16-2262-ag, 16-2493-ag Gao v. Sessions, Shao v. Sessions
16‐2262‐ag, 16‐2493‐ag Gao v. Sessions, Shao v. Sessions
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2017
(Argued: December 11, 2017 Decided: May 25, 2018)
Docket Nos. 16‐2262‐ag, 16‐2493‐ag
HONG FEI GAO, AKA Xue Liang Zhang,
Petitioner,
v.
JEFFERSON B. SESSIONS III, United States Attorney General,
Respondent.*
HAO SHAO,
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson B. Sessions III is substituted for former Attorney General Loretta E. Lynch as respondent. ON PETITIONS FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
Before: WINTER and CHIN, Circuit Judges, and KORMAN, Judge.*
Petitions for review heard in tandem from decisions of the Board of
Immigration Appeals affirming the decisions of Immigration Judges denying
petitioners asylum and related relief on adverse credibility grounds. During
removal proceedings, petitioners testified to certain details about their
experiences that they had not included in their initial applications and
supporting documents. The Immigration Judges relied substantially on these
omissions in finding petitioners not credible.
PETITIONS GRANTED.
MONA LIZA FABULAR LAO, New York, New York, for Petitioner Gao.
JOSHUA E. BARDAVID, Law Office of Joshua E. Bardavid, New York, New York, for Petitioner Shao.
BRETT F. KINNEY and JESSE LLOYD BUSEN, Trial Attorneys, Jeffery R. Leist, Senior Litigation
* Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation. ‐ 2 ‐
Counsel, Holly M. Smith, Senior Litigation Counsel, Laura M. Cover, Law Clerk, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
CHIN, Circuit Judge:
These petitions for review heard in tandem challenge two decisions
of the Board of Immigration Appeals (the ʺBIAʺ), affirming decisions by two
Immigration Judges (ʺIJsʺ), denying asylum, withholding of removal, and
protection under the Convention Against Torture (ʺCATʺ) to two petitioners
seeking relief from religious persecution in China on adverse credibility grounds.
During removal proceedings, petitioners testified regarding the medical
attention they received for injuries they sustained from police beatings. The IJs
and the BIA relied substantially on the omission of that information from
petitionersʹ initial applications and supporting documents to determine that
petitioners lacked credibility.
On appeal, petitioners principally challenge the agencyʹs adverse
credibility determinations. In light of the totality of the circumstances and in the
context of the record as a whole, in each case we conclude that the IJ and BIA
erred in substantially relying on certain omissions in the record. Accordingly,
‐ 3 ‐
we grant the petitions, vacate the decisions of the BIA, and remand the cases to
the BIA for further proceedings consistent with this opinion.
BACKGROUND
We summarize the facts and procedural history of each case
separately, as follows:
I. Hong Fei Gao
Around April 2010, Gao, a native and citizen of China, entered the
United States without inspection. In September 2010, Gao applied for asylum,
withholding of removal, and protection under the CAT.
In his application, which included a short personal statement in
Chinese, Gao explained that in February 2009, influenced by his mother, he
began practicing Christianity in China. In November 2009, while he was praying
at a friendʹs house with other church members, the police broke into the house
and arrested Gao and his friends. Gao was brought to the police station and was
detained for ten days, during which he was repeatedly interrogated and beaten.
His family spent money and relied on connections to secure Gaoʹs release, and
the police required Gao to sign a letter promising not to attend church activities
anymore. After his release and before he recovered from his detention, Gao was
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fired from his restaurant job. He left China in March 2010 and continued to
practice Christianity in the United States. The statement did not provide any
description of any medical treatment.
In December 2010, Gao was served with a notice to appear in
removal proceedings. Through counsel, Gao conceded removability.
On September 12, 2014, following a hearing on September 27, 2012,
the IJ (Loprest, IJ) issued written orders denying Gaoʹs application for asylum,
withholding of removal, and protection under the CAT, and ordered Gao
removed to China. The IJ denied relief principally on adverse credibility
grounds.1 The IJ cited the following ʺevidentiary shortcomings that might not
undermine [Gaoʹs] case individually, but when considered cumulatively,ʺ led the
IJ to conclude that Gao lacked credibility, Gao Cert. Admin. R. 64:
Gao testified that he was interrogated by police four times and
was beaten during those interrogations, but his application omitted the number
of interrogations and the fact that his injuries required medical attention.2
1 The IJ also denied Gaoʹs asylum application on the ground that it was not timely. Because the BIA declined to address that ground, the timeliness of Gaoʹs application is not before us on appeal. 2 In fact, the application stated that ʺ[the police] interrogated me several times.ʺ Gao Cert. Admin. R. 302. ‐ 5 ‐
Gao testified that he was beaten and visited a clinic, but Gaoʹs
motherʹs letter did not mention that Gao was physically injured or that she and
Gaoʹs father took him to a clinic. Instead, her letter stated that she was ʺafraid
that [he] would be beaten by the police.ʺ Id. at 251.
