Filed: Jul. 24, 2019
Latest Update: Mar. 03, 2020
Summary: 17-3586 Lin v. Barr BIA Loprest, IJ A201 124 147 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: 17-3586 Lin v. Barr BIA Loprest, IJ A201 124 147 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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17-3586
Lin v. Barr
BIA
Loprest, IJ
A201 124 147
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 24th day of July, two thousand nineteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 ZHONGHUANG LIN,
14 Petitioner,
15
16 v. 17-3586
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Holly M. Smith,
27 Kohsei Ugumori, Senior Litigation
28 Counsel, Office of Immigration
29 Litigation, United States
30 Department of Justice, Washington,
31 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Zhonghuang Lin, a native and citizen of the
6 People’s Republic of China, seeks review of an October 11,
7 2017, decision of the BIA affirming a February 1, 2017,
8 decision of an Immigration Judge (“IJ”) denying Lin’s
9 application for asylum and withholding of removal. In re
10 Zhonghuang Lin, No. A201 124 147 (B.I.A. Oct. 11, 2017), aff’g
11 No. A201 124 147 (Immig. Ct. N.Y. City Feb. 1, 2017). We
12 assume the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified by the BIA, i.e., minus the
16 IJ’s burden findings that the BIA declined to reach. See Xue
17 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
18 Cir. 2005). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
20 Sessions,
891 F.3d 67, 76 (2d Cir. 2018).
21 One Year Bar
22 Under 8 U.S.C. § 1158(a)(2)(B), an alien is ineligible
23 for asylum “unless the alien demonstrates by clear and
2
1 convincing evidence that the application has been filed
2 within 1 year after the date of the alien’s arrival in the
3 United States.” Our jurisdiction to review findings
4 regarding the timeliness of an asylum application is limited
5 to “constitutional claims or questions of law.” 8 U.S.C.
6 § 1252(a)(2)(D); see 8 U.S.C. § 1158(a)(3). The agency erred
7 as a matter of law in its determination that Lin failed to
8 satisfy his burden of proving that he arrived in the United
9 States within the year prior to filing his application in
10 February 2011.
11 The agency errs as a matter of law when it “totally
12 overlook[s]” or “seriously mischaracterize[s]” material
13 facts. Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009).
14 The IJ incorrectly determined that Lin failed to provide
15 details of the circumstances of his arrival in the United
16 States when Lin testified extensively and provided specific
17 details of his travels from China to New York. The IJ also
18 erred in finding that Lin’s sister-in-law’s corroborating
19 affidavit was not based on personal knowledge regarding Lin’s
20 arrival because she attested to having picked Lin up after he
21 arrived in New York with the assistance of a human trafficker.
22 Otherwise, the IJ relied on his adverse credibility
23 determination, which as discussed below, is problematic.
3
1 Accordingly, the agency erred as a matter of law in
2 pretermitting Lin’s asylum application as untimely. See
3 8 U.S.C. §§ 1158(a)(2)(B), 1252(a)(2)(D); Mendez, 566 F.3d at
4 323.
5 Asylum and Withholding: Adverse Credibility Determination
6 “Considering the totality of the circumstances, and all
7 relevant factors, a trier of fact may base a credibility
8 determination on the demeanor, candor, or responsiveness of
9 the applicant . . . , the consistency between the applicant’s
10 or witness’s written and oral statements . . . , the internal
11 consistency of each such statement, the consistency of such
12 statements with other evidence of record . . . without regard
13 to whether an inconsistency, inaccuracy, or falsehood goes to
14 the heart of the applicant’s claim, or any other relevant
15 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.
16 Mukasey,
534 F.3d 162, 163-64 (2d Cir. 2008). The agency’s
17 determination that Lin was not credible as to his claim that
18 he was detained and beaten in China on account of his
19 religious practice is not supported by substantial evidence.
20 Although the agency reasonably found Lin’s demeanor
21 problematic given his hesitant and evasive testimony, see
22 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales,
430 F.3d
23 77, 81 n.1 (2d Cir. 2005), the agency’s findings that Lin’s
4
1 testimony was inconsistent are not supported by the record.
2 First, Lin’s affirmative response to his attorney’s leading
3 question about whether he came to the United States to gain
4 independence from his family and his testimony that he came
5 to the country for fear of persecution were not inconsistent
6 as those statements were not mutually exclusive. Further,
7 Lin’s testimony that police beat him with a baton was not
8 inconsistent with his application statement that police
9 slapped him in the face and hit him with a baton. Contrary
10 to the IJ’s finding that Lin submitted a letter from a fellow
11 church member in China, but inconsistently testified that he
12 stopped all communication with members of his unregistered
13 church after his release from detention, Lin testified that
14 he had maintained contact with one or two church members (he
15 testified that he had no further contact with government
16 cadres).
17 The IJ also erroneously found that “Lin took pains in
18 his testimony to indicate that his congregation conducted its
19 meetings in a clandestine manner in order to avoid police
20 detection and that its members considered it ‘very important’
21 to keep all information about the congregation secret,” and
22 then testified inconsistently that he and other church
23 members passed out religious flyers on the street. The IJ’s
5
1 characterization of Lin’s testimony is flawed. Lin testified
2 that he told his classmates that he attended church and his
3 only testimony that his church operated in secret resulted
4 from his attorney’s repeated leading questions. Therefore,
5 given his testimony that he did not hide his religious
6 practice from his classmates, his claim that he passed out
7 flyers on the street was not incongruent.
8 The only discrepancy that has support in the record is a
9 minor date discrepancy regarding whether a hotel receipt—used
10 to establish that Lin was in China within one year of filing
11 his asylum application—was dated February or March 2010.
12 However, such an isolated and minor date discrepancy “need
13 not be fatal to credibility.” Diallo v. INS, 232 F.3d 279,
14 288 (2d Cir. 2000).
15 Accordingly, the only error-free basis for questioning
16 Lin’s credibility was his demeanor, which we have stated may
17 alone be insufficient to support an adverse credibility.
18 See, e.g., Feng Lin v. Holder, 433 F. App’x 39, 40 (2d Cir.
19 2011) (summary order). Although the IJ did not err in finding
20 that Lin’s corroborating evidence was insufficient to
21 rehabilitate credibility, given the errors in the adverse
22 credibility determination, it is not clear that his
23 credibility needed rehabilitating. See Biao Yang v.
6
1 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007); cf. Wei Sun v.
2 Sessions,
883 F.3d 23, 31 (2d Cir. 2018) (discussing
3 procedural safeguards the IJ must follow before relying on
4 lack of corroboration to deny relief to a credible applicant).
5 Because of the significant errors in the agency’s
6 inconsistency findings, we cannot “confidently predict”
7 whether the agency would reach the same result absent the
8 errors and remand is required. Xiao Ji Chen v. U.S. Dep’t
9 of Justice,
471 F.3d 315, 339 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 GRANTED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe
20 Clerk of Court
7
