Wang v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: April 2, 2018
• Docket: 16-3009
• Status: Unpublished

Opinion

16-3009 Wang v. Sessions BIA Sichel, IJ A200 749 579 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 2nd day of April, two thousand eighteen.

PRESENT: Robert A. Katzmann, Chief Judge, Guido Calabresi, Denny Chin, Circuit Judges. _____________________________________

ZHIYONG WANG, Petitioner,

v. 16-3009 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Mouren Wu, Law Office of Mouren Wu, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Terri J. Scadron, Assistant Director; Wendy Benner-León, Trial 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 (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED.

Petitioner Zhiyong Wang, a native and citizen of the

People’s Republic of China, seeks review of an August 18,

2016, decision of the BIA affirming a May 7, 2015, decision

of an Immigration Judge (“IJ”) denying Wang’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Zhiyong Wang, No.

A 200 749 579 (B.I.A. Aug. 18, 2016), aff’g No. A 200 749 579

(Immig. Ct. N.Y. City May 7, 2015). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

We have reviewed the IJ’s decision as supplemented by

the BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

2005). The standards of review are well established. See 8

U.S.C. § 1252(b)(4); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

2 165 (2d Cir. 2008) (per curiam).

In making an adverse credibility determination, the

agency may rely on inconsistencies and omissions in an asylum

applicant’s statements and other record evidence; however,

the “totality of the circumstances” must support the

determination. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia

Lin, 534 F.3d at 163-64. The IJ here based its adverse

credibility determination on two omissions by Wang, one

involving whether police officers “beat up” or “pushed” his

mother, and another regarding whether the police summoned

Wang for questioning after his two arrests. App. 3. These two

omissions, however, are insufficient to establish an adverse

credibility determination under the totality of the

circumstances. Wang has submitted letters from his neighbor

in China stating that he “was aware of [Wang’s] two arrests

for practicing [Buddhism]” and that the police are continuing

to “question[] for information about him,” id. at 82, a letter

from his father stating that after Wang left China “the police

never gave up looking for him,” id. at 84, and a letter from

his cousin stating that Wang had been arrested twice in China

for practicing Buddhism and that police “are still seeking 3 his person,” id. at 86. The letters strongly support Wang’s

claims, and there is no evidence in the record that the

letters are false, fraudulent, or otherwise should not be

believed.

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.

As we have completed our review, the pending motion for a

stay of removal in this petition is DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court