Chuan Feng Yu v. Sessions ( 2017 )

14-1569
Yu v. Sessions
BIA
Cheng, IJ
A087 986 538
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 16th day of June, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHUAN FENG YU,
14 Petitioner,
15
16 v. 14-1569
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23 FOR PETITIONER: Chuan Feng Yu, pro se, Flushing,
24 NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal
27 Deputy Assistant Attorney
28 General; Janette L. Allen, Senior
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jeff Sessions is automatically substituted for former
Attorney General Loretta E. Lynch as Respondent.
1 Litigation Counsel; Raya Jarawan,
2 Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 GRANTED, the BIA’s decision is VACATED, and the case is REMANDED
11 for further proceedings consistent with this order.
12 Petitioner Chuan Feng Yu, a native and citizen of the
13 People’s Republic of China, seeks review of a February 25, 2014,
14 decision of the BIA affirming the September 26, 2011, decision
15 of an Immigration Judge (“IJ”) denying Yu’s application for
16 asylum, withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Chuan Feng Yu, No. A087 986 538
18 (B.I.A. Feb. 25, 2014), aff’g No. A087 986 538 (Immig. Ct. N.Y.
19 City Sept. 26, 2011). We assume the parties’ familiarity with
20 the underlying facts and procedural history in this case.
21 We have reviewed the decisions of both the IJ and BIA.
22 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
23 applicable standards of review are well established. See
24 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
25 165-66 (2d Cir. 2008).
2
1 I. Credibility
2 The governing REAL ID Act credibility standard provides
3 that the agency must “[c]onsider[] the totality of the
4 circumstances,” and may base a credibility finding on an
5 applicant’s “demeanor, candor, or responsiveness,” the
6 plausibility of his account, and inconsistencies in his or his
7 witness’s statements, “without regard to whether” they go “to
8 the heart of the applicant’s claim.” 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
10 defer . . . to an IJ’s credibility determination unless . . . it
11 is plain that no reasonable fact-finder could make such an
12 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
13 For the reasons that follow, we conclude that the agency’s
14 credibility determination is not supported by the totality of
15 the circumstances.
16 Although we have recognized that “[a]n inconsistency and
17 an omission are, for . . . purposes [of an adverse credibility
18 determination], functionally equivalent,” the IJ
19 mischaracterized the lack of certain details in Yu’s
20 application as omissions. See Pavlova v. INS, 441 F.3d 82, 91
21 (2d Cir. 2006) (concluding that an IJ may err in finding that
22 a lack of detail in an application necessarily constitutes an
3
1 omission for purposes of an adverse credibility determination).
2 Yu testified that the police beat him 30 to 40 times to keep
3 him awake during his detention, and the IJ found that while Yu’s
4 application did state he was not permitted to sleep, it was
5 troubling that Yu’s application did not specify that he was
6 beaten 30 to 40 times. Yu’s application provided, however,
7 that the police “didn’t let [him] sleep or eat for two straight
8 days. During this period, they constantly cursed at [him] and
9 beat [him] up.” Therefore, although Yu’s application did not
10 explicitly quantify the number of beatings, it did not omit that
11 he was repeatedly beaten to keep him awake, and the IJ erred
12 in concluding that Yu’s failure to give a precise number was
13 a significant omission from his application. See id. at 90
14 (“[A]sylum applicants are not required to list every incident
15 of persecution on their I-589 statements.”).
16 The IJ’s demeanor finding, which is supported by only a
17 single example from the record, is also problematic. An IJ’s
18 assessment of an applicant’s demeanor generally merits “great
19 deference.” Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.
20 2006). The IJ concluded that Yu failed to answer directly three
21 questions regarding why his wife would have to have an abortion.
