10-1212-ag
    Wang v. Holder
                                                                                   BIA
                                                                              Nelson, IJ
                                                                       A099 930 567/568
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 30th day of March, two thousand eleven.

    PRESENT:
             DENNIS JACOBS,
                  Chief Judge,
             ROBERT A. KATZMANN,
             DENNY CHIN,
                  Circuit Judges.
    _______________________________________

    SHENGHUA WANG, WEIGUANG LIU,
             Petitioners,

                     v.                                    10-1212-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Guang Jun Gao, Flushing, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Richard M. Evans, Assistant
                                  Director; Christina Bechak
                                  Parascandola, Trial Attorney, Office
                                  of Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is GRANTED.

    Shenghua Wang and Weiguang Liu, natives and citizens of

China, seeks review of a March 5, 2010, decision of the BIA

affirming the July 15, 2008, decision of Immigration Judge

(“IJ”) Barbara A. Nelson, which denied Shenghua Wang’s

application for asylum, withholding of removal and relief

under the Convention Against Torture (“CAT”), on which

Weiguang Liu was named as a derivative beneficiary.    In re

Shenghua Wang, Weiguang Liu, Nos. A099 930 567/568 (B.I.A.

Mar. 5, 2010), aff’g Nos. A099 930 567/568 (Immig. Ct. N.Y.

City July 15, 2008).   We assume the parties’ familiarity

with the underlying facts and procedural history in this

case.

    Under the circumstances of this case, we review the

decision of the IJ as supplemented by the BIA.   See Yan Chen

v. Gonzales, 

, 271 (2d Cir. 2005).   The

applicable standards of review are well-established.

See 8 U.S.C. § 1252(b)(4)(B); see also Salimatou Bah v.

Mukasey, 

, 110 (2d Cir. 2008); Manzur v. DHS, 

, 289 (2d Cir. 2007).

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    As a preliminary matter, the Respondent’s motion to

dismiss the petition for review for lack of jurisdiction

under 8 U.S.C. § 1252(b)(1) will be denied because we deem

the petition for review timely filed.    See Contino v. United

States, 

, 127 (2d Cir. 2008) (declining to

conclude that an electronically filed notice of appeal was

untimely despite the appellant’s failure to comply with a

local rule mandating that the notice be filed by physical

mail).    Petitioners’ counsel should take note that Second

Circuit Local Rule 25.1(d) sets forth the proper procedure

for filing initiating documents, including petitions for

review.

    Because the agency failed to consider material evidence

supporting Wang’s claim, we grant the petition for review

and remand the case to the agency.    The IJ’s adverse

credibility determination was based in large part on the

perceived inconsistencies in Wang’s testimony regarding her

first marriage and the child she claimed she and her first

husband had together, in conjunction with the lack of

corroborating evidence showing that the first marriage did

occur, and that a child resulted from the marriage.      The

inconsistency that the IJ pointed to as casting doubt on


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whether Wang had in fact previously been married and whether

she had a child in 1988 came from two exchanges during

Wang’s testimony on direct examination.    The first exchange

concerned whether Wang had any children:

    Q.      Okay. And are you married to the gentleman who is
            in the court?
    A.      Correct.
    Q.      Can you identify him by name please?
    A.      Liu Wei Guang.
    Q.      When did you marry?
    A.      We were married on June 4th, 1998.
    Q.      Were you married in China?
    A.      Yes.
    Q.      Do you have any children?
    A.      No.
    Q.      Does your husband have any children?
    A.      My ex-husband, we had a daughter.
    Q.      Okay, so you do have a child with a prior
            marriage.
    A.      Correct, correct.
    Q.      What’s her name?
    A.      Qua Ray.
    Q.      And when was she born?
    A.      She was born on July 16th, 1988.
    Q.      When did you divorce?
    A.      I was divorced on May 4th, 1995.

The second exchange concerned how many times Wang had been

pregnant:

    Q.      Could you tell us the reason that you’re asking
            for asylum in the U.S.?
    A.      In China I suffered two times persecution. Two
            pregnancies, two persecutions.     Right.
    Q.      How were you persecuted, in what way?
    A.      Well the first time when I was pregnant, they
            forced me to have an abortion.
    Q.      And when did that happen?
    A.      On the first time, the first pregnancy was in

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         1998.   That’s when I first, just got married.

    The IJ found, based on this testimony, that “[Wang’s]

consistently forgetting the fact that she had the pregnancy

in ‘87 or ‘88, and that she had a daughter . . . is the

serious inconsistency in the evidence.”   When taken in

context, however, the testimony does not support the IJ’s

determination that there was a serious inconsistency.     See

Ramsameachire v. Ashcroft, 

, 178 (2d Cir. 2004)

(“[W]e will reverse where the adverse credibility

determination is based upon . . . an incorrect analysis of

the testimony.”).   In the first exchange, based on the prior

questions, Wang interpreted the question “[d]o you have any

children?” as asking whether she and her second husband had

any children together, and after answering “no,” in response

to the next question, she immediately clarified that she and

her ex-husband did have a daughter together.   In the second

exchange, it seems clear that Wang was testifying as to how

she had been persecuted; that is, she had two pregnancies

that ended in forced abortions.   In the context of the

questions asked, Wang’s testimony was not that she had

gotten pregnant for the first time ever in 1998, but rather

that the first pregnancy that ended in abortion occurred in

1998.
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    The IJ further found that Wang “offered no evidence to

establish that she, in fact, gave birth to a child.     She has

not offered any evidence that she had a prior marriage.”

