Sun Ying Ye v. Gonzales

225 F. App'x 6
CourtCourt of Appeals for the Second Circuit
DecidedMarch 14, 2007
DocketNo. 05-2887-ag
StatusPublished
Cited by1 cases

This text of 225 F. App'x 6 (Sun Ying Ye v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sun Ying Ye v. Gonzales, 225 F. App'x 6 (2d Cir. 2007).

Opinion

SUMMARY ORDER

Sun Ying Ye, a native and citizen of the People’s Republic of China, seeks review of a March 6, 2003 order of the BIA affirming the July 18, 2000 decision of Immigration Judge (“IJ”) Sandy Horn, denying his applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re Sun Ying Ye, No. A76 505 628 (B.I.A. Mar. 6, 2003), aff'g No. A76 505 628 (Immig. Ct. N.Y. City Jul. 18, 2000). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Where, as here, the BIA summarily affirms the decision of the IJ without issuing [8]*8an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). This Court reviews the agency’s factual findings, including adverse credibility determinations, 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 Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). But see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 340 (2d Cir.2006) (agreeing with this principle, but avoiding remand, in spite of deficiencies in an adverse credibility determination, because it could be confidently predicted that the IJ would adhere to the decision were the case remanded).

An adverse credibility determination must be based on “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003); see, e.g., Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir.2005) (overturning adverse credibility determination because, among other errors, the IJ failed to identify specific inconsistencies on which determination was based).

As an initial matter, Ye’s withholding of removal and CAT claims are dismissed for lack of jurisdiction, because he failed to exhaust them before the BIA pursuant to 8 U.S.C. § 1252(d)(1). See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006).

As to Ye’s religious persecution claim, the IJ divided it into one imputed claim based on his brother’s persecution and one direct persecution claim. It is doubtful whether Ye intended to make an imputed claim in the first place. Rather, it seems that Ye raised his brother’s persecution merely to provide support for his own religious persecution claim. Ye did not directly allege that authorities targeted him because of his brother’s beliefs. None of Ye’s briefs alleged a claim of imputed persecution before the BIA or this Court. Consequently, we review only Ye’s direct religious persecution claim.

The IJ determined that Ye was not credible with regard to his direct claim of religious persecution. However, the IJ’s findings are based on flawed reasoning, and should not have formed the basis for his adverse credibility determination. The IJ improperly found that Ye’s testimony about when he was arrested was inconsistent and vague. Tool room the basis of an adverse credibility determination, an inconsistency must be “substantial” when measured against the record as a whole. See Secaida-Rosales, 331 F.3d at 308-09; Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006). If an inconsistency is not dramatic, the agency may not rest an adverse credibility finding on it without first giving the applicant a chance to reconcile the testimony. See Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.2006); Zhi Wei Pang v. BCIS, 448 F.3d 102, 109-10 (2d Cir.2006).

Here, on cross-examination, Ye testified that he was arrested in 1992. However, consistent with his asylum application, he had testified on direct examination that he was arrested in 1999. When given the opportunity to reconcile his testimony about his 1992 arrest, he answered that he meant that it was his brother who was arrested at that time.

[9]*9The IJ was not required to parse or refute on the record each of Ye’s explanations for testimonial inconsistencies, Xiao Ji Chen, 471 F.3d at 336 n. 17, but he was required to take into account significant factual assertions that Ye offered, and to provide a reasoned analysis of those assertions. Cao He Lin, 428 F.3d at 403. His failure to do so, and to consider Ye’s consistent testimony on direct examination, is significant, as he should have evaluated Ye’s inconsistency against the whole record. Secaida-Rosales, 331 F.3d at 308-09; Cao He Lin, 428 F.3d at 400. As a result, the IJ’s inconsistency finding was flawed. Pavlova, 441 F.3d at 90 (“... [WJhere it is not apparent on the face of the record that the IJ has considered the applicant’s responses to the IJ’s credibility concerns, we do require the IJ to say enough to allow us to understand, and to review, the reasons for rejecting the applicant’s testimony.”).

Furthermore, the IJ failed to specify what portions of Ye’s testimony lacked specificity or were inconsistent. Latifi, 430 F.3d at 105 (overturning adverse credibility determination because, among other errors, the IJ failed to identify specific inconsistencies on which determination was based). If the IJ found Ye’s testimony too vague, he should have “probe[d] for incidental details” to “draw out inconsistencies that would support a finding of lack of credibility.” Id. at 123; Jin Chen v. U.S. Dep’t of Justice,

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225 F. App'x 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sun-ying-ye-v-gonzales-ca2-2007.