16-2615 Zheng v. Sessions BIA Christensen, IJ A200 914 877 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 25th day of May, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 CHANGJING ZHENG, 14 Petitioner, 15 16 v. 16-2615 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Thomas V. Massucci, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Melissa Neiman- 27 Kelting, Assistant Director; 28 Christopher Buchanan, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 DC. 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 Petitioner Changjing Zheng, a native and citizen of the

6 People’s Republic of China, seeks review of a July 12,

7 2016, decision of the BIA affirming a January 28, 2015,

8 decision of an Immigration Judge (“IJ”) denying Zheng’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re

11 Changjing Zheng, No. A200 914 877 (B.I.A. July 12, 2016),

12 aff’g No. A200 914 877 (Immig. Ct. N.Y. City Jan. 28,

13 2015). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case.

15 Under the circumstances of this case, we review the

16 IJ’s decision as modified by the BIA (i.e., excluding the

17 alternative burden findings, which the BIA declined to

18 reach). See Xue Hong Yang v. U.S. Dep’t of Justice, 426

(2d Cir. 2005). The applicable standards of

20 review are well established. See

(b)(4)(B);

21 Xiu Xia Lin v. Mukasey,

(2d Cir.

22 2008).

2 1 The governing REAL ID Act credibility standard provides

2 that the agency must “[c]onsider[] the totality of the

3 circumstances,” and may base a credibility finding on an

4 applicant’s “demeanor, candor, or responsiveness, . . .

5 [the] plausibility” of his account, and inconsistencies or

6 omissions in his or his witness’s statements, “without

7 regard to whether” they go “to the heart of the applicant’s

8 claim.”

(b)(1)(B)(iii); Xiu Xia Lin, 534

9 F.3d at 163-64, 166-67. “[E]ven where an IJ relies on

10 discrepancies or lacunae that, if taken separately, concern

11 matters collateral or ancillary to the claim, the

12 cumulative effect may nevertheless be deemed consequential

13 by the fact-finder.” Tu Lin v. Gonzales,

, 402

14 (2d Cir. 2006) (internal quotation marks and citation

15 omitted). However, “where the perceived incongruities in

16 an asylum applicant’s testimony are not plainly obvious, an

17 IJ cannot rely on them to support an adverse credibility

18 ruling without first identifying the alleged

19 inconsistencies for the applicant and giving the applicant

20 an opportunity to address them.” Ming Shi Xue v. BIA, 439

(2d Cir. 2006). A “contradiction is obvious

22 . . . where the relevant inconsistency is sufficiently

3 1 conspicuous as to be evident, and where it is central

2 enough to the applicant’s claim that it could not have been

3 reasonably overlooked by the parties or the IJ . . . .”

4

. “[C]ontradictions . . . are not

5 obvious . . . where they are not premised on ‘dramatically

6 different’ accounts of the alleged persecution.”

at

7 121.

8 As an initial matter, although our jurisdiction to

9 review the agency’s pretermission of asylum on timeliness

10 grounds is limited to “constitutional claims or questions

11 of law,”

(a)(3), 1252(a)(2)(D), Zheng’s

12 argument that the IJ failed to solicit explanations for the

13 inconsistencies and omissions underlying the credibility

14 determination raises a question of law, see Ming Shi Xue,

15 439 F.3d at 119. We therefore have jurisdiction to review

16 Zheng’s argument in the context of both the credibility-

17 based pretermission of asylum and the credibility-based

18 denial of withholding of removal and CAT relief. Neither

19 this Court nor the agency has explicitly addressed the

20 question raised by the discrepancies between Zheng’s and

21 his witnesses’ testimony—how, if at all, does an IJ’s

22 obligation to confront an applicant with putative

4 1 inconsistencies change when those inconsistencies arise

2 from subsequent witness testimony. Although this case

3 presents a close question, for the reasons that follow, we

4 conclude that the discrepancies were not sufficiently

5 dramatic as to fall outside the universe of discrepancies

6 for which explanations should be sought. On remand, the

7 agency is directed to address the IJ’s responsibility to

8 solicit explanations for putative inconsistencies arising

9 from subsequent witness testimony, particularly where, as

10 here, the applicant was represented by counsel.

11 First, the IJ erred in making its credibility

12 determination by relying on the inconsistencies between

13 Zheng and his one-year witness’s testimony without first

14 confronting Zheng with the inconsistencies; the finding was

15 “not premised on ‘dramatically different’ accounts of the

16 alleged persecution.” Ming Shi Xue, 439 F.3d at 121.

