Filed: Oct. 14, 2015
Latest Update: Mar. 02, 2020
Summary: 13-2212 (L); 13-3527 (Con) Xie v. Holder BIA Cheng, IJ A087 646 761 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 DATABA
Summary: 13-2212 (L); 13-3527 (Con) Xie v. Holder BIA Cheng, IJ A087 646 761 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 DATABAS..
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13-2212 (L); 13-3527 (Con)
Xie v. Holder
BIA
Cheng, IJ
A087 646 761
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 14th day of October, two thousand fifteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_____________________________________
YI DI XIE, AKA LIN XIE, AKA GUO
TIAN HUA,
Petitioner,
v. 13-2212(L);
13-3527(Con)
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.1
_____________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Loretta E. Lynch is automatically substituted
for Eric H. Holder, Jr.
FOR PETITIONER: Doen Zheng, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; John S. Hogan, Senior
Litigation Counsel; Channah F.
Norman, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
decisions of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review in Dkt. No. 13-2212 (L) is DENIED and the petition
for review in Dkt. No. 13-3527 (Con) is GRANTED.
Petitioner Yi Di Xie, a native and citizen of China,
seeks review of a May 9, 2013 order of the BIA, affirming
the September 30, 2011 decision of an Immigration Judge
(“IJ”), which denied asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”), In re
Yi Di Xie, No. A087 646 761 (B.I.A. May 9, 2013), aff’g No.
A087 646 761 (Immig. Ct. N.Y. City Sept. 30, 2011), and a
September 11, 2013 decision of the BIA denying his timely
motion to reopen, In re Yi Di Xie, No. A087 646 761 (B.I.A.
Sept. 11, 2013). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
2
I. Petition for Review in Dkt. No. 13-2212 (L)
Under the circumstances of this case, we review the
decisions of both the IJ and the BIA. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C. §
1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d 510,
513 (2d Cir. 2009); Xiu Xia Lin v. Mukasey,
534 F.3d 162,
165-66 (2d Cir. 2008) (per curiam). Because Xie filed his
application in 2010, the REAL ID Act applies in this case.
See REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119
Stat. 302, 303 (2005) (codified at 8 U.S.C. §
1158(b)(1)(B)(iii)); Matter of S-B-, 24 I. & N. Dec. 42, 45
(B.I.A. 2006).
A. Credibility
For applications governed by the REAL ID Act, the
agency may base a credibility finding on an applicant’s
demeanor, the plausibility of his account, and
inconsistencies in his statements, without regard to whether
they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
265 (B.I.A. 2007). “We defer therefore to an IJ’s
credibility determination unless, from the totality of the
3
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167. Because “[d]emeanor is virtually
always evaluated subjectively and intuitively,” an IJ’s
assessment of an applicant’s demeanor merits “great
deference.” Tu Lin v. Gonzales,
446 F.3d 395, 400 (2d Cir.
2006).
Xie does not dispute that he appeared to provide
hesitant and non-responsive answers to questions asked
during his merits hearing, which was the sole basis for the
adverse credibility determination. He instead contends that
the credibility determination was erroneous because his
hesitant and non-responsive demeanor resulted from the
translation errors identified in his subsequently filed
motion to reopen. However, Xie did not exhaust these
translation error arguments or provide his corrected
transcript on direct appeal to the BIA. See Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir. 2007)
(recognizing that issue exhaustion is a mandatory, although
not jurisdictional, requirement). In light of Xie’s failure
to specifically identify any translation errors, or
meaningfully contest the IJ’s demeanor finding, on direct
4
appeal, it cannot be said “that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
B. Corroboration
For applications governed by the REAL ID Act, “[t]he
testimony of the applicant may be sufficient to sustain the
applicant’s burden without corroboration, but only if the
applicant satisfies the trier of fact that the applicant’s
testimony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the applicant is a
refugee.” See 8 U.S.C. § 1158(b)(1)(B)(ii). “Where the
trier of fact determines that the applicant should provide
evidence that corroborates otherwise credible testimony,
such evidence must be provided unless the applicant does not
have the evidence and cannot reasonably obtain the
evidence.” Yan Juan Chen v. Holder, 658 F.3d 246, 252 (2d
Cir. 2011) (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)). “No
court shall reverse a determination made by a trier of fact
with respect to the availability of corroborating
evidence . . . [unless] a reasonable trier of fact is
compelled to conclude that such corroborating evidence is
unavailable.” 8 U.S.C. § 1252(b)(4).