However, one document that Wang offered as evidence, and the

IJ marked as exhibit 8, was an “Only Child Preferential

Treatment Certificate.”   This certificate indicates a date

of issue of August 23, 1988, and states that ShengHua Wang

and KeGang Huang are the parents of Lei Huang, a female born

on July 16, 1988.   It is unclear from the record whether the

IJ specifically considered this exhibit.   Although the IJ

noted that Petitioners offered an “only child preferential

treatment certificate issued to the wife,” the IJ did not

indicate what weight, if any, she gave to this document, nor

did she discuss its content.   The IJ did discuss the

household register, which indicates a date of issue of May

12, 1998, and provides that Lei Huang, born July 16, 1988,

is the daughter of ShengHua Wang, but concluded that the

document was insufficient to show that Wang had given birth

to a daughter.

    Although Petitioners explicitly cited the only child

certificate on appeal to the BIA, the BIA found that the

record supported the IJ’s conclusion that Wang failed to

offer evidence of either her prior marriage or that the
                               6
claimed marriage resulted in her giving birth to a daughter

in 1988.     The BIA agreed that the household register was

insufficient corroboration,1 but did not acknowledge the

only child certificate.     The BIA based its affirmance of the

adverse credibility determination entirely on the perceived

discrepancies in Wang’s testimony as to how many times she

had been pregnant and given birth, and the perceived lack of

evidence corroborating Wang’s claim of a first marriage and

daughter born in 1988.     The BIA also found, pursuant to its

de novo review, that in the absence of corroborating

evidence Wang failed to meet her burden of proof,

irrespective of the IJ’s credibility finding.

    In light of the problems with the inconsistency finding

and there being no indication that the agency considered the

only child certificate, the agency’s finding that Wang was

not credible as to the existence of a daughter born in 1988

is flawed.     See Delgado v. Mukasey, 

, 705 (2d

Cir. 2007) (the substantial evidence standard “requires a

certain minimum level of analysis from the IJ and BIA, as

well as some indication that the IJ considered material

evidence supporting a petitioner’s claim.” (internal quotes

      1
        Despite the BIA’s statement, the household registry
  does include the daughter’s date of birth and place of
  birth. The listed date of birth matches the date of
  birth listed on the only child certificate, and testified
  to by Wang.
                             7
omitted)).

    The IJ also based her adverse credibility determination

on the lack of evidence submitted by Wang supporting the

proposition that having a child with her second husband

would be in violation of China’s family planning policy.       If

the IJ were to find that Wang did have a daughter in 1988,

such a conclusion might affect her finding regarding

demonstrating a violation of the family planning

regulations, as it is unclear if the IJ’s finding on that

point was based on an assumption that Wang did not have a

child in 1988, and thus would not be in violation of any

existing one-child policy.

    The only other bases for the IJ’s adverse credibility

determination were the perceived implausibility of Wang’s

actions when she was six months pregnant in 1999, and an

inconsistency between Wang’s asylum application and her

testimony regarding her conversation with family planning

officials.     The IJ calls the latter inconsistency “minor”

and notes that “without the foregoing problems, [she] would

not even consider [it] a basis for finding [Wang]

incredible.”     As to the IJ’s finding of implausibility

regarding Wang’s actions during her pregnancy in 1999, that

finding was impermissibly speculative, and did not take into

account Wang’s explanation for her behavior.     An IJ’s

                                8
findings regarding inconsistencies or implausibilities may

not be based upon bald speculation.   See Yuanliang Liu v.

U.S. Dep’t of Justice, 

, 110-111 (2d Cir. 2006);

Xiao Ji Chen v. U.S. Dep’t of Justice, 

, 336 (2d

Cir. 2006).   Moreover, the IJ must take into account

explanations for, and responses to, credibility concerns.

See Pavlova v. INS, 

, 89-90 (2d Cir. 2006)

(“[W]here it is not apparent on the face of the record that

the IJ has considered the applicant’s responses to the IJ’s

credibility concerns, we . . . require the IJ to say enough

to allow us . . . to review [] the reasons for rejecting the

applicant’s testimony.”).   Because the agency’s decision

depended upon both impermissible speculation and a perceived

lack of corroboration, we cannot confidently predict that

the same decision would be reached upon remand.   See Xiao Ji

(holding that remand is futile “when

the reviewing court can ‘confidently predict’ that the

agency would reach the same decision absent the errors that

were made”) (quoting Cao He Lin v. U.S. Dep’t of Justice,

, 406 (2d Cir. 2005)).




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    For the foregoing reasons, the petition for review is

GRANTED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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