Gao could not explain why his Chinese birth certificate and a
letter from his underground church used identical photographs.
Gao could not explain how he traveled under an electronic
airline ticket in his real name while simultaneously using a fraudulent passport.
Gao lacked candor and responsiveness, as he responded to
questions vaguely, asked for many questions to be repeated, and paused for a
long time before answering.
Gao failed to explain the inconsistencies and omissions to the IJʹs
satisfaction. The IJ was not persuaded by Gaoʹs explanation that he did not
know why his mother failed to mention the clinic visit in her letter. The IJ noted
that he reached the adverse credibility determination ʺwith some reluctanceʺ as
ʺthe documentary record appears to corroborate certain aspects of Gaoʹs claim,ʺ
citing letters, photographs, and statements relating to Gaoʹs mistreatment in
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China and his practice of Christianity in the United States, as well as U.S.
Department of State reports on religious persecution in China. Id. at 64.
On June 6, 2016, the BIA affirmed the IJʹs decision and dismissed
Gaoʹs appeal, finding no clear error in the IJʹs determination that Gao lacked
credibility. In re Hong Fei Gao, No. A200 922 341 (B.I.A. June 6, 2016), aff’g No.
A200 922 341 (Immig. Ct. N.Y. City Sep. 12, 2014). Although it noted that some
of the IJʹs findings did not support an adverse credibility determination, citing
one example of the discrepancy relating to the number of interrogations, the BIA
upheld the adverse credibility determination based on two omissions: (1) the
omission in Gaoʹs motherʹs letter of the facts that he was physically injured and
that his parents took him to a clinic, and (2) the omission in Gaoʹs asylum
application of the fact that he required medical treatment and the extent of his
mistreatment. After considering Gaoʹs proffered explanations ‐‐ he did not know
why his mother failed to mention his medical treatment, he did not request that
her letter include all details about what happened after his release, and he could
not produce a receipt because the clinic did not give him one ‐‐ the BIA found no
error in the IJʹs conclusion that Gao did not reasonably explain the omissions.
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On appeal, Gao challenges the adverse credibility determination,
arguing that his testimony was not inconsistent with his asylum application or
his motherʹs letter. He contends that the omissions were minor, collateral, and
insufficient to support an adverse credibility determination.
II. Hao Shao
Around September 2010, Shao, a native and citizen of China, entered
the United States without inspection. In May 2011, Shao applied for asylum,
In his updated application, Shao explained that he began practicing
Christianity in January 2003 through a neighborʹs influence and he was baptized
in October 2005. One night in April 2010, while he was gathered with other
Christians at someone elseʹs house, the police broke into the house, confiscated
their religious texts, and arrested Shao and others. Shao was brought to the
police station, interrogated, and severely beaten. He was detained for eleven
days and interrogated two more times, but as he testified during immigration
proceedings, he was not physically injured the other two times. Shaoʹs
application further explained that his family spent money to secure his release,
and the police required Shao to report to the station twice a month and sign a
‐ 8 ‐
letter promising not to participate in the underground church anymore. Shao
was later dismissed by his employer and was regularly monitored by police. He
left China in August 2010 and continued to practice Christianity in the United
States. Shaoʹs application did not provide any description of his medical
treatment, other than to say that ʺ[a]fter I returned home, my mother salved my
wounds with tear[s].ʺ Shao Cert. Admin. R. 423.
In July 2011, Shao was served with a notice to appear in removal
proceedings. Through counsel, Shao conceded removability.
On June 24, 2015, following a hearing, the IJ (Cheng, IJ) denied by
oral decision and written order Shaoʹs application for asylum, withholding of
removal, and protection under the CAT, and ordered Shao removed to China.
The IJ denied relief principally on adverse credibility grounds. The IJ noted that
the following ʺserious concerns about [Shaoʹs] credibilityʺ warranted an adverse
credibility determination, Shao Cert. Admin. R. 74:
Shao lacked responsiveness and his demeanor ʺchanged
dramaticallyʺ when discussing how many times he reported to the police. Id. at
74.
‐ 9 ‐
Shao testified that he sustained injuries from the police
beating, his parents took him to a local village clinic for treatment, his mother
helped him apply ʺmedical liquidʺ to his wounds, he went to the clinic for a
follow‐up visit, and it took one month for him to recover, but he omitted these
facts from his application.
