was 13 found to be credible.

14 Yu testified that he worked for seven years as a technician and a team-leader at the 15 Shanghai Airplane Manufactory, a state-run airplane factory. Yu's team included several 16 workers who had previously been farmers. According to Yu, the factory officials told a number 17 of the former farm workers that, because business was slow, their salaries would not be paid. 18 However, because of his position, Yu knew the factory was not in poor financial condition and 19 that the factory officials embezzled money intended for the workers and spent it lavishly on 20 themselves. For these reasons, he was "totally against the factory's leaders." 21 When a worker on Yu's team asked Yu to intervene on his behalf to secure the release of 22 his wages, Yu agreed to do so and spoke to a supervisor who "warned [Yu] that [he] was an 3 1 official employee and . . . . [he] shouldn't stir trouble for these . . . workers." After about a 2 month, when the worker still had not received his wages, Yu wrote an anonymous letter to the 3 Shanghai Anti-Corruption Bureau revealing the names of factory officials who had been 4 involved in the embezzlement. He signed the letter "a worker with conscience." 5 Yu further testified that, after sending the letter, a number of workers in other groups 6 approached him. These workers "hoped [Yu] could bring them to see the factory officials to 7 report their situation." According to Yu, "[m]ore than 10 workers, led by [him] went to see [the] 8 Vice General Manager who [was] in charge of [the] finance department of [the] factory." 9 However, the manager's secretary treated "[them] very bad . . . . [and one worker] shouted to the 10 secretary that he didn't get paid and had no money for food." The secretary called security and 11 the group was "banned from the office building."

12 The next day, four policemen came to Yu's workplace, handcuffed him, took him to a 13 police station, and charged him with "disrupt[ing] . . . soci[etal] peace." He testified that three 14 officers interrogated him for four to five hours, showing him a copy of the anonymous letter and 15 asking whether he had written it. Although Yu denied being the author, the police insisted that 16 they had confirmed his handwriting and struck him each time he denied being the author. Yu 17 further testified that the police detained him for two weeks, during which time he was beaten by 18 the other inmates on account of his anti-corruption activities and threatened with indefinite 19 detention if he did not sign a letter retracting the charges he had levied. He signed such a letter, 20 admitting that he purposefully organized workers to cause trouble and to undermine social order, 21 and he promised not to write additional letters of complaint or to organize workers. As 22 punishment for this behavior and to secure his release, his family was required to post a 7,000 4 1 RMB ($1,110 USD) bond. After his release, he returned to work but was fired a short time later. 2 Thereafter, he was subjected to visits and ongoing harassment by the police, and, in February 3 2009, he fled China.

4 In his asylum application, Yu characterized his conduct as political. He testified that he 5 acted out of concern for his co-workers and in an attempt to prevent the embezzlement of their 6 wages. Yu also testified that the authorities imputed a political opinion to him, believing that he 7 was actively assisting workers who were promoting social unrest. 8 The IJ found Yu's testimony credible and consistent with his asylum application. The IJ 9 noted that retaliation for challenging government corruption in some circumstances can 10 constitute a political opinion. However, he concluded that, "where the respondent [is] directing 11 his complaint against individuals who [take] advantage of their position, who engaged in 12 embezzlement and corruption, this, the Court finds, to be aberrational." Having found that the 13 corruption was "aberrational" and "was due to greed and [] theft," the IJ concluded that Yu was 14 not eligible for asylum.

15 The BIA affirmed the IJ. It concluded that Yu failed to establish that his actions 16 "constitute[d] a political challenge directed against a governing institution" since he was 17 objecting to "aberrational" corruption by individuals. BIA Op. at 2. The BIA did not consider 18 whether a political opinion was imputed to Yu. Instead, it held that Yu did not meet his burden 19 because he did not "establish that endemic corruption occurs [at the Company] with the 20 complicity of the State." Id. Yu's actions, the BIA reasoned, were "a personal dispute against 21 his individual employers for misusing funds he believed should have gone toward the unpaid 22 wages of the laborers on whose behalf he sought to intervene." Id. 5 1 Because the BIA adopted and affirmed the IJ's decision, we review the two decisions in 2 tandem. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review de novo questions 3 of law regarding "what evidence will suffice to carry any asylum applicant's burden of proof." 4 ...

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