Sheng Tuo Jiang v. Gonzales
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this order.
Sheng Tuo Jiang, a native and citizen of China, seeks review of a May 13, 2003 order of the BIA partially adopting the July 9, 2002 decision of immigration judge (“IJ”) William Van Wyke denying Jiang’s applications for asylum, withholding of removal, and relief under the Convention Against Torture. In re Sheng Tuo Jiang, No. A77 322 787 (B.I.A. May 13, 2003), aff'g A77 322 787 (Immig. Ct. N.Y. City July 9, 2002). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA affirms the IJ’s decision in some respects but not others, this Court reviews the IJ’s decision as modified by the BIA decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 158 (2d Cir. 2006) (agreeing with this principle but avoiding remand, in spite of deficiencies in an adverse credibility determination, because it could be confidently predicted that the IJ would adhere to the decision were the case remanded).
This Court has held that when deciding a claim for asylum and related relief, the agency must first determine whether an applicant is credible and then whether the applicant has met his or her burden of proof; failure to make an explicit credibility finding may be a ground for vacatur. Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000). Here, the IJ failed to comply with the first prong. The IJ noted that he had doubts as to Jiang’s credibility (observing that Jiang’s role in the Falun Gong printing scheme seemed to diminish as his testimony progressed, and that Jiang’s testimony about his relationship with his brother was also progressively more vague), but did not make an explicit credibility determination. The IJ observed that background material in the record indicated that the Chinese government is “fanatical and obsessive” about eliminating Falun Gong members. The IJ also noted that even if Jiang’s story were true, he did not think that even malicious Chinese authorities would continue to seek his arrest, as Jiang was “an extremely small fish in the pond they were trying to drain.” The IJ ultimately concluded that Jiang did not provide sufficiently detailed testimony regarding the facts upon which his claim was premised.
While the vagueness of testimony may be an independent basis for denying a claim irrespective of credibility, this is so only where the testimony does not identify facts corresponding to each of the elements on which the applicant has the burden of proof. See Jin Chen v. U.S.
For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this order. Having completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.
Reference
- Full Case Name
- Sheng Tuo JIANG v. Alberto R. GONZALES
- Status
- Published