Shaoʹs fatherʹs letter did not mention that Shaoʹs parents took
him to a clinic or that his mother helped apply ʺmedical liquidʺ to his wounds.
Shao vacillated regarding how many times he reported to the
police ‐‐ he answered ʺfive times, wait, 15 times, seven times,ʺ and after an
approximately ten‐second pause, finally ʺseven times.ʺ Id. at 142.
Shao offered two different dates ‐‐ September 1 and
September 4, 2010 ‐‐ for when he contacted his cousin in the United States.
The letter Shao submitted from his churchʹs pastor did not
mention his arrest, even though the pastor was aware of it.
After giving Shao ʺample opportunity to reconcile these
inconsistencies,ʺ the IJ concluded that Shaoʹs explanations were ʺneither
plausible nor reasonable.ʺ Id. at 78. The IJ was not persuaded by Shaoʹs
explanations that he did not mention the medical treatment because it was a
‐ 10 ‐
minor detail akin to picking up medicine at a drug store; he had difficulty stating
the number of times he reported to the police, because he did not keep exact
count; and he only submitted the church letter as proof of membership. Finally,
relying on her credibility determination, the IJ determined that Shao failed to
establish past persecution or a well‐founded fear of persecution.
On June 27, 2016, the BIA affirmed the IJʹs decision denying relief
and dismissed Shaoʹs appeal, finding no clear error in the IJʹs determination that
Shao lacked credibility. In re Hao Shao, No. A200 168 340 (B.I.A. June 27, 2016),
affʹg No. No. A200 168 340 (Immig. Ct. N.Y. City June 24, 2015). The BIA upheld
the adverse credibility determination based on three omissions and
inconsistencies: (1) omissions regarding Shaoʹs medical treatment from his
asylum application and his fatherʹs letter; (2) the inconsistent testimony Shao
offered on the number of times he reported to the police; and (3) the omission of
Shaoʹs arrest in the pastorʹs letter. The BIA was not persuaded by Shaoʹs
arguments that he did not believe the clinic treatment was important enough to
include in his application; he did not know why his father omitted mention of his
medical treatment and his father mainly discussed his arrest, where the letter
was ʺotherwise detailed,ʺ Shao Cert. Admin. R. 4; he did not keep exact count of
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the number of times he reported to the police; and the pastorʹs letter was only a
certificate intended to confirm his membership. The BIA also affirmed the IJʹs
determinations that Shao failed to establish past persecution or a well‐founded
fear of persecution.
On appeal, Shao challenges the adverse credibility determination,
contending that the agency erred in relying on minor inconsistencies when the
record as a whole corroborates his claim. He also contends that the IJ failed to
conduct the required individualized analysis when it concluded that Shao failed
to establish a well‐founded fear of persecution.
DISCUSSION
I. Applicable Law
A. Statutory Framework
ʺAsylum is a discretionary form of relief that hinges on persecution
in the applicantʹs country of nationality.ʺ Delgado v. Mukasey, 508 F.3d 702, 705
(2d Cir. 2007). To be eligible for asylum, a petitioner must establish that he or
she is a ʺrefugee,ʺ 8 U.S.C. § 1158(b)(1)(B)(i), that is, a person who is unable or
unwilling to return to his or her country of nationality ʺbecause of persecution or
a well‐founded fear of persecution on account of race, religion, nationality,
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membership in a particular social group, or political opinion,ʺ 8 U.S.C.
§ 1101(a)(42)(A). Asylum based on past persecution is "reserved for persecuted
aliens whose persecution was particularly severe or who may suffer ʹother
serious harmʹ if removed.ʺ Kone v. Holder, 596 F.3d 141, 146 (2d Cir. 2010)
(quoting 8 C.F.R. § 1208.13(b)(1)(iii)). Asylum based on a well‐founded fear of
persecution ʺrequires a subjective fear that is objectively reasonable.ʺ Huo Qiang
Chen v. Holder, 773 F.3d 396, 404 (2d Cir. 2014).
Withholding of removal is a mandatory form of relief that requires a
petitioner to demonstrate ʺa clear probability of future persecution on account of
a protected characteristic.ʺ Kone, 596 F.3d at 147; see 8 U.S.C. § 1231(b)(3)(A)
(alien may not be removed if ʺthe alienʹs life or freedom would be threatened in
that country because of the alienʹs race, religion, nationality, membership in a
particular social group, or political opinionʺ). A petitionerʹs burden of proof for
withholding of removal is higher than his or her burden of proof for asylum.
Vanegas‐Ramirez v. Holder, 768 F.3d 226, 237 (2d Cir. 2014).
