Filed: May 25, 2012
Latest Update: Feb. 12, 2020
Summary: 11-507-ag Wu v. Holder BIA Bain, IJ A094 784 348 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
Summary: 11-507-ag Wu v. Holder BIA Bain, IJ A094 784 348 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 NOTATIO..
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11-507-ag
Wu v. Holder
BIA
Bain, IJ
A094 784 348
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 25th day of May, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSEPH M. McLAUGHLIN,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 RONG WU,
14 Petitioner,
15
16 v. 11-507-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: David A. Bredin, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; John S. Hogan, Senior
27 Litigation Counsel; Channah M.
28 Farber, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Rong Wu, a native and citizen of the
6 People’s Republic of China, seeks review of a January 14,
7 2011, order of the BIA affirming the October 6, 2009,
8 decision of Immigration Judge (“IJ”) Quynh Vu Bain, denying
9 her application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Rong Wu, No. A094 784 348 (B.I.A. Jan. 14, 2011), aff’g No.
12 A094 784 348 (Immig. Ct. N.Y. City Oct. 6, 2009). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA’s decision.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009). We grant the petition for
21 review and remand for further consideration as we cannot
22 conclude that the agency would reach the same result absent
23 the error in its adverse credibility determination.
2
1 The IJ found that Wu’s failure to disclose the fact
2 that she was detained and subject to a forcible abortion in
3 her visa application or during a related consular interview
4 undermined her credibility. However, this finding was not
5 supported by the record because the visa application Wu
6 completed asked only about criminal arrests and
7 prosecutions, and the record does not show that the forcible
8 abortion was related to a criminal proceeding.
9 Our conclusion that this finding was not supported by
10 the record does not end our inquiry. Remand is not
11 appropriate if “there is no realistic possibility that,
12 absent the error[] [we have identified], the IJ or BIA would
13 have reached a different conclusion” regarding Wu’s
14 credibility. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
15 391, 401 (2d Cir. 2005). Here, the agency reasonably relied
16 on discrepancies between Wu’s testimony about how she met
17 her fiancé and the fiancé’s statements in his 2006 petition
18 for Wu’s visa and the fact that while Wu was undisputedly in
19 the United States in 2008 the household register from China
20 that she submitted listed her as a member of her father’s
21 household. These findings are supported by the record, and
22 the agency was not compelled to accept Wu’s explanations
3
1 regarding the discrepancies between her and her fiance’s
2 statements about their relationship. See Majidi v.
3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
4 do more than offer a plausible explanation for his
5 inconsistent statements to secure relief; he must
6 demonstrate that a reasonable fact-finder would be compelled
7 to credit his testimony.” (internal quotation marks
8 omitted)).
9 However, these discrepancies concerned documents and
10 testimony unrelated to Wu’s central claim of past
11 persecution. Although we recognize that under the REAL ID
12 Act, “an IJ may rely on any inconsistency or omission in
13 making an adverse credibility determination as long as the
14 ‘totality of the circumstances’ establishes that an asylum
15 applicant is not credible,” see Xiu Xia Lin v. Mukasey, 534
16 F.3d 162, 167 (2d Cir. 2008) (quoting 8 U.S.C.
17 § 1158(b)(1)(B)(iii)), because these discrepancies are not
18 central to Wu’s claim we cannot conclude that, absent the
19 IJ’s conclusion that Wu failed to disclose her forced
20 abortion, the agency would necessarily have concluded that
21 the totality of the circumstances supported the adverse
22 credibility determination. Cf. Cao He
Lin, 428 F.3d at 401.
4
1 We are especially wary of presuming that the agency
2 would have found these discrepancies sufficient given the
3 caution to be used in basing credibility determinations on
4 an alien’s statements or actions in fleeing the country of
5 persecution, see Siewe v. Gonzales, 480 F.3d 160, 170-71 (2d
6 Cir. 2007) (pre-REAL ID Act case discussing limits to the
7 maxim of falsus in uno, falsus in omnibus), and the fact
8 that the discrepancy in the household register related to a
9 fact not in dispute, i.e., Wu’s presence in the United
10 States.
11 Accordingly, we remand the case for the agency to
12 reevaluate Wu’s credibility. Thus we do not address Wu’s
13 argument that the agency should have separately adjudicated
14 her claim for CAT relief. We express no opinion as to the
15 ultimate outcome on remand.
16 For the foregoing reasons, the petition for review is
17 GRANTED, and the case REMANDED for further proceedings
18 consistent with this order. As we have completed our
19 review, any pending motion for a stay of removal in this
20 petition is DISMISSED as moot. Any pending request for oral
21 argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6