22 However, contrary to the IJ’s finding, when the question was
4
1 phrased clearly, Yu was responsive, stating that the government
2 rigorously enforces the family planning policy in his local
3 area, and, because his first child was a boy, his wife was not
4 allowed to have a second child. The initial questions posed
5 related to how the forced abortion was accomplished (rather than
6 to why his wife was subject to that penalty). Given the initial
7 lack of clarity in the question, this single example of a lack
8 of responsiveness does not support the IJ’s conclusion that Yu
9 was testifying from a script rather than from actual memory or
10 that his demeanor alone was sufficient grounds for the adverse
11 credibility determination, which is not a conclusion that we
12 have previously embraced. See Diallo v. Holder, 399 F. App’x
13 678, 679 (2d Cir. 2010).
14 Given the foregoing errors, which relate to the IJ’s most
15 significant bases for the adverse credibility determination,
16 we cannot conclude that remand would be futile. See Li Hua Lin
17 v. U.S. Dep’t of Justice, 453 F.3d 99, 106-07 (2d Cir. 2006).
18 II. Pretermission of Asylum
19 Remand could be futile regarding asylum if the agency’s
20 timeliness finding is a valid alternative ground for denial.
21 Li Hua Lin, 453 F.3d at 107. However, we cannot conclude that
22 the agency’s one-year bar ruling is a valid alternative basis.
5
1 An asylum application must be filed within one year of an
2 applicant’s arrival in the United States, absent changed or
3 extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D).
4 Our jurisdiction to review the agency’s pretermission of asylum
5 on timeliness grounds is limited to “constitutional claims or
6 questions of law.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
7 Yu’s argument that the agency erred in discounting the
8 testimony of his one-year witness presents an open legal
9 question for review: whether an IJ who doubts the veracity of
10 a written statement from a witness who is available for
11 cross-examination must cross-examine that witness prior to
12 discounting the witness’s statement solely on the grounds that
13 the witness is interested. “[A]n IJ is not merely the fact
14 finder and adjudicator, but also has an obligation to establish
15 and develop the record.” Islam v. Gonzales, 469 F.3d 53, 55
16 (2d Cir. 2006); see also 8 U.S.C. § 1229a(b)(1) (“The
17 immigration judge shall administer oaths, receive evidence, and
18 interrogate, examine, and cross-examine the alien and any
19 witnesses.” (emphasis added)). The Supreme Court has observed
20 that “the crucible of cross-examination” is the
21 “constitutionally prescribed method of assessing reliability”
22 of testimonial statements. Crawford v. Washington, 541 U.S.
6
1 36, 61-62 (2004). Here, however, the IJ did not cross-examine
2 Yu’s one-year witness because the parties’ had stipulated that
3 she would testify consistently with her statement. Although
4 we have approved of discounting “letters from relatives and
5 friends” on the grounds that the authors are “interested
6 witnesses who were not subject to cross-examination,” Matter
7 of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010), rev’d
8 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d
9 Cir. 2012), neither we nor the BIA has addressed whether 8 U.S.C.
10 § 1229a(b)(1) requires an IJ to cross-examine an available
11 witness before discrediting a written statement solely on the
12 ground that the author is an interested witness. We remand for
13 the BIA to address in the first instance the extent of an IJ’s
14 duties under § 1229a(b)(1) in such a situation. See Jian Hui
15 Shao v. BIA, 465 F.3d 497, 501 (2d Cir. 2006) (“[W]e conclude
16 that the BIA is better situated than we are to decide the
17 statutory interpretation question in the first instance.”).
18 For the foregoing reasons, the petition for review is
19 GRANTED, the BIA’s decision is VACATED, and the case is REMANDED
20 for further proceedings consistent with this order. As we have
21 completed our review, any stay of removal that the Court
22 previously granted in this petition is VACATED, and any pending
7
1 motion for a stay of removal in this petition is DISMISSED as
2 moot. Any pending request for oral argument in this petition
3 is DENIED in accordance with Federal Rule of Appellate Procedure
4 34(a)(2), and Second Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
8