Protection under the CAT is also a mandatory form of relief and
requires an applicant to ʺestablish that it is more likely than not that he or she
would be tortured if removed to the proposed country of removal.ʺ Kone, 596
‐ 13 ‐
F.3d at 147 (quoting 8 C.F.R. § 1208.16(c)(2)). ʺUnlike asylum and withholding of
removal, ʹCAT relief does not require a nexus to a protected ground.ʹʺ Id.
(quoting Delgado, 508 F.3d at 708).
Where the same factual predicate underlies a petitionerʹs claims for
asylum, withholding of removal, and protection under the CAT, an adverse
credibility determination forecloses all three forms of relief. See Paul v. Gonzales,
444 F.3d 148, 156‐57 (2d Cir. 2006).
B. Standards of Review
ʺWhen the BIA agrees with an IJʹs adverse credibility determination
and adopts particular parts of the IJʹs reasoning, we review the decisions of both
the BIA and the IJ.ʺ Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir. 2008) (per
curiam). Our review of the IJʹs decision ʺinclud[es] the portions not explicitly
discussed by the BIA,ʺ Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per
curiam), but not those grounds explicitly rejected by the BIA, see Xue Hong Yang
v. U.S. Depʹt of Justice, 426 F.3d 520, 522 (2d Cir. 2005) (ʺ[W]e review the judgment
of the IJ as modified by the BIAʹs decision ‐‐ that is, minus the single argument
for denying relief that was rejected by the BIA.ʺ).
‐ 14 ‐
We review de novo questions of law and the application of law to
fact. Kone, 596 F.3d at 146. We review the agencyʹs factual findings, including
adverse credibility findings, under the substantial evidence standard, ʺwhich
requires that they be supported by ʹreasonable, substantial and probative
evidence in the record when considered as a whole.ʹʺ Id. (quoting Iouri v.
Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007)). We treat factual findings as ʺconclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.ʺ 8 U.S.C. § 1252(b)(4)(B); see Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005) (ʺA petitioner must do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must demonstrate that a reasonable
fact‐finder would be compelled to credit his testimony.ʺ (internal quotation marks
and citation omitted)).
ʺWe defer . . . to an IJʹs credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable fact‐finder could make
such an adverse credibility ruling.ʺ Xiu Xia Lin, 534 F.3d at 167. Although we
afford particular deference to the IJʹs adverse credibility determination, ʺthe fact
that an IJ ʹhas relied primarily on credibility grounds in dismissing an asylum
application cannot insulate the decision from review.ʹʺ Xiao Ji Chen v. U.S. Depʹt
‐ 15 ‐
of Justice, 471 F.3d 315, 335 (2d Cir. 2006) (quoting Ramsameachire v. Ashcroft, 357
F.3d 169, 178 (2d Cir. 2004)). We must assess whether the agency has provided
ʺspecific, cogent reasons for the adverse credibility finding and whether those
reasons bear a legitimate nexus to the finding.ʺ Xiu Xia Lin, 534 F.3d at 166
(quoting Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir. 2004)).
Where an IJ relies on erroneous bases to reach an adverse credibility
determination, and ʺwe cannot confidently predict that the IJ would reach the
same conclusion in the absence of these deficiencies, the IJʹs adverse credibility
determination cannot stand.ʺ Pavlova v. INS, 441 F.3d 82, 88 (2d Cir. 2006); see
also Kone, 596 F.3d at 151 (ʺBecause we cannot confidently predict that absent
these errors the IJ would have adhered to its [adverse credibility]
determination, a remand is warranted.ʺ (footnote omitted)).
C. Omissions and Inconsistencies
For cases filed after May 11, 2005, the effective date of the REAL ID
Act, Pub L. No. 109‐13, 119 Stat. 231 (2005), ʺan IJ may rely on any inconsistency
or omission in making an adverse credibility determination as long as the
ʹtotality of the circumstancesʹ establishes that an asylum applicant is not
credible,ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The
‐ 16 ‐
agency may base a credibility finding on an asylum applicantʹs ʺdemeanor,
candor, or responsivenessʺ; the ʺinherent plausibilityʺ of his account; the
consistency among his written statements, oral statements, and other record
evidence; and ʺany inaccuracies or falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicantʹs claim, or any other relevant factor.ʺ 8 U.S.C. § 1158(b)(1)(B)(iii). Even
where the agency ʺrelies on discrepancies or lacunae that, if taken separately,
concern matters collateral or ancillary to the claim, the cumulative effect may
nevertheless be deemed consequential.ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting Tu
Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)). To resolve the instant appeals,
we first clarify the following principles that govern credibility determinations
based on omissions following the REAL ID Act.
