Filed: Sep. 26, 2019
Latest Update: Mar. 03, 2020
Summary: 17-2237 Li v. Barr BIA Schoppert, IJ A205 614 678 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 NOTAT
Summary: 17-2237 Li v. Barr BIA Schoppert, IJ A205 614 678 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 NOTATI..
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17-2237
Li v. Barr
BIA
Schoppert, IJ
A205 614 678
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of September, two thousand nineteen.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 WANGLIN LI,
14 Petitioner,
15
16 v. 17-2237
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Kenneth K. Ho, Flushing, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Sabatino F. Leo,
27 Senior Litigation Counsel; D.
28 Nicholas Harling, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, we hereby
3 ORDER, ADJUDGE, AND DECREE that the petition for review is
4 GRANTED.
5 Petitioner Wanglin Li, a native and citizen of the
6 People’s Republic of China, seeks review of a June 21, 2017,
7 decision of the BIA affirming an October 18, 2016, decision
8 of an Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Wanglin Li, No. A205 614 678 (B.I.A. June 21,
11 2017), aff’g No. A205 614 678 (Immig. Ct. N.Y. City Oct. 18,
12 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history of this case.
14 “Considering the totality of the circumstances, and all
15 relevant factors, a trier of fact may base a credibility
16 determination on . . . the consistency between the applicant’s
17 . . . written and oral statements . . . , the internal
18 consistency of each such statement, [and] the consistency of
19 such statements with other evidence of record . . . without
20 regard to whether an inconsistency, inaccuracy, or falsehood
21 goes to the heart of the applicant’s claim . . . .” 8 U.S.C.
22 § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d
2
1 162, 163–64 (2d Cir. 2008). We review adverse-credibility
2 findings for substantial evidence, treating them as
3 “conclusive unless any reasonable adjudicator would be
4 compelled to conclude to the contrary.” See 8 U.S.C.
5 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,
891 F.3d 67, 76
6 (2d Cir. 2018).
7 We have considered both the IJ’s and the BIA’s decisions
8 “for the sake of completeness.” Wangchuck v. Dep’t of
9 Homeland Sec.,
448 F.3d 524, 528 (2d Cir. 2006). Under the
10 “totality of the circumstances,” we find that each ground for
11 their adverse-credibility determination — and, hence, their
12 overall determination — is not supported by substantial
13 evidence.
14 First, the IJ’s finding that Li misled him by failing to
15 disclose his disorderly conduct conviction lacks a reasonable
16 basis in the record. Li’s initial application predated the
17 arrest and, although he checked the box for no arrests or
18 convictions on his amended application, he also attached the
19 certificate of disposition from his arrest and conviction.
20 While it is not clear why Li failed to update his application
21 form to reflect the conviction, his disclosure of his
22 conviction record undermines the IJ’s finding that Li “was
3
1 not truthful in regard to [his] arrest.” Moreover, Li
2 readily admitted that he had been arrested when asked and
3 recounted the charges against him. Thus, even under our
4 deferential standard of review, the IJ erred by using this
5 insubstantial oversight on Li’s behalf as a basis for his
6 adverse-credibility finding.
7 Second, the IJ erred by relying on a minor discrepancy
8 in Li’s descriptions of his treatment by Chinese authorities.
9 Li stated in his interview that an officer slapped him and
10 that he was punched, kicked, and hit with a baton before being
11 dragged into another room. However, while Li’s hearing
12 testimony was largely consistent with this account, he did
13 not mention being slapped at that time, and when asked about
14 the slaps, he said that he was slapped only after being
15 brought into the other room. While “an IJ may rely on any
16 inconsistency,” an inconsistency does not automatically mean
17 that an asylum applicant is not credible under the totality
18 of the circumstances. See Xiu Xia Lin, 534 F.3d at 167.
19 When viewed in light of the IJ’s erroneous finding that Li
20 was untruthful about his conviction, the inconsistency over
21 when Li was slapped does not, by itself, constitute
22 substantial evidence of adverse credibility. Cf. Lianping
4
1 Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (upholding an
2 adverse-credibility determination where the petitioner’s
3 “asylum application did not simply omit incidents of
4 persecution,” but “described the same incidents of
5 persecution differently,” such as “the timing of her forced
6 abortion, the detention of her husband, and her forced use of
7 an IUD”).
8 The agency would generally have the discretion to
9 determine how much weight to afford letters from Li’s
10 relatives, particularly because the letters were prepared for
11 Li’s removal proceedings and written by individuals who were
12 not available for cross-examination. See Y.C. v. Holder, 741
13 F.3d 324, 334 (2d Cir. 2013) (deferring to agency decision to
14 afford little weight to petitioner’s husband’s letter because
15 the letter was unsworn and from an interested witness).
16 However, absent other reliable findings calling credibility
17 into question, a lack of corroboration is not a basis for an
18 adverse-credibility determination. See Chuilu Liu v. Holder,
19
575 F.3d 193, 198 n.5 (2d Cir. 2009) (“[W]hile a failure to
20 corroborate can suffice, without more, to support a finding
21 that an alien has not met his burden of proof, a failure to
5
1 corroborate cannot, without more, support an adverse
2 credibility determination.”).
3 For the foregoing reasons, we GRANT the petition for
4 review, VACATE the BIA’s decision, and REMAND for further
5 proceedings consistent with this order.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe,
8 Clerk of Court
6
