Shan Dong Lin v. ERIC H. HOLDER, JR., Attorney General

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0008n.06
No. 11-3262
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHAN DONG LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
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ON PETITION FOR REVIEW FROM
A FINAL ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before: MARTIN and SUTTON, Circuit Judges; FORESTER, District Judge.*
PER CURIAM. Shan Dong Lin, who is represented by counsel, petitions for review of a
decision by the Board of Immigrations Appeals vacating an Immigration Judge’s (IJ) grant of asylum
and ordering him removed to China. The parties have waived oral argument, and this panel
unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
Shortly after Lin’s wife was subjected to a second forced abortion, Lin fled China for the
United States. Because he entered the country illegally, on February 8, 2008, the Department of
Homeland Security charged Lin with removability and issued him a Notice to Appear. On the
grounds that he and his wife violated China’s one-child policy, Lin filed an application for asylum,
withholding of removal, and relief under the Convention Against Torture.
The Honorable Karl S. Forester, United States Senior District Judge for the Eastern District*
of Kentucky, sitting by designation.

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In January 2009, Lin visited friends in New York City for the Chinese New Year and learned
about the China Democracy Party (CDP). Because the CDP criticizes China’s communist
government and fights for human rights, Lin joined the CDP at its “USA Headquarters” in New
York. During his New York visit, Lin participated in CDP demonstrations and distributed CDP
fliers. At his February 11, 2009, removal hearing, Lin supplemented his application with a claim that
he will be persecuted in China for his membership in the CDP. In light of Lin’s testimony and
documentary evidence, the IJ granted Lin asylum, but denied his request for withholding of removal
and relief under the Convention Against Torture. Noting the various ways that the Chinese
government “keeps tabs on people,” the IJ concluded that Lin had established a “reasonable
possibility” that he would be persecuted in China for his association with the CDP. The government
appealed the IJ’s grant of asylum to the Board. Lin did not cross-appeal the denial of his requests
for withholding of removal and for relief under the Convention Against Torture.
The Board found Lin’s asylum claim “unpersuasive.” The Board noted that Lin had not
established a connection between the CDP he joined in New York and the CDP mentioned as the
subject of persecution in the State Department’s Country Report on China. The Board also found
that Lin had failed to show that “the Chinese authorities are or will likely become aware of his
involvement” with the CDP in New York and that Lin “ha[d] not presented evidence that anyone
involved in the [CDP in New York] has returned to China and faced problems based on such activity
in the United States.” The Board reasoned that “[Lin] has not established a well-founded fear of
persecution on account of his mere membership in the CDP USA.” The Board therefore vacated the
IJ’s grant of asylum and ordered Lin removed to China. Lin filed a timely petition for review.
“When the [Board] issues its own opinion rather than summarily adopts the findings of the
IJ, this Court reviews the decision of the [Board] as the final agency determination.” Bi Xia Qu v.

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Holder, 618 F.3d 602, 605 (6th Cir. 2010). Administrative factual findings are upheld unless we
conclude “that ‘any reasonable adjudicator would be compelled to conclude to the contrary.’” Id.
at 606 (quoting 8 U.S.C. § 1252(b)(4)(B)). We review de novo any legal issues. Id.
The parties dispute the standard of review that governs this case. Lin contends that our
review is de novo because he is challenging the Board’s application of the law to the facts and is
arguing that the Board held him to an improper burden of proof. The government, in contrast, asserts
that “it is well-established that the substantial evidence standard applies to the agency’s well-founded
fear determination.” We agree with Lin and apply the de novo review standard.
The Board’s “‘application of legal principles to undisputed facts, rather than its underlying
determination of those facts or its interpretation of its governing statutes,’” is an issue that we review
de novo. Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007) (quoting Dorosh v. Ashcroft, 398
F.3d 379, 381 (6th Cir. 2004)). The de novo review standard also applies to “whether the [Board]
used the correct standard in reviewing the IJ’s decision and whether [the Board] assigned to [Lin]
the correct burden of proof.” Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006).
Congress has provided the Attorney General with “discretion to grant asylum to a refugee
who shows that [he] has suffered past persecution ‘on account of race, religion, nationality,
membership in a particular social group, or political opinion,’ or that [he] has a well-founded fear
of future persecution on these grounds.” Qu, 618 F.3d at 606 (quoting 8 U.S.C. § 1101(a)(42)). To
establish “a well-founded fear of future persecution,” the asylum applicant must demonstrate: 1) “‘a
fear of persecution in [his] home country on account of race, religion, nationality, membership in a
particular social group, or political opinion,’” 2) “‘a reasonable possibility of suffering such
persecution if [he] were to return to that country,’” and 3) “‘[he] is unable or unwilling to return to

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that country because of such fear.’” Id. (quoting Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.
2005)) (citations omitted).
Withholding of removal, in contrast, entails a higher burden of proof than asylum. To be
granted withholding of removal, the applicant “must demonstrate ‘that there is a clear probability
that he will be subject to persecution if forced to return to the country of removal.’” Singh, 398 F.3d
at 401 (quoting Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004)). “The ‘clear probability’
standard asks more of the applicant than the ‘reasonable possibility’ standard for obtaining asylum
because it requires the applicant to show that ‘it is more likely than not’ that his life or freedom
would be threatened by persecution if he returned to his home country.” Pablo-Sanchez v. Holder,
600 F.3d 592, 594 (6th Cir. 2010), cert. denied, 131 S. Ct. 573 (2010) (quoting Al-Ghorbani v.
Holder, 585 F.3d 980, 993-94 (6th Cir. 2009)).
Lin argues that the Board improperly applied the law governing “a well-founded fear of
persecution” because it imposed an inappropriate burden of proof on his claim. Although the IJ
explicitly recognized the difference between the two standards when he granted Lin asylum, but
denied him withholding of removal, the Board’s decision is unclear which burden of proof it applied
to Lin. In citing Matter of A– M–, 23 I & N Dec. 737, 740 (BIA 2005), the Board stated that: “The
Immigration Judge erred by concluding that [Lin] met his burden of proof for asylum.” However,
the asylum application in Matter of A– M– was denied as untimely, id. at 738-39, and the applicant’s
“fear of future persecution” was analyzed in the context of his request for withholding of removal.
Id. at 740-41. The Board’s specific citation to its discussion regarding the burden of proof for
entitlement to withholding of removal in Matter of A– M–, indicates to us that the Board most likely
erred in holding Lin to the higher “clear probability” standard for withholding removal, rather than
the lesser “reasonable possibility” standard for asylum.

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The Supreme Court has instructed that when the Board fails to conduct a proper analysis,
“‘[a] court of appeals is not generally empowered to conduct a de novo inquiry into the matter being
reviewed and to reach its own conclusions based on such an inquiry.’” Gonzales v. Thomas, 547
U.S. 183, 186 (2006) (quoting INS v. Orlando Ventura, 537 U.S. 12, 16 (2002)); see also Qu, 618
F.3d at 609. Rather, “‘the proper course, except in rare circumstances, is to remand [the case] to the
agency for additional investigation or explanation.’” Thomas, 547 U.S. at 186 (quoting Ventura, 537
U.S. at 16) (citation omitted); Qu, 618 F.3d at 609. Because the Board’s decision regarding the
burden of proof it applied to Lin is, at best, unclear, a remand is appropriate in this case to allow the
Board to clarify its decision.
Accordingly, Lin’s petition for review is granted. We vacate the Board’s decision and
remand the case to the Board for reconsideration of Lin’s asylum application.

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