Xia Li v. Holder ( 2013 )

12-3387
Li v. Holder
BIA
Bain, IJ
A089 253 273
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of October, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 XIA LI,
14 Petitioner,
15
16 v. 12-3387
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Mary Jane Candaux,
27 Assistant Director; Ashley Martin,
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
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 Xia Li, a native and citizen of China, seeks review of
6 an August 7, 2012, order of the BIA affirming the November
7 22, 2010, decision of Immigration Judge (“IJ”) Quynh Vu
8 Bain, which denied her application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Xia Li, No. A089 253 273 (B.I.A. Aug. 7,
11 2012), aff’g No. A089 253 273 (Immig. Ct. N.Y. City Nov. 22,
12 2010). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified and supplemented by the BIA’s
16 decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
17 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d
18 268, 271 (2d Cir. 2005). The applicable standards of review
19 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
20 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
21 2009). In cases, such as this one, where neither the IJ nor
22 the BIA made an explicit credibility finding, we assume the
23 petitioner is credible. See Yan Chen, 417 F.3d at 271-72.
2
1 I. Asylum: Pretermission
2 Although 8 U.S.C. § 1158(a)(3) provides that no court
3 shall have jurisdiction to review the agency’s finding that
4 an asylum application was untimely under 8 U.S.C.
5 § 1158(a)(2)(B), or its finding of neither changed nor
6 extraordinary circumstances excusing the untimeliness under
7 8 U.S.C. § 1158(a)(2)(D), we retain jurisdiction to review
8 constitutional claims and “questions of law.” 8 U.S.C.
9 § 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471
10 F.3d 315, 329 (2d Cir. 2006); Gui Yin Liu v. INS, 508 F.3d
11 716, 720 (2d Cir. 2007).
12 Li has raised a question of law as to whether the
13 agency mischaracterized and ignored evidence in the record
14 related to the timeliness of her asylum application. Gui
15 Yin Liu, 508 F.3d at 722 (where the IJ unambiguously
16 mischaracterizes the record, it raises a question of law).
17 We remand for the agency to consider the timeliness of the
18 asylum application in light of the entire record. Although
19 the BIA acknowledged that the contradiction relied upon by
20 the IJ was not actually present, in determining that the
21 remaining evidence did not make a clear and convincing
22 showing of Li’s entry date, it failed to further consider
23 the record.
3
1 The BIA cited a lack of travel documents, lack of
2 testimony from eyewitnesses with first-hand knowledge of
3 Li’s date of entry, and Li’s discrepant testimony as the
4 reasons for its affirmance. However, Li explained her
5 discrepant testimony by noting that she had originally cited
6 the date she arrived in New York as the date of arrival
7 because she had not known that Los Angeles was part of the
8 United States. Neither the BIA, nor the IJ, stated why this
9 explanation was insufficient. See Pavlova v. INS, 441 F.3d
10 82, 89-90 (2d Cir. 2006) (“[W]here it is not apparent on the
11 face of the record that the [agency] has considered the
12 applicant’s responses to the [agency’s] credibility
13 concerns, we . . . require the [agency] to say enough to
14 allow us to understand, and to review, the reasons for
15 rejecting the applicant’s testimony.”). In addition, Li
16 offered a cousin’s testimony regarding her presence in China
17 in July 2007 and in New York by August 2007, in
18 contradiction to the BIA’s finding that Li did not offer
19 anyone with personal knowledge of her entry to the United
20 States. Thus, because the agency mischaracterized or failed
21 to consider evidence, remand is required. Xiao Kui Lin v.
22 Mukasey, 553 F.3d 217, 220 (2d Cir. 2009); Gui Yin Liu, 508
23 F.3d at 722.
4
1 II. Asylum & Withholding of Removal
2 To establish eligibility for asylum or withholding of
3 removal, an applicant must show that she has suffered past
4 persecution, or has a well-founded fear of future
5 persecution, on account of race, religion, nationality,
6 membership in a particular social group, or political
7 opinion. See 8 U.S.C. § 1101(a)(42); 8 C.F.R. §§ 1208.13(b)
8 (asylum), 1208.16(b) (withholding of removal). If the
9 applicant is found to have suffered past persecution, she is
10 presumed to have a well-founded fear of future persecution
11 on the basis of the original claim. 8 C.F.R.
12 §§ 1208.13(b)(1), 1208.16(b)(1). The government may rebut
13 that presumption if it shows, by a preponderance of the
14 evidence, either that there has been a fundamental change in
15 circumstances, or that the applicant could safely relocate.
