Zheng (not precedential): IJ Erred In Denying Chinese Asylum Claim

Zheng v. Mukasey
http://www.ca3.uscourts.gov/opinarch/081682np.pdf
January 14, 2009
Not Precedential

Judges Rendell, Greenberg, and Van Antwerpen. Per Curiam decision.

Overturning the BIA and IJ Richard Randall Ozmun.

IJ Ozmun erred in denying the asylum claim of a Chinese immigrant. The BIA erred in affirming without opinion.

The IJ and BIA erred in two of its four main grounds.

First, the IJ should not have found the testimony implausible. The IJ wrongly assumed it would be easy for the asylum-seeker to find Falun Gong practitioners in Pittsburgh and ignored how the asylum-seeker explained he had difficulty finding them when he tried. The IJ wrongly felt Falun Gong practitioners would always feel comfortable practicing Falun Gong openly in front of relative strangers who do not practice Falun Gong. The IJ wrongly assumed that a 17-year old could never follow his parent's arrangements to get to the US without insisting on learning exactly how the arrangements were originally made. The IJ wrongly faulted the asylum-seeker for not knowing advanced concepts of Falun Gong, because it is adequate for an asylum-seeker to be a mere practitioner who has a basic knowledge of the tenets and practice of Falun Gong.

Second, the IJ should not have concluded that a negative factor was how the immigrant's family has lived without any threats against them in China. The family's lack of receiving threats must be viewed in the context of how his parents did not practice Falun Gong so they are not similarly situated and the asylum-seeker showed how he would be singled out in a way different from his family members who stayed in China.