Xing v. Whitaker

Opinion

17-1143 Xing v. Whitaker BIA

Hom, IJ

A205 083 157

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 11th day of January, two thousand nineteen. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 LI LONG XING, 13 Petitioner, 14 15 v. 17-1143 16 NAC 17 MATTHEW G. WHITAKER, ACTING 18 UNITED STATES ATTORNEY GENERAL, 19 Respondent. 20 _____________________________________ 21 22 FOR PETITIONER: Jan Potemkin, New York, NY. 23 24 FOR RESPONDENT: Chad A. Readler, Principal Deputy 25 Assistant Attorney General; Holly 26 M. Smith, Senior Litigation 27 Counsel; Nehal H. Kamani, Trial 28 Attorney, 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 Li Long Xing, a native and citizen of the 6 People’s Republic of China, seeks review of an April 5, 2017, 7 decision of the BIA affirming an October 27, 2015, decision 8 of an Immigration Judge (“IJ”) denying Xing’s application for 9 asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Li Long Xing, No. 11 A 205 083 157 (B.I.A. Apr. 5, 2017), aff’g No. A 205 083 157 12 (Immig. Ct. N.Y. City Oct. 27, 2015). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of 17 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 18 the agency’s legal conclusions de novo and its factual 19 findings under the substantial evidence standard. Y.C. v. 20 Holder, 741 F.3d 324, 332 (2d Cir. 2013); see also 8 U.S.C. 21 § 1252(a)(4)(B) (“[T]he administrative findings of fact are

3

1 conclusive unless any reasonable adjudicator would be 2 compelled to conclude to the contrary.”). 3 Xing had the burden of establishing a well-founded fear 4 of persecution on account of his practice of Christianity. 5 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i). To do this, he 6 was required to show that he subjectively fears persecution 7 and that his fear is objectively reasonable. Ramsameachire 8 v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). The objective 9 component can be satisfied either by establishing “a 10 reasonable possibility that he . . . would be singled out 11 individually for persecution” or “that there is a pattern or 12 practice . . . of persecution of a group of persons similarly 13 situated to the applicant on account of . . . religion.” 8 14 C.F.R. § 1208.13(b)(2)(iii); see Y.C., 741 F.3d at 332. 15 The agency concluded that Xing did not meet this burden 16 because (1) he did not adequately corroborate his testimony 17 regarding Chinese authorities’ efforts to arrest him for 18 attending an underground church, (2) he did not show that 19 Chinese authorities sought to arrest him based on his church 20 attendance in the United States, and (3) the country 21 conditions evidence did not establish a pattern or practice

4

1 of persecution of similarly situated Christians. As discussed 2 below, remand is warranted because the agency neither made an 3 explicit adverse credibility ruling nor identified what 4 additional corroboration was needed, the IJ made clear 5 factual errors and required corroboration of facts not 6 related to Xing’s claim, and the BIA failed to acknowledge 7 the IJ’s errors. 8 Under the REAL ID Act, the agency may rely on any 9 inconsistencies between an asylum applicant’s testimony and 10 other record evidence, including border interviews, to 11 conclude that the applicant is not a credible witness. 8 12 U.S.C. § 1158(b)(1)(B)(iii); see Hong Fei Gao v. Sessions, 13 891 F.3d at 67, 77 (2d Cir. 2018). In the credibility 14 context, the absence of reliable corroborating evidence may 15 further undermines an alien’s testimony that has already 16 been called into question. Hong Fei Gao, 891 F.3d at 78; 17 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)(per 18 curiam). The agency may also deny relief on corroboration 19 grounds even where an alien is credible, but in doing so, 20 “[a]n IJ should ’point to specific pieces of missing, 21 relevant documentation’ and ‘show that this documentation