5
Contrary to Xie’s assertions, the agency did not err in
finding that he failed to sufficiently corroborate his
claims. Although Xie argues that he offered sufficient
evidence to corroborate his past harm in China, the agency’s
corroboration finding was based on Xie’s failure to offer
reasonably available evidence to corroborate his religious
practice in the United States. Xie contends that the agency
erred in finding that a statement from his sister could
corroborate his current religious practice; however, as the
IJ observed, Xie testified that he found his U.S. church
through his sister’s friend, that his sister was aware of
his U.S. church attendance, and that he calls his sister
every Sunday after going to church. Xie’s unsupported
assertion that it was not clear that there was anyone from
his church available to testify about his attendance, is
insufficient to compel a reasonable fact-finder to conclude
“that such corroborating evidence is unavailable.” 8 U.S.C.
§ 1252(b)(4). Moreover, Xie’s assertion that his U.S.
pastors were, in fact, available to testify, is not
supported by the record. The agency therefore did not err
in finding that Xie failed to sufficiently corroborate his
claims. See Yan Juan Chen, 658 F.3d at 252; 8 U.S.C.
§ 1158(b)(1)(B)(ii).
6
II. Petition for Review in Dkt. No. 13-3527 (Con)
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006) (citing INS v. Doherty,
502 U.S. 314, 322-23
(1992)). “A motion to reopen proceedings shall not be
granted unless it appears to the [BIA] that evidence sought
to be offered is material and was not available and could
not have been discovered or presented at the former
hearing.” 8 C.F.R. § 1003.2(c)(1) (2015). Failure to offer
such evidence is therefore a proper ground on which the BIA
may deny a motion to reopen, as is the movant’s failure to
establish “a prima facie case for the underlying substantive
relief sought.” INS v. Abudu,
485 U.S. 94, 104-05 (1988).
However, the BIA has an obligation to consider the “record
as a whole,” and it may be an abuse of discretion to deny a
motion to reopen without addressing “all the factors
relevant to [a] petitioner’s claim.” Ke Zhen Zhao v. U.S.
Dep’t of Justice,
265 F.3d 83, 97 (2d Cir. 2001).
The BIA abused its discretion in refusing to consider
Xie’s evidence of translation errors. The BIA found that it
had insufficient evidence to determine whether Xie’s newly
translated transcript was accurate because he submitted only
a transcript and a certificate of translation signed by the
7
translator. The BIA, however, cited no authority in support
of this finding. Although there is no specific regulation
governing the re-translation of merits hearing testimony,
the regulation governing the translation of foreign language
documents requires “a certification signed by the translator
that must be printed legibly or typed. [The] certification
must include a statement that the translator is competent to
translate the document, and that the translation is true and
accurate to the best of the translator’s abilities.” 8
C.F.R. § 1003.33. Xie’s translation certificate complied
with these requirements. The BIA therefore erred by
declining to consider Xie’s evidence of translation errors.
See Ke Zhen Zhao, 265 F.3d at 97.
The BIA’s refusal to evaluate Xie’s evidence of
translation errors is particularly troubling given that the
IJ’s concern with the adequacy of the interpreter is
apparent on the record. After numerous requests by the
interpreter to repeat questions, the IJ asked why the
interpreter was not taking notes and whether he was trained
to do so. When the interpreter asked the IJ to repeat his
very next question, the IJ confirmed that everyone else in
the room was able to hear him clearly.
8
Moreover, the BIA’s reliance on the IJ’s alternative
corroboration finding does not obviate the need for remand.
See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).
After declining to consider Xie’s evidence of translation
errors, the BIA observed that the IJ found Xie had not
provided reasonably available corroborative evidence, and
concluded that Xie’s new evidence of translation errors did
not alter its decision to agree with the IJ. However, as
noted above, the agency’s corroboration finding extended
only to Xie’s religious activities in the United States—the
agency did not find that Xie failed to sufficiently
corroborate his past harm in China. Because an applicant
may establish his eligibility for asylum solely on the basis
of past persecution, 8 C.F.R. § 1208.13(b)(1), we cannot
confidently predict that the agency would reach the same
result absent the BIA’s erroneous failure to consider Xie’s
evidence of translation errors. See Shunfu
Li, 529 F.3d at
150. Remand is therefore required for the BIA to consider
this evidence.
For the foregoing reasons, the petition for review in
Dkt. No. 13-2212 (L) is DENIED and the petition for review
in Dkt. No. 13-3527 (Con) is GRANTED. The case is remanded
to the BIA for further proceedings consistent with this
9
order. As we have completed our review, any stay of removal
that the Court previously granted in these petitions is
VACATED, and any pending motion for a stay of removal in
these petitions is DISMISSED as moot. Any pending request
for oral argument in these petitions is DENIED in accordance
with Federal Rule of Appellate Procedure 34(a)(2), and
Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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