09-3844-ag
Qiu v. Holder
                                                                                 BIA
                                                                        Balasquide, IJ
                                                                        A098 593 567
                     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 18 th day of August, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         DENNY CHIN,
             Circuit Judges.
_______________________________________

BI YING QIU,
         Petitioner,

                v.                                                 09-3844-ag
                                                                          NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Thomas V. Massucci, New York, N.Y.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Shelley R. Goad, Assistant Director;
                               Kristen   Giuffreda   Chapman,    Trial
                               Attorney,    Office   of    Immigration
                               Litigation, Civil Division, United
                               States    Department     of    Justice,
                               Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

review is REMANDED.

    Petitioner   Bi   Ying   Qiu,   a   native   and   citizen   of   the

People’s Republic of China, seeks review of a August 17, 2009,

order of the BIA, affirming the September 13, 2007, decision

of Immigration Judge (“IJ”) Javier E. Balasquide, denying her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).           In re Bi Ying

Qiu, No. A098 593 567 (B.I.A. Aug. 17, 2009), aff’g No. A098

593 567 (Immig. Ct. N.Y. City Sept. 13, 2007).           We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

    Because the BIA stated, “We adopt and affirm the decision

of the Immigration Judge,” we review the IJ’s decision.               See

Mei Chai Ye v. U.S. Dep’t of Justice, 

, 523 (2d

Cir. 2007).    The applicable standards of review are well-

established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 

, 513 (2d Cir. 2009).




                                -2-
      The IJ made an adverse credibility determination. 1              In

support of that determination, the IJ relied primarily on

discrepancies as to the year in which three events occurred:

the government’s banning of the Falun Gong, Qui’s becoming

involved with the Falun Gong, and Qui’s first persecution for

his Falun Gong activity.            Qui testified that these three

events occurred in 1997, but also testified that all three

occurred in 1999. At times he answered 1999 and immediately

corrected himself to say 1997. However,              at all times Qui

linked the year of these events to the time when he was 17

years old. Since He testified that he was born in 1982, he was

17 in 1999, and obviously intended to place the three events

in   the   year   1999.   As   he   stated   when   pressed   about   the

discrepancies as to years, “I only remember that I was 17

years old at that time, that’s what I remember the most, that

I was 17. . . . In terms of which year, I don’t remember.”

When pressed on cross-examination, “You don’t remember what

year you were 17 years old?” he answered, “I didn’t do the

calculation.”




      Because Qiu filed her asylum application before May 11, 2005,
      1

the amendments made to the Immigration and Nationality Act by the
REAL ID Act of 2005 do not apply to her asylum application. See
Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005).

                                    -3-
       Incredibly,        Qui’s   lawyer      conducted   no     redirect

examination, which could have readily made the record even

clearer that Qui at all times meant to place the key events in

the year 1999, 17 years after the year of his birth.

       Although an IJ is entitled to discredit an applicant’s

testimony based on material discrepancies, an IJ is obliged to

consider an applicant’s explanation. See Cao He Lin v. U.S.

Dep’t of Justice, 

, 403 (2d Cir. 2005).               In this

case, the IJ failed to do so.             Instead, he simply recounted

the three events that Qui placed in both 1997 and 1999 and did

not reckon with her explanation that she was sure that all

three events occurred in the year when she was 17, i.e., 1999.

This    flaw   in   the    IJ’s   reasoning    requires   a    remand   for

reconsideration.

       For the foregoing reasons, the petition for review is

GRANTED, and the case is REMANDED for further consideration.

                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk




                                    -4-