Filed: Dec. 13, 2018
Latest Update: Mar. 03, 2020
Summary: 16-3144 Xiao v. Whitaker BIA Poczter, IJ A205 589 688 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 N
Summary: 16-3144 Xiao v. Whitaker BIA Poczter, IJ A205 589 688 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 NO..
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16-3144
Xiao v. Whitaker
BIA
Poczter, IJ
A205 589 688
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 13th day of December, two thousand
5 eighteen.
6
7 PRESENT:
8 JOHN M. WALKER, JR.,
9 RICHARD C. WESLEY,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 QIAN WU XIAO, AKA XIAO QIAN WU,
15 Petitioner,
16
17 v. 16-3144
18 NAC
19 MATTHEW G. WHITAKER, ACTING
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Dehai Zhang, Flushing, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Stephen J.
28 Flynn, Assistant Director; Jeffrey
29 R. Meyer, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is GRANTED.
9 Petitioner Qian Wu Xiao, a native and citizen of the
10 People’s Republic of China, seeks review of an August 18,
11 2016, decision of the BIA affirming an April 7, 2015, decision
12 of an Immigration Judge (“IJ”) denying Xiao’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Qian Wu Xiao, No.
15 A 205 589 688 (B.I.A. Aug. 18, 20(16), aff’g No. A 205 589 688
16 (Immig. Ct. N.Y. City Apr. 7, 2015). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case. Briefly, the claim of persecution is based on
19 the alleged conduct of the police, including beating Xiao
20 while in detention for her participation in an underground
21 church in China.
22 Under the circumstances of this case, we have reviewed
23 both the IJ’s and BIA’s decisions “for the sake of
2
1 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
2 524, 528 (2d Cir. 2006). We review an adverse credibility
3 determination for substantial evidence. See 8 U.S.C.
4 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-
5 66 (2d Cir. 2008).
6 The agency may, “[c]onsidering the totality of the
7 circumstances,” base an adverse credibility ruling on:
8 [T]he consistency between the applicant’s or
9 witness’s written and oral statements . . . the
10 consistency of such statements with other evidence
11 of record . . . and any inaccuracies or falsehoods
12 in such statements, without regard to whether an
13 inconsistency, inaccuracy, or falsehood goes to the
14 heart of the applicant’s claim, or any other
15 relevant factor.
16
17 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin,
534 F.3d
18 at 163-64, 166-67 & n.3. Since the agency’s decision in this
19 case, we have clarified the standards for the agency’s
20 reliance on omissions. “Although IJs may rely on non-
21 material omissions and inconsistencies, not all omissions and
22 inconsistencies will deserve the same weight.” Hong Fei Gao
23 v. Sessions,
891 F.3d 67, 77 (2d Cir. 2018). Instead, the
24 agency must “distinguish between (1) omissions that arise
25 merely because an applicant’s oral testimony is more detailed
3
1 than his or her written application, and (2) omissions that
2 tend to show that an applicant has fabricated his or her
3 claim.” Id. at 82.
4 In this case, the agency relied on omissions regarding
5 Xiao’s medical treatment and police visit and calls. When
6 asked on cross examination if she received medical treatment,
7 Xiao testified that she went to a local clinic with her father
8 the day she was released from detention for an exam and an x-
9 ray. She also testified that police officers came to her
10 house a week after her release and then called her house
11 repeatedly demanding that she report to the police station.
12 These facts were not included in Xiao’s application,
13 affidavit, or direct testimony, or in her father’s letter.
14 Xiao explained that she forgot to tell her lawyer about the
15 medical treatment and police visit and calls and did not know
16 why her father failed to mention them.
17 Because the omissions in this case are very similar to
18 those at issue in Hong Fei Gao, we remand for the agency to
19 reconsider the adverse credibility determination in the first
20 instance.
See 891 F.3d at 79-81. On remand, the agency
21 should consider (1) whether Xiao’s testimony regarding her
4
1 medical treatment and police contact supplemented, or
2 contradicted, the information in her application and
3 affidavit, (2) whether Xiao’s father’s omissions created any
4 inconsistencies with Xiao’s testimony, and (3) the
5 seriousness of the omissions, taking into account the
6 significance of the events Xiao described, whether her
7 testimony about these events was brief or detailed, and
8 whether it arose in response to specific questions from the
9 IJ or on cross examination. Hong Fei Gao, 891 F.3d at 79-
10 82.
11 In sum, under the framework articulated in Hong Fei Gao,
12 Xiao’s and her father’s omissions do not appear to provide
13 substantial evidence for the adverse credibility ruling.
14 Thus, we remand for the agency to reconsider Xiao’s claim.
15 For the foregoing reasons, the petition for review is
16 GRANTED, the BIA’s decision is VACATED, and the case is
17 REMANDED to the BIA for further proceedings consistent with
18 this order. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition is
20 VACATED, and any pending motion for a stay of removal in this
21 petition is DISMISSED as moot. Any pending request for oral
5
1 argument in this petition is DENIED in accordance with Federal
2 Rule of Appellate Procedure 34(a)(2), and Second Circuit
3 Local Rule 34.1(b).
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
6
