Filed: Apr. 17, 2019
Latest Update: Mar. 03, 2020
Summary: 17-2620 Wu v. Barr BIA Kolbe, IJ A208 419 205 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: 17-2620 Wu v. Barr BIA Kolbe, IJ A208 419 205 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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17‐2620
Wu v. Barr
BIA
Kolbe, IJ
A208 419 205
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 16th day of April, two thousand
nineteen.
PRESENT:
AMALYA L. KEARSE,
DENNIS JACOBS,
PETER W. HALL,
Circuit Judges.
_____________________________________
DONG WU,
Petitioner,
v. 17‐2620
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jay Ho Lee, Jay Ho Lee Law Offices LLC,
New York, NY.
FOR RESPONDENT: Brendan P. Hogan, Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is GRANTED.
Petitioner Dong Wu, a native and citizen of the People’s Republic of China,
seeks review of a decision of the Board of Immigration Appeals (“BIA”)
affirming the decision of an Immigration Judge (“IJ”) denying Wu’s application
for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). Wu argues that the IJ’s adverse credibility determination was
not supported by substantial evidence. We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Where, as here, the BIA adopts and supplements the decision of the IJ, we
review the decision of the IJ as supplemented by the BIA. See Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review the agency’s factual
findings, including adverse credibility findings, under the substantial evidence
standard, treating them as “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Lin v.
Mukasey, 534 F.3d 162, 165‐66 (2d Cir. 2008).
1. Wu argues that the IJ improperly found that his testimony regarding
his 15‐day detention in China was vague. We agree.
Wu testified at the hearing that: he was detained for 15 days; he was
deprived of adequate food during that detention; he was beaten on his head and
legs approximately five times for about five minutes each time; and the police
used their “palm[s] to hit [his] head” and their legs “to hit [his] leg.” Certified
Administrative Record (“CAR”) 106. Such testimony is sufficiently detailed to
defeat an adverse credibility determination on vagueness grounds. See Qiu v.
Ashcroft, 329 F.3d 140, 151 (2d Cir. 2003) (“[T]estimony is ‘too vague’ if it doesn’t
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identify facts corresponding to each of the elements of one of the ‘refugee’
categories of the immigration statutes . . . .”), overruled on other grounds by Lin
v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007); Beskovic v. Gonzales, 467 F.3d
223, 226 (2d Cir. 2006) (observing that “a ‘minor beating’ . . . may rise to the level
of persecution if it occurred in the context of an arrest or detention on the basis of
a protected ground”).
Moreover, “in a proceeding wherein an alien seeks relief from removal, a
finding of testimonial vagueness cannot, without more, support an adverse
credibility determination unless government counsel or the IJ first attempts to
solicit more detail from the alien.” Li v. Mukasey, 529 F.3d 141, 147 (2d Cir.
2008); see Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 122 (2d Cir. 2006).
The IJ asked Wu no questions regarding his 15‐day detention, and the attorney
for DHS asked only the following:
Q: You were released from ‐‐ okay. You were detained for 15 days, is
that right?
A: Yes.
. . . .
Q: And before ‐‐ and you explained to the judge that you were
physically harmed while you were in detention, is that right?
A: Yes.
Q: Require any medical treatment?
A: No.
CAR 146, 152.
These three questions are not sufficiently probing of the circumstances of
Wu’s detention to justify an adverse credibility finding based on vagueness.
None of the questions provided Wu with any opportunity to elaborate, and two
of the questions simply sought confirmation of details to which Wu had already
testified. Accordingly, the IJ erred in relying on the vagueness of Wu’s
testimony regarding his 15‐day detention to discredit his testimony.
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2. Wu challenges the IJ’s demeanor finding as unsupported by the record.
The IJ found:
When asked whether or not he had been ordered to pay a fine or
report or be subject to any punishment after the 15‐day detention,
the respondent testified that he was not required. The court
observed the respondent’s demeanor at this point in his testimony
and found that it gave the impression of someone who had
rehearsed the facts.
CAR 50‐51. At the hearing, Wu was asked only two questions regarding his
subjection to fines and reporting requirements after he was released from
detention:
Q: Okay. Were you required to pay a fine at all?
A: No.
Q: Were you required to report back at all?
A: No.
CAR 141.