5

1 was reasonably available.’” Chuilu Liu v. Holder, 575 F.3d 2 193, 198 & n. 5 (2d Cir. 2009) (alterations 3 omitted)(quoting Jin Shui Qui v. Ashcroft, 329 F.3d 140, 4 153 (2d Cir. 2003)); see also 8 U.S.C. § 1158(b)(1)(B)(ii); 5 Alvarado-Carillo v. INS, 251 F.3d 44, 54 (2d Cir. 2001) 6 (“As for more specific corroboration of petitioner’s 7 personal experiences, the BIA here did not identify any 8 particular document or type of document it believed to be 9 missing from the record . . . , much less explain why it 10 would have been ‘reasonable to expect the provision of such 11 materials under its own standards.’” (quoting Diallo v. 12 INS, 232 F.3d 279, 289 (2d Cir. 2000))). 13 In this case, although the IJ made a partial adverse 14 credibility determination, the determination was limited to 15 Xing’s testimony that he disclosed a fear of religious 16 persecution to the Border Patrol agent who apprehended him. 17 Generally, in the absence of an explicit adverse credibility 18 determination, an alien is entitled to a presumption of 19 credibility on appeal. 8 U.S.C. § 1158(b)(1)(B)(iii); Yan 20 Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). And 21 here, the BIA explicitly assumed Xing’s credibility.

6

1 Accordingly, because the BIA assumed credibility, to rely 2 on Xing’s failure to corroborate, the agency had to identify 3 what the evidence Xing should have presented to corroborate 4 his testimony that Chinese officials sought to arrest him for 5 attending an underground church. See 8 U.S.C. 6 § 1158(b)(1)(B)(ii). Although the agency declined to credit 7 the corroborating evidence that Xing submitted (letters from 8 his mother, cousin, and aunt in China), it failed to identify 9 any additional evidence that would have been reasonably 10 available and should have been provided. This failure to 11 identify the missing evidence frustrates judicial review: 12 When an IJ determines that corroborating evidence is 13 necessary, the applicant must provide the evidence “unless 14 the applicant does not have the evidence and cannot reasonably 15 obtain the evidence.” Id. Where the IJ has identified the 16 missing evidence, we may reverse the agency’s decision only 17 if “a reasonable trier of fact is compelled to conclude that 18 such corroborating evidence is unavailable.” 8 U.S.C. 19 § 1252(b)(4); see Yan Juan Chen v. Holder, 658 F.3d 246, 253 20 (2d Cir. 2011)(per curiam). If the IJ does not identify what 21 evidence should have been presented, neither the BIA nor this

7

1 Court can review whether the evidence was reasonably 2 available. 3 In addition to identifying what corroboration could or 4 should have been provided, on remand, the agency should 5 clarify the import of the I-213 given the BIA’s assumption of 6 credibility. As noted above, Xing’s failure to disclose his 7 fear of religious persecution in the border interview could 8 call into question the credibility of his claim that he left 9 China because he feared religious persecution. See 10 Ramsameachire, 357 F.3d at 181-82. However, this discrepancy 11 seemingly goes to credibility more than corroboration. See 12 8 U.S.C. § 1158(b)(1)(B)(ii) (allowing IJ to require 13 “evidence that corroborates otherwise credible testimony”); 14 id. § 1158(b)(1)(B) (iii) (listing inconsistencies between an 15 applicant’s statements as a ground for a credibility 16 determination). 17 Finally, as Xing argues and as the Government concedes, 18 the IJ identified missing corroboration for facts that were 19 not related to Xing’s case. Specifically, the IJ noted the 20 absence of proof of employment, an arrest and detention, and 21 alleged persecution of an applicant’s wife. But Xing’s

8

1 employment was never at issue, he did not allege that he was 2 arrested or detained, and he is unmarried. Although the 3 BIA’s decision appears to rely on the correct facts, the BIA 4 failed to either acknowledge the errors or explain why they 5 did not require remand. See Acharya v. Holder, 761 F.3d 289, 6 301 (2d Cir. 2014) (“When the [BIA] upholds questionable fact- 7 findings, and does so using a different standard, the result 8 may amount to impermissible fact finding by the BIA.”). 9 Given the lack of clarity in the agency’s reliance on 10 credibility, the agency’s failure to identify what 11 corroborating evidence should have been presented, and the 12 factual errors in the IJ’s decision, we remand for further 13 proceedings consistent with this order. Because remand is 14 warranted on these grounds, we do not reach the agency’s 15 conclusion that Xing did not demonstrate a pattern or practice 16 of persecution. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 17 (“As a general rule courts and agencies are not required to 18 make findings on issues the decision of which is unnecessary 19 to the results they reach.”).

9

1 For the foregoing reasons, the petition for review is 2 GRANTED, the BIA’s decision is VACATED, and the case is 3 REMANDED to the BIA.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court