17 Indeed, the IJ acknowledged that these discrepancies did

18 not go to the heart of Zheng’s claim. Zheng testified that

19 he attended the one-year witness’s grandmother’s funeral in

20 China in August 2009; that there was a 500-person banquet

21 around noon, a funeral service about an hour later, and

22 then the burial; and that he sat with the one-year

5 1 witness’s cousin at the banquet. His one-year witness

2 testified, however, that the funeral service was early in

3 the morning and that she was “[n]ot too clear” about

4 whether she recognized anyone at Zheng’s banquet table.

5 Certified Administrative Record (“CAR”) at 122-23. These

6 inconsistencies concern an event unrelated to Zheng’s

7 allegations of past or future harm; they more closely

8 resemble discrepancies that we have found to be

9 nondramatic, examples of which are set forth in the margin.1

10 Although Zheng’s counsel declined an opportunity for

11 redirect of the one-year witness and did not ask to recall

12 Zheng, the one-year witness was not confronted with Zheng’s

1 See, e.g., Ming Shi Xue, 439 F.3d at 126-27 (finding the following to be nondramatic: applicant’s assertion that he wanted a second child to help with farm work and subsequent testimony that another family raised his second child; applicant’s testimony that his wife gave birth while in hiding, but that she was subject to IUD checkups and returned to work after her pregnancy; and applicant’s claim that his wife was forced to have an abortion and descriptions of passive enforcement of the family planning policy in the State Department reports); Zhi Wei Pang v. BCIS,

(2d Cir. 2006) (finding the following to be nondramatic: applicant’s testimony that he and his wife wished to carry her pregnancy to term, but that they stayed in their village until her second trimester; applicant’s testimony that he paid only half of a family planning fine and the listing of the child in his household registry; and applicant’s omission from his application that he and his wife went into hiding together; applicant’s testimony that Chinese authorities removed possessions from their home after the birth of their second child, and his wife had a third life-threatening pregnancy due to an improper forced sterilization). But see Majidi v. Gonzales,

(2d Cir. 2005) (finding dramatic inconsistency between applicant’s assertion that opposition party members ransacked his home while he was away and his testimony that he was present, beaten, and threatened when the opposition party members ransacked his home). 6 1 inconsistent testimony and the “questions on cross-

2 examination were general and exploratory in nature.” Zhi

3 Wei Pang v. BCIS,

(2d Cir. 2006)

4 (explaining that requirement that IJ solicit explanations

5 for nondramatic inconsistencies “does not mean that the IJ

6 must duplicate the questions of the government when the

7 government has already noted testimonial flaws on cross-

8 examination[,] [b]ut when the government’s cross-

9 examination does not put the applicant on notice of a

10 putative flaw, the government’s cross-examination cannot

11 absolve the IJ of the responsibility to make the applicant

12 aware that an explanation is necessary”). The entire

13 cross-examination spans only two pages of transcript, and

14 the Department of Homeland Security (“DHS”) counsel’s

15 questions related primarily to Zheng’s relationship to the

16 witness and the order of events at the funeral. And while

17 DHS counsel specifically asked Zheng about the timing of

18 the burial as compared to the funeral and banquet, DHS

19 counsel did not ask the witness to distinguish the burial

20 from the other events or ask a single question about the

21 burial. We therefore conclude that Zheng should have had

22 an opportunity to address the inconsistencies between his

7 1 and his one-year witness’s testimony before the IJ relied

2 on them.

3 Additionally, as Zheng argues, the IJ misstated the

4 record when making the inconsistency finding about the one-

5 year witness’s cousin. The IJ stated that Zheng “went to

6 the funeral” with the one-year witness’s cousin, rather

7 than merely sitting with her at the banquet, and that the

8 one-year witness “did not recognize anyone who sat with”

9 Zheng. Instead, the one-year witness testified that she

10 was not “too clear” about recognizing anyone. CAR at 65,

11 105, 122. The IJ also stated incorrectly that Zheng

12 testified that the funeral service was in the morning, when

13 Zheng initially testified that he did not “recall too

14 clear; about an hour after the banquet.” Id. at 65, 105.