First, although the REAL ID Act authorizes an IJ to rely on ʺany
inconsistency or omission in making an adverse credibility determination,ʺ even
one ʺcollateral or ancillaryʺ to an applicantʹs claims, id. at 167, the Act does not
give an IJ free rein. The REAL ID Act does not erase our obligation to assess
whether the agency has provided ʺspecific, cogent reasons for the adverse
credibility finding and whether those reasons bear a legitimate nexus to the
‐ 17 ‐
finding.ʺ Id. at 166 (quoting Zhou Yun Zhang, 386 F.3d at 74); accord Shrestha v.
Holder, 590 F.3d 1034, 1042 (9th Cir. 2010) (ʺThe REAL ID Act did not strip us of
our ability to rely on the institutional tools that we have developed, such as the
requirement that an agency provide specific and cogent reasons supporting an
adverse credibility determination, to aid our review.ʺ). Thus, although IJs may
rely on non‐material omissions and inconsistencies, not all omissions and
inconsistencies will deserve the same weight. A trivial inconsistency or omission
that has no tendency to suggest a petitioner fabricated his or her claim will not
support an adverse credibility determination. See Latifi v. Gonzales, 430 F.3d 103,
105 (2d Cir. 2005) (per curiam) (remanding where we found ʺany potential
discrepancies that might exist to be far from ʹsignificant and numerous,ʹ but
rather insignificant and trivialʺ); accord Shrestha, 590 F.3d at 1044 (noting that
ʺtrivial inconsistencies that under the total circumstances have no bearing on a
petitionerʹs veracity should not form the basis of an adverse credibility
determinationʺ); Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (faulting IJ for
ʺfail[ing] to distinguish between material lies, on the one hand, and innocent
‐ 18 ‐
mistakes, trivial inconsistencies, and harmless exaggerations, on the other
handʺ).3
Second, although ʺ[a] lacuna in an applicantʹs testimony or omission
in a document submitted to corroborate the applicantʹs testimony . . . can serve as
a proper basis for an adverse credibility determination,ʺ Xiu Xia Lin, 534 F.3d at
166 n.3, we also recognize that ʺasylum applicants are not required to list every
incident of persecution on their I–589 statement,ʺ Lianping Li v. Lynch, 839 F.3d
144, 150 (2d Cir. 2016) (per curiam) (quoting Pavlova, 441 F.3d at 90); see also
Secaida‐Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (noting that an applicantʹs
ʺfailure to list in his or her initial application facts that emerge later in testimony
will not automatically provide a sufficient basis for an adverse credibility
findingʺ), superseded by statute on other grounds as recognized in Xiu Xia Lin, 534
F.3d at 167; accord Pop v. INS, 270 F.3d 527, 531‐32 (7th Cir. 2001) (ʺWe hesitate to
find that one seeking asylum must state in his or her application every incident
of persecution lest the applicant have his or her credibility questioned if the
3 An example of a trivial inconsistency that is entitled to little if any weight is the difference between Gaoʹs hearing testimony that he was interrogated by the police ʺfour timesʺ and his application statement that he was interrogated ʺseveral times.ʺ The BIA correctly held that this ʺdiscrepancyʺ did not support an adverse credibility determination. Likewise, the difference between September 1, 2010 and September 4, 2010 as the date when Shao contacted his cousin is a trivial discrepancy. ‐ 19 ‐
incident is later elicited in direct testimony.ʺ); Abulashvili v. Attorney Gen. of U.S.,
663 F.3d 197, 206 (3d Cir. 2011). Because of this tension, although we have noted
in dictum that an inconsistency and an omission are ʺfunctionally equivalentʺ for
adverse credibility purposes, Xiu Xia Lin, 534 F.3d at 166 n.3, in general
ʺomissions are less probative of credibility than inconsistencies created by direct
contradictions in evidence and testimony,ʺ Lai v. Holder, 773 F.3d 966, 971 (9th
Cir. 2014). Cf. Lianping Li, 839 F.3d at 150 (upholding adverse credibility
determination where petitionerʹs ʺasylum application did not simply omit
incidents of persecution. . . . [but rather] described the same incidents of
persecution differentlyʺ).
