14-1102
    Jiang v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A087 651 018
                          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 TO 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
    2nd day of July, two thousand fifteen.

    PRESENT:
             GUIDO CALABRESI,
             BARRINGTON D. PARKER,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    JING PENG JIANG,
             Petitioner,

                     v.                                              14-1102
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Zhen Liang Li, New York, NY.

    FOR RESPONDENT:                      Joyce R. Branda, Acting Assistant
                                         Attorney General; Terri J. Scadron,
                                         Assistant Director; Aaron D. Nelson,
                                         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 Jing Peng Jiang, a native and citizen of China,

seeks review of a March 21, 2014 decision of the BIA affirming

a September 23, 2011 decision of an Immigration Judge (“IJ”)

denying Jiang’s application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”).    In

re Jing Peng Jiang, No. A087 651 018 (B.I.A. Mar. 21, 2014),

aff’g No. A087 651 018 (Immig. Ct. N.Y. City Sept. 23, 2011).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    We have reviewed the IJ’s decision as modified by the BIA

(i.e., minus the IJ’s adverse credibility determination).   See

Xue Hong Yang v. U.S. Dep’t of Justice, 

, 522 (2d

Cir. 2005).    The applicable standards of review are well

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

v. Holder, 

, 513 (2d Cir. 2009).
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       An asylum applicant’s testimony “may be sufficient” to

sustain his burden of proof if it is credible and persuasive.

8 U.S.C. § 1158(b)(1)(B)(ii). “Where the trier of fact,”

however, “determines that the applicant should provide evidence

that corroborates otherwise credible testimony, such evidence

must be provided unless the applicant does not have the evidence

and cannot reasonably obtain the evidence.” 

an asylum application for failure to corroborate, the IJ must

identify the corroborating evidence that the applicant should

have    presented,    and   explain       why    such   evidence   would   be

reasonably available.        Yan Juan Chen v. Holder, 

,

253 (2d Cir. 2011).         Ultimately, an applicant for asylum or

withholding of removal bears the burden of proving that she is

a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A) and

is therefore eligible for asylum. 8 U.S.C. § 1158(b)(1)(B)(i).

       In this case, the IJ first determined that Jiang was not

credible.     Because of that determination, the IJ ruled that

Jiang would need to present “the best corroborating evidence,”

and     the   “most    corroborating            evidence   possible.”      As

corroboration, Jiang presented photos of himself participating

in Falung Gong activities, letters written on his behalf from
                                      3
friends and family members, and the live testimony of a friend

in the United States.      The IJ did not discount this evidence

entirely, but did give it limited weight.            After considering

both the “problems with [Jiang’s] credibility” and the limited

weight given to the corroborating evidence, the IJ concluded

that, “in total,” Jiang had failed to meet his burden of proof.

      On appeal, the BIA did not reach the credibility issue, and

affirmed solely on the ground that Jiang “did not satisfy his

burden to adequately corroborate his claim.”           This was error.

The   IJ’s   credibility   and   corroboration       rulings   were   not

separate and independent grounds for dismissing Jiang’s claims.

Instead, the IJ made clear that the adequacy of Jiang’s

corroboration     was   dependent   on   the    credibility,   or     lack

thereof, of his testimony. The “best” and “most” corroboration

was   demanded    precisely   because     the   IJ   considered     Jiang

incredible.      Moreover, the IJ’s ultimate conclusion that Jiang

had failed to meet his burden was made “in total”—i.e., based

on an assessment of both Jiang’s credibility and the strength

of his corroborating evidence.          As such, it is impossible to

assess what impact Jiang’s corroborating evidence would have

had if the IJ had found him credible.       Even had Jiang been found
                                    4
credible, the IJ might nevertheless have required him to present

some—but   perhaps     not   the   “best”    or   “most”—corroborating

evidence to support his testimony.          Or the IJ might have found

Jiang’s    testimony    sufficient,      absent    any   corroborating

evidence at all.     Accordingly, the BIA should have addressed

the IJ’s adverse credibility ruling before assessing the

corroborating evidence.       Cf. Diallo v. I.N.S., 

,

287 (2d Cir. 2000) (BIA’s failure to make credibility assessment

“frustrates appellate review” and denies asylum-seekers the

potential benefit of establishing their claims with credible

testimony alone). We therefore remand to the BIA so that it may

either (a) affirm the IJ’s credibility determination, or (b)

remand the case to the IJ for a decision on whether Jiang’s

corroborating evidence would have sufficed on the assumption

that he testified credibly.

    For the foregoing reasons, the petition for review is

GRANTED, we VACATE the BIA’s order, and REMAND for further

proceedings consistent with this order.



                                   FOR THE COURT:
                                   Catherine O=Hagan Wolfe, Clerk

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