Filed: Sep. 16, 2020
Latest Update: Sep. 16, 2020
Summary: 18-2330 Zheng v. Barr BIA Poczter, IJ A209 127 618 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 NOTA
Summary: 18-2330 Zheng v. Barr BIA Poczter, IJ A209 127 618 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 NOTAT..
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18-2330
Zheng v. Barr
BIA
Poczter, IJ
A209 127 618
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 16th day of September, two thousand twenty.
5
6 PRESENT:
7 JON O. NEWMAN,*
8 JOSEPH F. BIANCO,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 HAI QIN ZHENG,
14 Petitioner,
15
16 v. 18-2330
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead,
24 NJ.
25
* Circuit Judge Peter W. Hall, originally a member of the panel, is currently
unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the
panel for this matter. See 2d Cir. IOP E(b).
1 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
2 Attorney General; Paul Fiorino,
3 Senior Litigation Counsel; Andrew
4 B. Insenga, Trial Attorney, Office
5 of Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is GRANTED.
12 Petitioner Hai Qin Zheng, a native and citizen of the
13 People’s Republic of China, seeks review of a July 24, 2018
14 decision of the BIA affirming a September 12, 2017 decision
15 of an Immigration Judge (“IJ”) denying Zheng’s application
16 for asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”). In re Hai Qin Zheng, No.
18 A 209 127 618 (B.I.A. July 24, 2018), aff’g No. A 209 127 618
19 (Immig. Ct. N.Y. City Sep. 12, 2017). We assume the parties’
20 familiarity with the underlying facts and procedural history.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision as modified by the BIA, i.e., minus the
23 finding on which the BIA declined to rely. See Xue Hong Yang
24 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
25 The applicable standards of review are well established. See
2
1 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
2 67, 76 (2d Cir. 2018) (reviewing adverse credibility
3 determination under a substantial evidence standard); Lecaj
4 v. Holder,
616 F.3d 111, 114 (2d Cir. 2010) (reviewing factual
5 findings for substantial evidence and questions of law and
6 application of law to fact de novo). “Considering the
7 totality of the circumstances, and all relevant factors, a
8 trier of fact may base a credibility determination on . . .
9 the consistency between the applicant’s or witness’s written
10 and oral statements . . . , the internal consistency of each
11 such statement, the consistency of such statements with other
12 evidence of record . . . , and any inaccuracies or falsehoods
13 in such statements, . . . or any other relevant factor.”
14 8 U.S.C. § 1158(b)(1)(B)(iii). While the agency “may rely
15 on any inconsistency or omission in making an adverse
16 credibility determination,” Xiu Xia Lin v. Mukasey,
534 F.3d
17 162, 167 (2d Cir. 2008), “omissions are less probative of
18 credibility than inconsistencies created by direct
19 contradictions in evidence and testimony,” Hong Fei Gao,
891
20 F.3d at 78 (internal quotation marks omitted). We have
21 concluded that remand is warranted because the agency found
3
1 Zheng not credible based entirely on omissions from her
2 written statement and her father’s letter about treatment she
3 received at a clinic following her alleged detention and a
4 police visit to her home following her departure from China.
5 First, the agency erred in relying on the omission from
6 Zheng’s father’s letter that Zheng received treatment at a
7 clinic. Id. at 79 (“Although the fact that petitioners
8 visited clinics for medical treatment may be probative of the
9 degree of harm they suffered, the omissions of these details
10 from petitioners’ initial applications did not warrant the
11 heavy weight afforded to them by the IJs and the BIA.”).
12 This omission is not sufficiently probative in this case to
13 support an adverse credibility determination because it
14 relates to a detail about the “aftermath of the alleged
15 persecution,” Zheng did not allege any serious injury or
16 extensive treatment, and the third-party omission did not
17 create any actual inconsistency. See
id. at 80–81.
18 Given this error, we conclude that remand is warranted
19 because the remaining omission, by itself, does not
20 constitute substantial evidence that would support the
21 adverse credibility determination, and it is far from clear
4
1 based on the record that the same decision would be reached
2 on remand. “[W]here the IJ or the BIA has committed legal
3 error, . . . we will affirm only when remanding the case to
4 the agency would be futile—namely, a) when the IJ articulates
5 an alternative and sufficient basis for her determination; b)
6 when her reliance on the erroneous aspect of her reasoning is
7 substantially tangential to her non-erroneous findings; or c)
8 when overwhelming evidence in the record makes it clear that
9 the same decision is inevitable on remand, or, in short,
10 whenever the reviewing panel is confident that the agency
11 would reach the same result upon a reconsideration cleansed
12 of errors.” Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019)
13 (internal quotation marks omitted). The remaining finding—
14 that Zheng’s amended written statement and her father’s
15 letter omitted that the police visited Zheng’s family after
16 she left China—is not “overwhelming evidence” of Zheng’s lack
17 of credibility. See
id. While this is a fact that would
18 have bolstered Zheng’s claim, the record does not support a
19 conclusion that this was a significant event because the
20 allegation arose only in response to a direct question on
21 cross-examination, and she testified that the police simply
5
1 asked her father for her whereabouts and then left. See Hong
2 Fei Gao, 891 F.3d at 80 (An omission that comes out on cross-
3 examination is less probative because “[i]t [i]s not as though
4 [petitioners] volunteered the information on direct
5 examination in an effort to falsely buttress their claims
6 through testimony.”).
7 While the agency also ruled that Zheng failed to submit
8 reliable documentary evidence to rehabilitate her credibility
9 and a failure to corroborate may bear on credibility “because
10 the absence of corroboration in general makes an applicant
11 unable to rehabilitate testimony that has already been called
12 into question,” Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
13 Cir. 2007), the IJ tied the lack of reliable documentary
14 evidence to the omissions. Given the errors, the absence of
15 corroboration is not a basis for an adverse credibility
16 determination. See Chuilu Liu v. Holder,
575 F.3d 193, 198
17 n.5 (2d Cir. 2009) (“[W]hile a failure to corroborate can
18 suffice, without more, to support a finding that an alien has
19 not met his burden of proof, a failure to corroborate cannot,
20 without more, support an adverse credibility
21 determination.”).
6
1 Because credibility is a threshold determination and a
2 credible claim of past persecution triggers a presumption of
3 future persecution, we conclude that remand is required and
4 do not reach the agency’s alternative finding regarding
5 Zheng’s practice of Christianity in the United States. See
6 8 C.F.R. § 1208.13(b)(1); INS v. Bagamasbad, 429 U.S. 24, 25
7 (1976) (“As a general rule courts and agencies are not
8 required to make findings on issues the decision of which is
9 unnecessary to the results they reach.”).
10 For the foregoing reasons, the petition for review is
11 GRANTED, the BIA’s decision is VACATED, and the case is
12 REMANDED for further proceedings consistent with this
13 order. All pending motions and applications are DENIED and
14 stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
7
