16-1594 Ye v. Sessions BIA
Hom, IJ
A205 301 355
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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 29th day of January, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 TENGCHANG YE, 14 Petitioner, 15 16 v. 16-1594 17 NAC 18 JEFFERSON B. SESSIONS III, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Yerman & Jia, LLC, 24 New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Douglas E. 28 Ginsburg, Assistant Director; 29 Timothy Bo Stanton, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, 33 Washington, 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 is 4 GRANTED. 5 Petitioner Tengchang Ye, a native and citizen of the 6 People’s Republic of China, seeks review of an April 21, 2016 7 decision of the BIA affirming a September 29, 2014 decision of 8 an Immigration Judge (“IJ”) denying Ye’s application for 9 asylum, withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Tengchang Ye, No. A205 301 355 11 (B.I.A. Apr. 21, 2016), aff’g No. A205 301 355 (Immig. Ct. N.Y. 12 City Sept. 29, 2014). We assume the parties’ familiarity with 13 the underlying facts and procedural history in this case. 14 Under the circumstances of this case, we review the IJ’s 15 decision as modified by the BIA and consider only the adverse 16 credibility determination, which the BIA found dispositive. 17 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 18 (2d Cir. 2005). The applicable standards of review are well 19 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 20 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 21 The governing REAL ID Act credibility standard provides 22 that the agency must “[c]onsider[] the totality of the 23 circumstances,” and may base a credibility finding on an
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1 applicant’s “demeanor, candor, or responsiveness,” the 2 plausibility of his account, and inconsistencies or omissions 3 in his or his witness’s statements, “without regard to whether” 4 they go “to the heart of the applicant’s claim.” 8 U.S.C. 5 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-67. 6 For the reasons that follow, we are unable to conclude that 7 substantial evidence supports the agency’s determination that 8 Ye was not credible. 9 Initially, the agency’s adverse credibility determination 10 is entirely based on discrepancies arising from Ye’s credible 11 fear interview; the agency did not assess, however, whether the 12 interview record displayed the requisite “hallmarks of 13 reliability.” Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 14 2009). A credible fear interview warrants “close examination” 15 because it may “be perceived as coercive” or fail to “elicit 16 all of the details supporting an asylum claim.” Id. at 724-25. 17 That is because “an alien appearing at a credible fear interview 18 has ordinarily been detained since his or her arrival in the 19 United States and is therefore likely to be more unprepared, 20 more vulnerable, and more wary of government officials than an 21 asylum applicant who appears for an interview before 22 immigration authorities well after arrival.” Id. at 724. 23 Although a credible fear interview can be considered in
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1 assessing credibility if “the record of a credible fear 2 interview displays the hallmarks of reliability,” id. at 725, 3 the agency neither acknowledged this requirement nor assessed 4 the reliability of Ye’s credible fear interview record. 5 Moreover, the agency’s adverse credibility determination 6 is based on only one inconsistency involving the substance of 7 Ye’s claim: that between his statements at his credible fear 8 interview and his later testimony about whether he was burned, 9 or merely threatened, with a lit cigarette. Ye explained in his 10 application that he misspoke during his credible fear 11 interview, and he testified that the interviewer may have 12 misunderstood him. In his decision, the IJ stated erroneously 13 that, following instructions by the snakeheads, Ye admitted 14 that he lied under oath about being burned with a cigarette. 15 Ye did admit that he lied during his credible fear interview 16 about the dates of his travel to the United States, and averred 17 that he did so because his human trafficker threatened to harm 18 his family if he did not conceal his smuggling information. But 19 Ye did not advance this explanation for the discrepancy in his 20 testimony about being threatened with a lit cigarette. The IJ 21 thus misstated the record when rejecting Ye’s explanation and 22 erroneously failed to consider Ye’s actual explanation. Id. 23 See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 403 (2d
