Jing Peng Jiang v. Lynch , 615 F. App'x 15 ( 2015 )

14-1102
Jiang v. Lynch
BIA
Vomacka, IJ
A087 651 018
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 July, two thousand fifteen.
PRESENT:
GUIDO CALABRESI,
BARRINGTON D. PARKER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JING PENG JIANG,
Petitioner,
v. 14-1102
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Zhen Liang Li, New York, NY.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Terri J. Scadron,
Assistant Director; Aaron D. Nelson,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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 Jing Peng Jiang, a native and citizen of China,
seeks review of a March 21, 2014 decision of the BIA affirming
a September 23, 2011 decision of an Immigration Judge (“IJ”)
denying Jiang’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Jing Peng Jiang, No. A087 651 018 (B.I.A. Mar. 21, 2014),
aff’g No. A087 651 018 (Immig. Ct. N.Y. City Sept. 23, 2011).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We have reviewed the IJ’s decision as modified by the BIA
(i.e., minus the IJ’s adverse credibility determination). See
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4); see also Yanqin Weng
v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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An asylum applicant’s testimony “may be sufficient” to
sustain his burden of proof if it is credible and persuasive.
8 U.S.C. § 1158(b)(1)(B)(ii). “Where the trier of fact,”
however, “determines that the applicant should provide evidence
that corroborates otherwise credible testimony, such evidence
must be provided unless the applicant does not have the evidence
and cannot reasonably obtain the evidence.” Id. When denying
an asylum application for failure to corroborate, the IJ must
identify the corroborating evidence that the applicant should
have presented, and explain why such evidence would be
reasonably available. Yan Juan Chen v. Holder, 658 F.3d 246,
253 (2d Cir. 2011). Ultimately, an applicant for asylum or
withholding of removal bears the burden of proving that she is
a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A) and
is therefore eligible for asylum. 8 U.S.C. § 1158(b)(1)(B)(i).
In this case, the IJ first determined that Jiang was not
credible. Because of that determination, the IJ ruled that
Jiang would need to present “the best corroborating evidence,”
and the “most corroborating evidence possible.” As
corroboration, Jiang presented photos of himself participating
in Falung Gong activities, letters written on his behalf from
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friends and family members, and the live testimony of a friend
in the United States. The IJ did not discount this evidence
entirely, but did give it limited weight. After considering
both the “problems with [Jiang’s] credibility” and the limited
weight given to the corroborating evidence, the IJ concluded
that, “in total,” Jiang had failed to meet his burden of proof.
On appeal, the BIA did not reach the credibility issue, and
affirmed solely on the ground that Jiang “did not satisfy his
burden to adequately corroborate his claim.” This was error.
The IJ’s credibility and corroboration rulings were not
separate and independent grounds for dismissing Jiang’s claims.
Instead, the IJ made clear that the adequacy of Jiang’s
corroboration was dependent on the credibility, or lack
thereof, of his testimony. The “best” and “most” corroboration
was demanded precisely because the IJ considered Jiang
incredible. Moreover, the IJ’s ultimate conclusion that Jiang
had failed to meet his burden was made “in total”—i.e., based
on an assessment of both Jiang’s credibility and the strength
of his corroborating evidence. As such, it is impossible to
assess what impact Jiang’s corroborating evidence would have
had if the IJ had found him credible. Even had Jiang been found
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credible, the IJ might nevertheless have required him to present
some—but perhaps not the “best” or “most”—corroborating
evidence to support his testimony. Or the IJ might have found
Jiang’s testimony sufficient, absent any corroborating
evidence at all. Accordingly, the BIA should have addressed
the IJ’s adverse credibility ruling before assessing the
corroborating evidence. Cf. Diallo v. I.N.S., 232 F.3d 279,
287 (2d Cir. 2000) (BIA’s failure to make credibility assessment
“frustrates appellate review” and denies asylum-seekers the
potential benefit of establishing their claims with credible
testimony alone). We therefore remand to the BIA so that it may
either (a) affirm the IJ’s credibility determination, or (b)
remand the case to the IJ for a decision on whether Jiang’s
corroborating evidence would have sufficed on the assumption
that he testified credibly.
For the foregoing reasons, the petition for review is
GRANTED, we VACATE the BIA’s order, and REMAND for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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