12-3209
    Zheng v. Holder
                                                                                   BIA
                                                                          Balasquide, IJ
                                                                          A087 634 499
                        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
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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 17th day of December, two thousand thirteen.

    PRESENT:
             JON O. NEWMAN,
             DENNIS JACOBS,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    SU ZHENG,
                      Petitioner,

                      v.                                   12-3209
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                  Lee Ratner, New York, New York.

    FOR RESPONDENT:                  Stuart F. Delery, Principal Deputy
                                     Assistant Attorney General; Terri J.
                                     Scadron, Assistant Director;
                                     Genevieve Holm, 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, and the case is REMANDED.

    Su Zheng, a native and citizen of the People’s Republic

of China, seeks review of a July 24, 2012, decision of the

BIA denying her motion to remand and affirming the February

25, 2011, decision of Immigration Judge (“IJ”) Javier

Balasquide, pretermitting her asylum application.     In re Su

Zheng, No. A087 634 499 (B.I.A. July 24, 2012), aff’g No.

A087 634 499 (Immig. Ct. N.Y. City Feb. 25, 2011).     We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    Under the circumstances of this case, we have reviewed

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 Yanqin Weng v. Holder,

, 513 (2d Cir. 2009).   Because Zheng does not

challenge the denial of her motion to remand, we address

only the pretermission of her claim for asylum.

    An asylum applicant must demonstrate “by clear and

convincing evidence,” through credible testimony or reliable

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corroborating evidence, that she filed her application

within one year after the date of her “arrival in the United

States.”   8 U.S.C. § 1158(a)(2)(B).   The agency ruled that

Zheng was not credible in testifying that she arrived in the

United States on September 12, 2008, within one year of her

application for asylum on July 31, 2009.

    While this Court lacks jurisdiction to review the

determination that an asylum application is untimely, it

retains jurisdiction to consider constitutional claims or

questions of law.     See 8 U.S.C. §§ 1158(a)(2)(B), (3),

1252(a)(2)(D); Dong Zhong Zheng v. Mukasey, 

,

285 (2d Cir. 2009).    Zheng argues that the IJ erred in

deeming two aspects of her testimony inconsistent with a

record from her hospital visit, thus raising a question of

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

, 328-29 (2d Cir. 2006). Zheng testified that her illness

began 4 or 5 days prior to her hospital visit; the hospital

record indicated one week.    Zheng described the department

where she was treated as the “[c]old department, the

department that treats cold and cough”; the hospital record

identified the department as the    “outpatient department.”




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    These alleged “inconsistencies” are not merely trivial,

they cannot reasonably be deemed inconsistencies at all.

Characterizing a time interval as a “week” is not

necessarily a precise measurement of seven days.     When the

hospital attendant heard Zheng complain of symptoms for 4 or

5 days, the attendant might well have thought Zheng was

describing the working days of the prior week.     Nor was

there an inconsistency as to the identification of the

treating department.   After first using the phrase “[c]old

department,” Zheng immediately amplified her answer to say

“the department that treats cold and cough.”     Obviously, the

“outpatient department,” as identified in the hospital

record, is the department “that treats cold and cough,” as

identified by Zheng.

    Zheng’s credibility as to her date of arrival in the

United States, which is critical to the timeliness of her

asylum claim, must be reconsidered without reliance on these

two items of supposed inconsistency.

    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




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