Su Zheng v. Holder

12-3209
Zheng v. Holder
BIA
Balasquide, IJ
A087 634 499
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.
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 17th day of December, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
SU ZHENG,
Petitioner,
v. 12-3209
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Principal Deputy
Assistant Attorney General; Terri J.
Scadron, Assistant Director;
Genevieve Holm, 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, and the case is REMANDED.
Su Zheng, a native and citizen of the People’s Republic
of China, seeks review of a July 24, 2012, decision of the
BIA denying her motion to remand and affirming the February
25, 2011, decision of Immigration Judge (“IJ”) Javier
Balasquide, pretermitting her asylum application. In re Su
Zheng, No. A087 634 499 (B.I.A. July 24, 2012), aff’g No.
A087 634 499 (Immig. Ct. N.Y. City Feb. 25, 2011). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
the decision of the IJ as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009). Because Zheng does not
challenge the denial of her motion to remand, we address
only the pretermission of her claim for asylum.
An asylum applicant must demonstrate “by clear and
convincing evidence,” through credible testimony or reliable
2
corroborating evidence, that she filed her application
within one year after the date of her “arrival in the United
States.” 8 U.S.C. § 1158(a)(2)(B). The agency ruled that
Zheng was not credible in testifying that she arrived in the
United States on September 12, 2008, within one year of her
application for asylum on July 31, 2009.
While this Court lacks jurisdiction to review the
determination that an asylum application is untimely, it
retains jurisdiction to consider constitutional claims or
questions of law. See 8 U.S.C. §§ 1158(a)(2)(B), (3),
1252(a)(2)(D); Dong Zhong Zheng v. Mukasey, 552 F.3d 277,
285 (2d Cir. 2009). Zheng argues that the IJ erred in
deeming two aspects of her testimony inconsistent with a
record from her hospital visit, thus raising a question of
law. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 328-29 (2d Cir. 2006). Zheng testified that her illness
began 4 or 5 days prior to her hospital visit; the hospital
record indicated one week. Zheng described the department
where she was treated as the “[c]old department, the
department that treats cold and cough”; the hospital record
identified the department as the “outpatient department.”
3
These alleged “inconsistencies” are not merely trivial,
they cannot reasonably be deemed inconsistencies at all.
Characterizing a time interval as a “week” is not
necessarily a precise measurement of seven days. When the
hospital attendant heard Zheng complain of symptoms for 4 or
5 days, the attendant might well have thought Zheng was
describing the working days of the prior week. Nor was
there an inconsistency as to the identification of the
treating department. After first using the phrase “[c]old
department,” Zheng immediately amplified her answer to say
“the department that treats cold and cough.” Obviously, the
“outpatient department,” as identified in the hospital
record, is the department “that treats cold and cough,” as
identified by Zheng.
Zheng’s credibility as to her date of arrival in the
United States, which is critical to the timeliness of her
asylum claim, must be reconsidered without reliance on these
two items of supposed inconsistency.
For the foregoing reasons, the petition for review is
GRANTED, and the case is REMANDED for further consideration.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4