Although the federal evidentiary rules do not apply in immigration
proceedings, Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam), it is
nonetheless instructive to analogize the use of omissions in adverse credibility
determinations to the use of a witnessʹs prior silence for impeachment. In the
latter context, we have indicated that ʺ[w]here the belatedly recollected facts
merely augment that which was originally described, the prior silence is often
simply too ambiguous to have any probative force, and accordingly is not
sufficiently inconsistent to be admitted for purposes of impeachment.ʺ United
‐ 20 ‐
States v. Leonardi, 623 F.2d 746, 756 (2d Cir. 1980) (citation omitted). In addition,
the probative value of a witnessʹs prior silence on particular facts depends on
whether those facts are ones the witness would reasonably have been expected to
disclose. See Jenkins v. Anderson, 447 U.S. 231, 239 (1980) (ʺCommon law
traditionally has allowed witnesses to be impeached by their previous failure to
state a fact in circumstances in which that fact naturally would have been asserted.ʺ
(emphasis added)). In the immigration context, in assessing the probative value
of the omission of certain facts, an IJ should consider whether those facts are ones
that a credible petitioner would reasonably have been expected to disclose under
the relevant circumstances.
Finally, the REAL ID Act requires IJs to evaluate each inconsistency
or omission in light of the ʺtotality of the circumstances, and all relevant factors,ʺ
8 U.S.C. § 1158(b)(1)(B)(iii). That requirement is consistent with our well‐
established rule that review of an agencyʹs adverse credibility determination ʺis
conducted on the record as a whole.ʺ Tu Lin, 446 F.3d at 402; see also Xiu Xia Lin,
534 F.3d at 167 (an applicantʹs testimony must be considered ʺin light of . . . the
manner in which it hangs together with other evidenceʺ (citation omitted)); accord
Shrestha, 590 F.3d at 1040 (ʺ[T]he totality of the circumstances approach also
‐ 21 ‐
imposes the requirement that an IJ not cherry pick solely facts favoring an
adverse credibility determination while ignoring facts that undermine that
result.ʺ). Thus, ʺan applicantʹs testimonial discrepancies ‐‐ and, at times, even
outright lies ‐‐ must be weighed in light of their significance to the total context
of his or her claim of persecution.ʺ Zhong v. U.S. Depʹt of Justice, 480 F.3d 104, 127
(2d Cir. 2007). An IJ must also ʺʹengage or evaluateʹ an asylum applicantʹs
explanations for apparent inconsistencies in the record.ʺ Diallo v. Gonzales, 445
F.3d 624, 629 (2d Cir. 2006) (quoting Latifi, 430 F.3d at 105); see also Cao He Lin v.
U.S. Depʹt of Justice, 428 F.3d 391, 403 (2d Cir. 2005) (ʺAbsent a reasoned
evaluation of [petitionerʹs] explanations, the IJʹs conclusion that his story is
implausible was based on flawed reasoning and, therefore, cannot constitute
substantial evidence supporting her conclusion.ʺ).
II. Application
In light of the foregoing principles, we conclude that in both cases,
the IJs and the BIA erred by substantially relying on certain inconsistencies and
omissions that had no tendency to show that petitioners fabricated their claims
when considered in light of the totality of the circumstances and in the context of
the record as a whole. Because we cannot confidently predict that the IJs would
‐ 22 ‐
have adhered to their adverse credibility determinations absent these erroneous
bases, we remand for further evaluation.
A. Omissions Regarding Medical Treatment
In both cases, the agency relied on the omission from petitionersʹ
initial applications of discussion of their medical treatment for their injuries after
their release from custody. Although the fact that petitioners visited clinics for
medical treatment may be probative of the degree of harm they suffered, the
omissions of these details from petitionersʹ initial applications did not warrant
the heavy weight afforded to them by the IJs and the BIA.
First, Gaoʹs and Shaoʹs testimony regarding medical treatment was
not inconsistent with their initial accounts. The information was supplementary,
not contradictory: that their beatings warranted medical attention reinforces
their claims of persecution. See Lai, 773 F.3d at 974 (ʺThis is not a case where
contradictory or even impeaching information came out; rather, it was
information consistent with [the applicantʹs] own claimed experiences that
would have helped his claim had he brought it out himself.ʺ). Here, the IJs erred
to the extent that they characterized these omissions as inconsistencies. See Shao
Cert. Admin. R. 75 (characterizing Shaoʹs failure to mention that he visited a
‐ 23 ‐
clinic as a ʺtroubling significant inconsistencyʺ); Gao Cert. Admin. R. 65
(characterizing Gaoʹs motherʹs letterʹs failure to mention that she took Gao to a
clinic as an ʺinconsistenc[y]ʺ).
Second, although we would not necessarily characterize these
omissions as trivial or minor, we are not convinced that the omissions were as
serious as the IJs suggested. We have recognized that ʺasylum applicants are not
required to list every incident of persecution on their I–589 statement.ʺ Lianping
Li, 839 F.3d at 150. By logical extension, nor are asylum applicants required to
list every incident that occurs in the aftermath of the alleged persecution. Neither
application attempted to describe the medical attention petitioners received, and
in describing why they believed they were entitled to asylum, there is no reason
petitioners would have described receiving medicine from a clinic.