15 Although “the agency does not commit an ‘error of law’

16 every time an item of evidence . . . is described with

17 imperfect accuracy,” Mendez v. Holder,

, 323

18 (2d Cir. 2009), the imprecision underscores the purpose of

19 the requirement to solicit explanations. “Without this

20 requirement, asylum applicants would frequently be denied

21 the opportunity to clarify genuinely consistent testimony

22 that the IJ has unwittingly misconstrued. And, conversely,

8 1 immigration judges could prematurely decide that testimony

2 is inconsistent when, in fact, the purported discrepancies

3 readily admit of explanations which the IJ would find

4 valid.” Ming Shi Xue, 439 F.3d at 122.

5 Second, the IJ failed to solicit an explanation for the

6 inconsistency between Zheng and his other witness’s

7 testimony concerning the number of times they practiced

8 Falun Gong together in the United States. Zheng testified

9 that they practiced and attended parades together twice;

10 his witness initially testified that they attended two

11 parades, but had practiced together only once. DHS counsel

12 confronted the witness with Zheng’s inconsistent testimony;

13 however, after appearing to testify to having practiced

14 twice with Zheng, the witness reaffirmed that they had

15 practiced together only once. The IJ simply stated that

16 the witness “appeared to change her testimony by claiming

17 that there was a second time,” without acknowledging the

18 subsequent clarification. CAR at 66. While these

19 discrepancies do relate to Zheng’s current practice of

20 Falun Gong, and thus to his fear of future persecution in

21 China based on his prospective practice, they “are not

22 premised on ‘dramatically different’ accounts of the

9 1 alleged persecution.” Ming Shi Xue, 439 F.3d at 121; see

2 supra n.1. Moreover, although the witness had an

3 opportunity to explain why her testimony was inconsistent

4 with Zheng’s, and Zheng’s counsel declined an opportunity

5 for redirect examination of the witnesses, Zheng was not

6 himself confronted with the inconsistency before the IJ

7 relied on it to find him not credible.

8 Whether the IJ also erred by failing to solicit an

9 explanation for the omission from Zheng’s application and

10 father’s letter regarding the police’s post-arrest visits

11 presents a closer question. As the IJ observed, Zheng

12 testified that the police visited his home two or three

13 times after his arrest to look around, but these visits

14 were omitted from his application and father’s letter.

15 While these omissions are more obvious than the

16 inconsistencies arising from the witnesses’ testimony, as

17 they relate to the Chinese government’s continued interest

18 in Zheng in the aftermath of his alleged persecution, they

19 are not “premised on ‘dramatically different’ accounts of

20 the alleged persecution.” Ming Shi Xue, 439 F.3d at 121;

21 see supra n.1. Moreover, given the issues discussed above,

22 these omissions alone do not constitute substantial

10 1 evidence for the adverse credibility determination because

2 a lack of detail in an application does not necessarily

3 constitute an omission for the purpose of an adverse

4 credibility determination, and Zheng was not asked a single

5 question about his father’s letter. Pavlova v. INS, 441

(2d Cir. 2006) (“[A]sylum applicants are not

7 required to list every incident of persecution on their I-

8 589 statements.”).

9 Last, we reject the Government’s contention that Zheng

10 had an opportunity to explain because DHS counsel mentioned

11 the inconsistencies and omissions in her closing statement

12 and Zheng’s counsel gave a rebuttal. “The fundamental

13 requirement of due process is the opportunity to be heard

14 at a meaningful time and in a meaningful manner.” Mathews

15 v. Eldridge,

(1976) (internal quotation

16 marks and citation omitted; emphasis added). Zheng was not

17 recalled after his witnesses, DHS counsel did not call

18 Zheng’s attention to the inconsistencies and omissions

19 until after the close of evidence, and “the arguments of

20 counsel are not evidence.” Pretzantzin v. Holder,

(2d Cir. 2013). In sum, given the lack of

22 opportunity for explanation, we conclude that the adverse

11 1 credibility determination is not supported by substantial

2 evidence. See Ming Shi Xue, 439 F.3d at 127. Because the

3 BIA did not reach the IJ’s alternative burden findings, we

4 also do not reach those findings.

5 For the foregoing reasons, the petition for review is

6 GRANTED, the BIA’s order is VACATED, and the case is

7 REMANDED for further proceedings consistent with this

8 order. On remand, the agency is directed to address the

9 IJ’s responsibility to solicit explanations for putative

10 inconsistencies arising from subsequent witness testimony,

11 particularly where, as here, the applicant was represented

12 by counsel. As we have completed our review, any stay of

13 removal that the Court previously granted in this petition

14 is VACATED, and any pending motion for a stay of removal in

15 this petition is DISMISSED as moot.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court

12