16 8 C.F.R. §§ 1208.13(b)(1)(I)-(ii), 1208.16(b)(1)(I)-(ii);
17 see also Matter of D-I-—, 24 I. & N. Dec. 448, 450-51 (BIA
18 2008) (discussing the burden shifting framework).
19 Furthermore, to withstand review, the agency must have
20 considered the evidence of record and supported its decision
21 with adequate reasoning. See 8 U.S.C. § 1158(b)(1)(B)(ii);
22 Tian-Yong Chen v. U.S. INS, 359 F.3d 121, 127 (2d Cir. 2004)
5
1 (“where the agency’s determination is based on an inaccurate
2 perception of the record, omitting potentially significant
3 facts, we may remand for reconsideration or rehearing”). As
4 discussed below, we conclude that the agency failed to apply
5 the proper legal framework or demonstrate that it considered
6 the evidence of record. Tian-Yong Chen, 359 F.3d at 127.
7 Initially, the IJ erred as she did not make a
8 credibility finding, and did not consider Li’s
9 individualized evidence, yet concluded that Li had not
10 suffered past persecution. Tian-Yong Chen, 359 F.3d at 127.
11 Although Li alleged that she was beaten twice while in
12 detention, had her Bible confiscated, and was deprived of
13 food, the IJ did not consider whether these beatings, or the
14 circumstances cumulatively, rose to the level of
15 persecution. See Beskovic v. Gonzales, 467 F.3d 223, 226
16 (2d Cir. 2006). Instead, the IJ misstated the law, finding
17 that one way to establish past persecution is by showing a
18 pattern or practice of persecution of a group of similarly
19 situated individuals. As the pattern and practice standard
20 is relevant only in assessing a well-founded fear of
21 persecution, and not whether an applicant suffered past
22 persecution, the IJ applied an erroneous legal standard in
23 evaluating Li’s claim of past persecution. See 8 C.F.R.
6
1 §§ 1208.13(b)(2)(iii)(A), 1208.16(b)(2)(I); see also
2 Alibasic v. Mukasey, 547 F.3d 78, 87 n.6 (2d Cir.
3 2008)(noting the agency is obligated to consider the
4 particular circumstances of the applicant’s case).
5 On appeal, the BIA recast the IJ’s decision as finding
6 Li had failed to corroborate her claim, but it similarly
7 ignored whether Li had established past persecution. In a
8 REAL ID Act case, such as this one, the agency may require
9 corroboration despite otherwise credible testimony, unless
10 it cannot be reasonably obtained. See 8 U.S.C.
11 § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C); Chuilu
12 Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009). However,
13 before denying a claim solely because of an applicant’s
14 failure to provide corroborating evidence, the agency must,
15 either in its decision or otherwise in the record:
16 (1) identify the specific pieces of missing, relevant
17 documentation and explain that it was reasonably available;
18 (2) provide the petitioner an opportunity to explain the
19 omission; and (3) assess any explanation given. See Chuilu,
20 575 F.3d at 198; see also 8 U.S.C. § 1158(b)(1)(B)(ii).
21 Although the BIA acknowledged this standard, its focus
22 on corroboration did not cure the IJ’s decision of its
23 flaws. First, the BIA erred by citing evidence as missing
7
1 that the IJ did not address in her opinion, including twice
2 mentioning that Li should have provided a letter from her
3 mother. See Ming Shi Xue v. BIA, 439 F.3d 111, 122 (2d Cir.
4 2006) (“before denying an asylum petition because of
5 insufficient corroboration, an IJ [must give] adequate and
6 meaningful notice to the applicant of evidence that the IJ
7 believed was significant and missing.”). Second, the BIA
8 did not address the veracity of the letters from Li’s
9 father, friend in China, or church friend in Brooklyn.
10 These omissions are not minor, but rather involve a failure
11 to consider potentially significant evidence in the record.
12 Tian-Yong Chen, 359 F.3d at 123 (remanding when “both the
13 BIA and the IJ overlooked potentially significant evidence
14 supporting [petitioner’s] applications for asylum”). Third,
15 while the BIA cited the corroboration standard that assumes
16 the alien is credible, it obliquely suggested in a footnote
17 that perhaps she was not. Finally, the BIA also did not
18 state whether Li had established past persecution and
19 whether she was entitled to a rebuttable presumption of a
20 well-founded fear.
21 For the foregoing reasons, the petition for review is
22 GRANTED, and the case REMANDED for further proceedings
23 consistent with this order. Any pending request for oral
8
1 argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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