In Shaoʹs case, the IJ concluded that during testimony Shao
ʺexplained to this Court in detail that a doctor saw him, examined him, and
provided medical treatment and even had a follow‐up visit or appointment,ʺ but
the information was omitted from Shaoʹs application and Shaoʹs fatherʹs letter.
Shao Cert. Admin. R. 76. The IJ characterized this discrepancy as a ʺtroubling
significant inconsistencyʺ and ʺsignificant omissionʺ because it ʺimplicates a
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degree of alleged harm that he suffered which is a central element of his claim.ʺ
Id. at 75‐76. Our review of the record suggests that the discrepancy was not so
stark. Shao disclosed in his initial application that his mother helped salve his
wounds. During testimony, Shao twice testified, in response to the IJʹs questions,
that he visited the clinic simply to procure the medicine his mother applied. Id.
at 146 (ʺQ. And what did this private small clinic do for you? A. He provide me
with those medical liquid and my mother helped me to put on.ʺ); id. at 147 (ʺQ.
Sir, can you explain to me why both your statements . . . donʹt mention you going
to see this doctor in your village for treatment? A. At the time [I] got released,
my parents and I just went to this small clinic and took, and grabbed some
medicines and then went back.ʺ). Although he did affirmatively respond to the
IJʹs question about whether he sought ʺfollow‐up treatment,ʺ nothing in Shaoʹs
short response ‐‐ that the doctor ʺjust check[ed] on me, what happened to those
areas,ʺ id. at 146 ‐‐ indicates that the treatment was particularly significant. A
fairer reading of Shaoʹs testimony is that, in response to questioning, he provided
additional detail regarding how his family procured the medicine his mother
used to treat his injuries.
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Similarly, in Gaoʹs case, the IJ faulted Gao because he testified that
his parents took him to a clinic immediately after his release, but neither his
application nor his motherʹs letter disclosed that his injuries required medical
attention. Gao Cert. Admin. R. 64‐65. Again, our review of the record suggests
that the discrepancy was not so serious. On cross‐examination, Gao described
his clinic visit as follows: ʺThey just took a look at me, gave me some liquid
medication, gave me some medication and that was that.ʺ Id. at 176. Nothing in
Gaoʹs response and the short colloquy regarding his clinic visit indicates that the
treatment was particularly significant.
We also note that petitionersʹ testimony regarding their clinic visits
was relatively short ‐‐ accounting for less than three pages of transcript in Shaoʹs
case, and about one page in Gaoʹs case ‐‐ and was elicited through cross‐
examination (in Gaoʹs case) and IJ questioning (in Shaoʹs case). It was not as
though Gao or Shao volunteered the information on direct examination in an
effort to falsely buttress their claims through testimony. Cf. Zamanov v. Holder,
649 F.3d 969, 974 (9th Cir. 2011) (upholding adverse credibility determination
where applicantʹs ʺsupplemental declaration and his testimony before the IJ tell a
much different ‐‐ and more compelling ‐‐ story of persecution than his initial
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application and testimony before the asylum officerʺ). We hesitate to suggest
that petitionersʹ initial submissions must detail not only the persecution they
faced, but also the aftermath of the alleged persecution, lest they be found not
credible.
Third, in both cases, when considering the ʺrecord as a whole,ʺ Tu
Lin, 446 F.3d at 402, there was corroborating evidence of petitionersʹ claims that
they were severely beaten by police. In Shaoʹs case, Shaoʹs sister, brother, and
father all submitted letters substantiating his claim that he was beaten in police
detention. In Gaoʹs case, Gaoʹs friend ‐‐ the same friend in whose house Gao was
praying when the police arrived ‐‐ submitted a letter corroborating Gaoʹs account
of what happened in the house and at the police station.
Finally, as far as the omissions in Gaoʹs motherʹs letter and Shaoʹs
fatherʹs letter regarding the clinic visits, in both cases petitioners were asked to
speculate about the state of mind of the lettersʹ authors. Although an omission
by a third party may form a basis for an adverse credibility determination, see
Xiu Xia Lin, 534 F.3d at 167, under these circumstances ‐‐ where a third partyʹs
omission creates no inconsistency with an applicantʹs own statements ‐‐ an
applicantʹs failure to explain third‐party omissions is less probative of credibility
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than an applicantʹs failure to explain his or her own omissions. Cf. id. (relying on
omission in third‐party friendʹs letter where ʺthe failure of [applicantʹs] friend to
mention that the friend was in hiding from Chinese authorities contradicted
[applicantʹs] testimony that her friend feared further persecutionʺ).