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1 Cir. 2005) (“Absent a reasoned evaluation of [the applicant’s] 2 explanations, the IJ’s conclusion that his story is implausible 3 was based on flawed reasoning and, therefore, cannot constitute 4 substantial evidence supporting her conclusion.”). 5 The remaining bases for the credibility determination 6 relate only to the details of Ye’s travel to the United States, 7 i.e., whether he used his own passport, and the dates on which 8 he departed China and arrived in the United States. Before the 9 REAL ID Act took effect, we held that date discrepancies “need 10 not be fatal to credibility, especially if the errors are 11 relatively minor and isolated, and do not concern material 12 facts.” Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000) 13 (internal citations omitted). Although the REAL ID Act allows 14 an IJ to “rely on any inconsistency . . . in making an adverse 15 credibility determination,” the “totality of the 16 circumstances” must still support the determination that the 17 applicant is not credible. Xiu Xia Lin, 534 F.3d at 167. On 18 appellate review, “[w]e must assess whether the IJ has provided 19 specific, cogent reasons for the adverse credibility finding 20 and whether those reasons bear a legitimate nexus to the 21 finding.” Id. at 166 (internal quotation marks omitted). 22 The agency made no attempt to explain why the four-day 23 departure date discrepancy, three-day arrival date
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1 discrepancy, and inconsistency about whether Ye travelled on 2 his own passport undermined the entirety of Ye’s claim. The 3 agency’s failure to supply any reasoning in this regard 4 precludes meaningful review of its analysis. See Poradisova 5 v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite our 6 generally deferential review of IJ and BIA opinions, we require 7 a certain minimum level of analysis from the IJ and BIA opinions 8 denying asylum, and indeed must require such if judicial review 9 is to be meaningful.”). 10 We have additional concerns with the agency’s reliance on 11 possible inconsistencies in Ye’s travel-related statements. 12 For example, the IJ rejected Ye’s explanation for the departure 13 date discrepancy solely because Ye was under oath during his 14 credible fear interview. This finding is in tension with our 15 case law calling for “close examination” of credible fear 16 interview statements because the interview may “be perceived 17 as coercive” and the alien may be “wary of government 18 officials.” Ming Zhang, 585 F.3d at 724. For similar reasons, 19 the IJ’s rejection of Ye’s explanation for the passport 20 discrepancy is also troubling. Ye asserted that he concealed 21 information during his credible fear interview at the human 22 trafficker’s direction, and under threat from the trafficker. 23 The IJ rejected this explanation on the grounds that Ye was
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1 provided with an interpreter, waived the presence of counsel, 2 and was under oath when he made the relevant statements. The 3 IJ’s references to an interpreter being present and to Ye 4 waiving the presence of counsel do not clearly relate to Ye’s 5 explanation that he lied to prevent his smuggler from acting 6 against his family in China, and do not reflect reasoned 7 consideration of Ye’s explanation. See Xiu Xia Lin, 534 F.3d 8 at 166; Cao He Lin, 428 F.3d at 403. And, as noted above, the 9 mere fact that Ye was under oath during his credible fear 10 interview does not support the wholesale rejection of his 11 explanation. See Ming Zhang, 585 F.3d at 724. 12 In light of the foregoing errors in the agency’s 13 credibility analysis, we are unable to conclude that 14 substantial evidence supports its adverse credibility ruling. 15 See Xiu Xia Lin, 534 F.3d at 165-67. All but one of the bases 16 for the credibility determination concern Ye’s travel to the 17 United States, and the agency did not address the reliability 18 of the credible fear interview or otherwise explain how, viewing 19 the totality of the circumstances, these discrepancies 20 regarding his travel and the single inconsistency regarding 21 whether Ye was burned or merely threatened with burning render 22 the entirety of Ye’s claim not credible. See Poradisova, 420 23 F.3d at 77. Ye also argues that the BIA erred by failing to
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1 consider whether he independently established a well-founded 2 fear of future persecution and challenges the IJ’s alternative 3 non-credibility based rejection of his future persecution 4 claim. But, because the credibility determination was the sole 5 basis for the BIA’s denial of relief, only the credibility 6 determination is properly before us. Xue Hong Yang, 426 F.3d 7 at 522. Had the adverse credibility determination been 8 supported by substantial evidence, it would have applied to Ye’s 9 description of both his past and his current practice of 10 Christianity, and would therefore have afforded a basis for 11 denying Ye’s claims based on both past and future persecution. 12 See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006). 13 For the foregoing reasons, the petition for review is 14 GRANTED, the BIA’s order is VACATED, and case is REMANDED for 15 further proceedings consistent with this order. As we have 16 completed our review, any stay of removal that the Court 17 previously granted in this petition is VACATED, and any pending 18 motion for a stay of removal in this petition is DISMISSED as 19 moot. Any pending request for oral argument in this petition 20 is DENIED in accordance with Federal Rule of Appellate 21 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk of Court