While particular deference is given to the trier of fact’s assessment of
demeanor, see Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005), a demeanor
finding based on the answers to two yes/no questions is not persuasive and is not
adequately supported by the evidence. Moreover, Wu’s testimony on these
points was not inconsistent with any other evidence. In his application for
asylum, Wu stated that, when he was released from detention, he “had to
promise not to attend or participate in any house church activities.” CAR 306.
He has never asserted that he was required to pay a fine or report to the police.
See Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (observing that
demeanor findings are more reliable when supported by “specific examples of
inconsistent testimony”). We cannot conclude that adequate support for the
demeanor finding was supplied by the IJ’s indication that she doubted the
veracity of Wu’s answers that were the very opposite of answers that would
4
have aided his claims.
3. Wu argues that the IJ incorrectly relied on a lack of corroborating
letters.1 “[T]o turn down a refugee candidate for want of sufficient
corroboration, the adjudicator must (a) identify the particular pieces of missing,
relevant documentation, and (b) show that the documentation at issue was
reasonably available to the petitioner.” Qiu, 329 F.3d at 153.
The IJ found:
When asked why he did not provide letters from persons who
could corroborate his claim, for example, the family friend who
advised him to attend the church, the respondent only testified that
he did not know. Given the respondent’s testimony that he
remained in contact with some of these individuals, the court finds it
significant that the record does not contain letters from these
individuals or other corroborating information.
CAR 51. The IJ apparently assumed that corroborating letters were “reasonably
available” to Wu because he was still in contact with “some of these
individuals.” Id.
Wu testified that he was in contact with two people in China who could
corroborate his story of detention: his mother, and the friend who (he said) hid
him when he escaped the church raid in 2015 that occurred when he returned to
the church for the first time after his detention. Wu provided a corroborating
letter from his mother. As to his “hiding friend,” Wu explained that he had
asked the friend for a letter, but the friend refused to write one. The IJ did not
cite to any evidence supporting a finding that the letter was somehow
“reasonably available” even though the friend had refused Wu’s request to write
1 As an initial matter, having determined that the IJ’s vagueness and demeanor
findings do not support a negative credibility determination, we note that a lack of
corroborating evidence alone does not defeat the claim of an applicant whose testimony
is credible, persuasive, and specific. See Urgen v. Holder, 768 F.3d 269, 273 (2d Cir.
2014) (per curiam) (“‘[A]n applicant can meet his burden of proof based on credible
testimony alone.’”); see also 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the applicant
may be sufficient to sustain the applicant’s burden without corroboration . . . .”).
5
one.
The IJ also specifically noted the lack of a letter from the “family friend
who advised [Wu] to attend the church.” CAR 51. But Wu did not testify that
he was still in contact with that friend, and there was no other testimony that
could support a finding that the family friend was otherwise reasonably
available.
4. Wu challenges the IJ’s implausibility finding regarding his baptism.
At the hearing, Wu testified that he was baptized in the United States on
April 4, 2006, in a special ceremony, held at the church sometime after the 11:00
a.m. service. While he recalled that the baptism was not immediately after the
service, he couldn’t recall exactly what time of day it was held. CAR 134‐35.
The IJ concluded that this testimony was “implausible” because Wu could not
“remember the time of day that [his baptism] occurred.” CA 52. But Wu did
remember when he was baptized‐‐it was sometime after the 11:00 a.m. service.
The fact that he did not remember (ten months later) the time of day of the
baptism does not make his testimony implausible, especially given that Wu
submitted a baptismal record that corroborated the date of the baptism. Id.
5. Accordingly, we conclude that four of the findings underlying the
IJ’s adverse credibility determination were infirm. However, even when an
adverse credibility determination is based in part on flawed grounds, we need
not remand if: “(1) substantial evidence in the record relied on by the IJ,
considered in the aggregate, supports the IJ’s finding that petitioner lacked
credibility, and (2) disregarding those aspects of the IJ’s reasoning that are
tainted by error, we can state with confidence that the IJ would adhere to his
decision were the petition remanded.” Li v. Lynch, 839 F.3d 144, 149 (2d Cir.
2016) (internal quotation marks and citation omitted). Here, given the number
of errors in the IJ’s findings supporting her adverse credibility determination, we
cannot confidently predict that the agency would reach the same conclusion on
remand.
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For the foregoing reasons, the petition for review is GRANTED, the BIA’s
decision is VACATED, and the case is REMANDED for further proceedings
consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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