We therefore conclude that, under the totality of circumstances, the
omissions regarding Gaoʹs and Shaoʹs clinic visits warranted little, if any,
weight.4
B. Remaining Issues in Shaoʹs Case
In Shaoʹs case, the IJ also relied on the omission of the fact that Shao
was arrested in a letter from Shaoʹs pastor, who was aware of Shaoʹs arrest. The
IJ did not accept Shaoʹs explanation that he submitted the letter only to prove his
church attendance and baptism. Although the BIA concluded that the omission
ʺwould not be sufficient by itself to support the adverse credibility
determination, . . . it [could] be citedʺ in light of other discrepancies. Shao Cert.
Admin. R. 5.
4 We do not suggest that omissions regarding medical treatment can never be the basis of an adverse credibility determination. We emphasize simply that such omissions must be evaluated on a case‐by‐case basis and weighed in light of the totality of the circumstances. ‐ 28 ‐
We are not persuaded that reliance on this omission was
appropriate. Although the document at issue is handwritten, it is plainly titled a
ʺCertificate,ʺ and includes no details other than Shaoʹs date of his birth, the date
he ʺaccepted Jesus Christ as Savior,ʺ and the date he was baptized. Id. at 230.
The absence of Shaoʹs arrest in this document is unremarkable given the purpose
for which Shao offered the document, and it is not apparent to us why the IJ
would expect a discussion of Shaoʹs arrest in the certificate. Moreover, although
an IJ is not compelled to accept a petitionerʹs explanation, an IJ is required to
ʺengage or evaluateʺ the explanation. Diallo, 445 F.3d at 629 (quoting Latifi, 430
F.3d at 105). The IJʹs summary conclusion that ʺthe Court does not accept
[Shaoʹs] explanationʺ did not meet this requirement. Shao Cert. Admin. R. 77.
We recognize that other aspects of Shaoʹs testimony ‐‐ such as his
vacillating answers regarding how many times he reported to the police and his
demeanor during that exchange ‐‐ support the IJʹs adverse credibility finding.
But because we cannot confidently predict that the IJ would have adhered to her
determination absent the other errors we have identified, remand is warranted.
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C. Remaining Issues in Gaoʹs Case
In Gaoʹs case, the IJ also relied on other inconsistencies and
omissions that do not support the adverse credibility determination. The BIA
correctly rejected the IJʹs improper reliance on the purported discrepancy in
Gaoʹs statements regarding the number of times he was interrogated. We also
note that Gaoʹs failure to mention in his application that his interrogation room
had a ʺsmall window,ʺ a fact he later recounted in testimony, was an utterly
trivial omission that had no bearing on Gaoʹs credibility. See Latifi, 430 F.3d at
105; accord Shrestha, 590 F.3d at 1044; Kadia, 501 F.3d at 821.
We recognize that other discrepancies support the IJʹs adverse
credibility finding. For example, Gaoʹs mother mentions in her letter that, upon
hearing that Gao was arrested, she was ʺafraid that [her] son would be beaten by
the police.ʺ Gao Cert. Admin. R. 251. She does not, however, mention that he
was in fact beaten and injured, although she discusses other post‐arrest events.
But because we cannot confidently predict that the IJ would have adhered to his
determination absent the errors we have identified ‐‐ especially as the IJ
commented that he reached the adverse credibility determination ʺwith some
reluctance,ʺ id. at 64 ‐‐ remand is warranted.
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* * *
Omissions need not go to the heart of a claim to be considered in
adverse credibility determinations, but they must still be weighed in light of the
totality of the circumstances and in the context of the record as a whole. In
deciding on the appropriate weight to afford an omission, IJs must distinguish
between (1) omissions that arise merely because an applicantʹs oral testimony is
more detailed than his or her written application, and (2) omissions that tend to
show that an applicant has fabricated his or her claim. In light of the foregoing,
we conclude that a remand is appropriate in both cases to allow the BIA ‐‐ ʺor the
IJ, if that is the most appropriate decision‐maker in the first instance,ʺ Mahmood
v. Holder, 570 F.3d 466, 471 (2d Cir. 2009) ‐‐ to afford the omissions discussed
above their appropriate weight when evaluating petitionersʹ credibility.
CONCLUSION
For the reasons set forth above, we GRANT the petitions, VACATE
the decisions of the BIA, and REMAND the cases to the BIA for further
proceedings consistent with this opinion. As we have completed our review,
Gaoʹs pending motion for a stay of removal in this petition is DENIED as moot.
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