Filed: Jun. 25, 2014
Latest Update: Mar. 02, 2020
Summary: 13-2294 Su v. Holder BIA IJ, Cheng A087 973 191 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
Summary: 13-2294 Su v. Holder BIA IJ, Cheng A087 973 191 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..
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13-2294
Su v. Holder
BIA
IJ, Cheng
A087 973 191
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 25th day of June, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
ROBERT D. SACK,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
WENXING SU, AKA WENJIN SU,
Petitioner,
v. 13-2294
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, Law Offices of Michael
Brown, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Paul Fiorino, Senior
Litigation Counsel; Judith R.
O’Sullivan, 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 DISMISSED in part and GRANTED in part, and the matter is
remanded for further consideration.
Wenxing Su, a native and citizen of the People’s
Republic of China, seeks review of a May 15, 2013, decision
of the BIA affirming the February 13, 2012, decision of an
Immigration Judge (“IJ”), pretermitting his asylum
application and denying withholding of removal and relief
under the Convention Against Torture (“CAT”). In re Wenxing
Su, No. A087 973 191 (B.I.A. May 15, 2013), aff’g No. A087
973 191 (Immig. Ct. N.Y. City Feb. 13, 2012). 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, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well established. See 8
2
U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
F.3d 510, 513 (2d Cir. 2009).
I. Asylum
Su’s asylum application was pretermitted by the agency
as untimely, as the agency determined that Su failed to
demonstrate by “clear and convincing evidence that the
application had been filed within 1 year after the date of
[Su’s] arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B). We lack jurisdiction to review the factual
determination that the application was untimely, but retain
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, 552 F.3d 277, 285 (2d Cir.
2009).
Su argues that the IJ mischaracterized his testimony as
inconsistent with a May 2009 hospital record and March 2009
physical examination report, thus raising a question of law.
However, this argument challenges the “IJ’s fact-finding
. . . and raises neither a constitutional claim nor a
question of law.” Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 329 (2d Cir. 2006). We thus lack jurisdiction
to review it. See 8 U.S.C. §§ 1158(a)(2)(B), (3),
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1252(a)(2)(D). Accordingly, we dismiss Su’s petition
insofar as it challenges the denial of his asylum
application.1
II. Withholding of Removal and CAT Relief
As Su’s application is governed by the REAL ID Act of
2005, the agency may “consider[] the totality of the
circumstances,” and base a credibility finding on the
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart
of the applicant’s claim.” See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008). We “defer . . . 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.
Here, the IJ’s inconsistency findings crucially rest on
mischaracterizations and impermissible speculation, and the
1
As we remand this decision on the grounds listed below,
nothing precludes the agency from reconsidering its
untimeliness finding, particularly as that finding largely
relies on the same credibility findings we find unsupported
by substantial evidence.
4
remaining grounds fail to sufficiently support the adverse
credibility determination.
The IJ based her inconsistency finding on two purported
discrepancies between Su’s testimony and documents that he
submitted. First, the IJ considered the date of a document
from a hospital inconsistent with Su’s testimony about the
date of his hospital stay. Su testified that he was
admitted to the hospital on May 28, 2009, and stayed for two
days. The document reflecting his hospitalization is dated
May 30, 2009. Absent evidence that Chinese hospital records
are always dated on the day of admission, rather than the
day of discharge (a highly dubious proposition), the
document appears consistent with Su’s testimony. Second,
the IJ considered Su’s testimony that he was married
inconsistent with an entry in his father’s household
registration booklet, which listed him as unmarried. But
that entry was made before Su’s marriage, and while the
entry was not updated when a new member was added to the
household registration booklet at a date after Su’s
marriage, that member was Su’s wife, who was listed as Su’s
father’s daughter-in-law. Once again, no meaningful
contradiction is apparent.
5
With regards to both of these purported discrepancies,
moreover, the IJ impermissibly speculated regarding
documentary practices in China. See Cao He Lin v. U.S.
Dep’t of Justice, 428 F.3d 391, 405 (2d Cir. 2005) (“Without
some specific evidence concerning practices in China,”
basing credibility findings on failure to satisfy particular
documentary practices is impermissible). The reasons for an
implausibility finding must be evident and not based on
flawed reasoning or speculation. See Wensheng Yan v.
Mukasey,
509 F.3d 63, 67 (2d Cir. 2007). Without further
support, it is speculation to presume that hospital visit
documentation in China is issued upon admission rather than
discharge, and that parental household registries are
inevitably updated in a comprehensive manner.
The IJ’s remaining findings do not rise to the level of
substantial evidence needed to support an adverse
credibility determination. The IJ observed immaterial
omissions in a letter from Su’s wife, and observed that Su
did not specifically document or precisely remember one
employer during a period of transitory work. These matters
are far too trivial to justify an adverse credibility
finding. Finally, the IJ relied on a tenuous finding that
6
Su’s demeanor was non-responsive and evasive. While we
usually defer to adverse demeanor findings, that deference
is diminished when it is not tethered to specific instances
of inconsistent testimony. See Li Hua Lin v. U.S. Dep’t of
Justice, 453 F.3d 99, 109 (2d Cir. 2006). A review of the
record demonstrates that the primary suggestion of
inconsistent testimony related to an exchange in which Su,
in response to an inquiry about documentation demonstrating
his entry date, clarified that his documentation
demonstrated his date of departure from China. Because the
departure evidence was circumstantial evidence of his entry
date, his testimony was not inconsistent or evasive, and
therefore did not support the demeanor finding. The record
as a whole confirms that Su’s testimony was consistent, both
internally and with his documentary evidence.
In sum, a consideration of the evidence cited by the IJ
in support of her adverse credibility finding, and
reiterated by the BIA, suggests that “no reasonable fact-
finder could make such an adverse credibility ruling,” Xiu
Xia Lin, 534 F.3d at 167, on the basis of the evidence and
reasoning before us. As this adverse credibility finding
comprised the grounds for denying Su’s withholding and CAT
7
applications, we conclude that a remand is warranted for
reconsideration of Su’s credibility. While we have no doubt
that the original IJ in this petition could reconsider the
matter impartially, in order to avoid any risk of the
appearance of partiality, we direct that the reconsideration
occur at a new hearing before a different IJ.
For the foregoing reasons, the petition for review is
DISMISSED with regard to the asylum application and GRANTED
with regard to the withholding and CAT applications. With
regard to the withholding and CAT applications, the matter
is remanded for reconsideration before a different IJ. As
we have completed our review, Su’s pending motion for a stay
of removal is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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