Filed: Jun. 20, 2014
Latest Update: Mar. 02, 2020
Summary: 11-4584 Zhou v. Holder BIA Lamb, IJ A087 638 607 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: 11-4584 Zhou v. Holder BIA Lamb, IJ A087 638 607 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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11-4584
Zhou v. Holder
BIA
Lamb, IJ
A087 638 607
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 20th day of June, two thousand fourteen.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_____________________________________
RUI ZHOU,
Petitioner,
v. 11-4584
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Troy Nader Moslemi, Moslemi and
Associates, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Keith I. McManus,
Senior Litigation Counsel; Tracie N.
Jones, 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.
Petitioner Rui Zhou, a native and citizen of China, seeks
review of a September 26, 2011, order of the BIA, affirming
the October 12, 2010, decision of Immigration Judge (“IJ”)
Elizabeth A. Lamb, which pretermitted his application for
asylum and denied withholding of removal and relief under the
Convention Against Torture (“CAT”). See In re Rui Zhou, No.
A087 638 607 (B.I.A. Sept. 26, 2011), aff’g No. A087 638 607
(Immig. Ct. New York City Oct. 12, 2010). 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 decisions of both the IJ and the BIA. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
534
F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
I. Pretermission of Asylum
Title 8, Section 1158(a)(3) of the United States Code
provides that no court shall have jurisdiction to review the
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agency’s finding that an asylum application was untimely under
8 U.S.C. § 1158(a)(2)(B). Nevertheless, we retain
jurisdiction to review constitutional claims and “questions of
law.” 8 U.S.C. § 1252(a)(2)(D). Accordingly, we have
jurisdiction to review a pretermission determination where it
is claimed that the IJ’s fact-finding is flawed by an error of
law, such as a material misstatement of the record. See Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
2006).
As Zhou correctly notes, in pretermitting Zhou’s asylum
application as untimely, the IJ predicated her determination
on material misstatements of the record. Specifically, the IJ
rejected Zhou’s testimony that he had just arrived in the
United States for the first time within one year of filing for
asylum, despite his submission of a travel receipt reflecting
that he was outside of the United States within a year of
filing, because the IJ found that Zhou inconsistently
testified that he arrived in San Diego in February 2003 and in
California in 2005. The record, however, shows that Zhou
testified that he arrived in San Diego on February 3rd and in
California on February 5th of 2008. See CAR at 90. In short,
the IJ’s adverse credibility finding appears to be based on a
3
significant discrepancy in dates that does not exist.
Further, in concluding that Zhou’s application was untimely,
the IJ cited to testimony of Zhou’s uncle that he was not
aware of the contents of his own affidavit. While a witness’s
failure to read his own affidavit is disturbing, and while the
weight accorded to an applicant’s evidence lie largely within
the agency’s discretion, Xiao Ji Chen, 471 F.3d at 342, here,
the uncle’s testimony was consistent with his affidavit and
neither that testimony nor the affidavit represented that
Zhou’s uncle had any first-hand knowledge of when Zhou entered
the United States. Thus, absent any explanation as to how the
uncle’s failure to review his own affidavit related to the
timeliness of Zhou’s application, any reliance on this fact in
pretermitting the application was an abuse of discretion. See
Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d 83, 93 (2d
Cir. 2001). Moreover, although the agency based its
pretermission of asylum, in part, on Zhou’s failure to testify
credibly, as discussed below, the agency’s adverse credibility
determination raises other concerns.
II. Adverse Credibility Determination
For asylum applications, like Zhou’s, governed by the
REAL ID Act, the agency may base a credibility finding on an
4
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). This Court “defer[s] to an IJ’s credibility
determination unless, from the totality of the circumstances,
it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
As noted above, the agency erred in basing its adverse
credibility determination on a purported testimonial
inconsistency regarding the year Zhou first entered the United
States. See Dong Gao v. BIA, 482 F.3d 122, 133 (2d Cir. 2007)
(noting that court of appeals “cannot sustain an adverse
credibility finding . . . that is ‘based upon . . . a
misstatement of the facts in the record’” (citation omitted;
alterations in original)). The IJ also found that Zhou
testified inconsistently about whether he left China on
November 27th of 2008 or 2009. The inconsistency is evidenced
in a single phrase—in which Zhou stated that he left China in
2008, then stated it was in 2009 and finally corrected himself
and said he left in 2008. Even assuming that this statement
manifests inconsistency, it was not a proper basis for the
agency’s adverse credibility determination because it was
5
non-obvious and Zhou was not confronted with it or afforded an
opportunity to explain. See Ming Shi Xue v. BIA, 439 F.3d
111, 125 (2d Cir. 2006). Accordingly, the agency’s adverse
credibility determination was not properly based on Zhou’s
purported testimonial inconsistencies regarding when he left
China and entered the United States. See id.; Dong
Gao, 482
F.3d at 133; see also Xiu Xia
Lin, 534 F.3d at 167.
The agency also erred in basing its adverse credibility
determination on a purported inconsistency between the
testimony of Zhou and one of his witnesses about Zhou’s church
attendance in the United States. See Dong Gao, 482 F.3d at
133; see also Xiu Xia
Lin, 534 F.3d at 167. Although the IJ
found that the witness could not remember the last time she
went to church with Zhou and Zhou testified that they went to
church together in September 2010, Zhou’s testimony concerned
when he last saw the witness at the church, while the
witness’s testimony concerned when she last attended the
church with Zhou.
While the agency was correct that Zhou’s testimony was
inconsistent with his application regarding whether his
parents were arrested in China, because two of the three bases
on which the agency placed substantial relevance for its
adverse credibility determination were predicated on clear
6
misstatements of the record, we deem it “plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167; see Dong
Gao, 482 F.3d
at 133. Moreover, in such circumstances, we cannot
confidently predict that remand of these proceedings would be
futile. See Shunfu Li v. Mukasey,
529 F.3d 141, 150 (2d Cir.
2008).
For the foregoing reasons, the petition for review is
GRANTED and the case is REMANDED to the BIA for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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