17-258 Chen v. Sessions BIA Zagzoug, IJ A205 809 461

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 5th day of October, two thousand eighteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, ROSEMARY S. POOLER, SUSAN L. CARNEY, Circuit Judges. _____________________________________

YI SHU CHEN,

Petitioner,

v. 17-258 NAC

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

FOR PETITIONER: Richard Tarzia, Belle Mead, NJ. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Judith R. O’Sullivan, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 Yi Shu Chen, a native and citizen of the

People’s Republic of China, seeks review of a January 13,

2017, decision of the BIA affirming a May 4, 2016, decision

of an Immigration Judge (“IJ”) denying Chen’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Yi Shu Chen, No.

A205 809 461 (B.I.A. Jan. 13, 2017), aff’g No. A205 809 461

(Immig. Ct. N.Y. City May 4, 2016). 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 IJ’s decision as modified by the BIA and consider only

the adverse credibility determination. See Xue Hong Yang v.

U.S. Dep’t of Justice,

(2d Cir. 2005). The

2 applicable standards of review are well established. See

(b)(4)(B); Xiu Xia Lin v. Mukasey,

(2d Cir. 2008).

The governing REAL ID Act credibility standard provides

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

circumstances,” and may base a credibility finding on an

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his account, and inconsistencies or omissions

in his or his witness’s statements, “without regard to

whether” they go “to the heart of the applicant’s claim.”

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

-

64, 166-67. “We defer . . . to an IJ’s credibility

determination unless . . . it is plain that no reasonable

fact-finder could make such an adverse credibility ruling.”

Xiu Xia Lin,

. As set forth below, two primary

grounds for the credibility determination—testimonial

vagueness and corroboration—contain errors, and we cannot

confidently predict that remand would be futile because the

only other basis for the adverse credibility is a demeanor

finding, which is not fully supported by the record.

I. Testimonial Vagueness

The agency may rely on vague testimony in making an

3 adverse credibility determination. Shunfu Li v. Mukasey,

(2d Cir. 2008). “A fact finder may

understandably find detailed testimony more convincing than

vague testimony,”

and, “[w]here an applicant gives very

spare testimony, . . . the IJ . . . may fairly wonder whether

the testimony is fabricated. If so, the IJ and counsel for

the [government] may wish to probe for incidental details,

seeking to draw out inconsistencies that would support a

finding of lack of credibility,” Jin Shui Qiu v. Ashcroft,

(2d Cir. 2003), overruled on other grounds

by Shi Liang Lin v. U.S. Dep’t of Justice,

(2d Cir. 2008). “[A] finding of testimonial vagueness cannot,

without more, support an adverse credibility determination

unless government counsel or the IJ first attempts to solicit

more detail from the alien.” Shunfu Li,

.

Chen is correct that the agency erred in basing the

credibility determination on his purportedly vague testimony

about his detention, interrogation, and beating. The IJ found

that Chen provided few details about his beating and

detention; however, Chen testified about how he was beaten

(the police used a baton to strike his shoulder, back, and

leg); he described the questions asked during his

4 interrogation and his response (the police asked him for the

names of the church leader and members, but he refused to

answer); and he specified where he was detained (the Ming Ho

police station). Chen’s testimony is accordingly

sufficiently concrete to defeat an adverse credibility

determination on vagueness grounds. Jin Shui Qiu,

(“[T]estimony is ‘too vague’ if it doesn’t identify facts

corresponding to each of the elements of one of the ‘refugee’

categories of the immigration statutes.”); Beskovic v.

Gonzales,

(2d Cir. 2006) (observing that “a

‘minor beating’ . . . may rise to the level of persecution if

it occurred in the context of an arrest or detention on the

basis of a protected ground”). Regardless, even if Chen’s

detention-related testimony could be considered vague, the IJ

did not ask a single question about Chen’s detention, and the

only detention-related questions asked by the attorney for

the Department of Homeland Security (“DHS”) concerned the

timing of Chen’s arrest and release. The agency therefore

erred in basing the adverse credibility determination on a

lack of detail. Shunfu Li,

.

II. Corroboration

“An applicant’s failure to corroborate his or her

5 testimony may bear on credibility, because the absence of

corroboration in general makes an applicant unable to

rehabilitate testimony that has already been called into

question.” Biao Yang v. Gonzales,

(2d Cir.

2007). As discussed below, we find errors in the IJ’s

treatment of Chen’s corroborating evidence.

First, the IJ appears to have ignored Chen’s documentary

evidence of his practice of Christianity in the United States.

Although the IJ concluded in a detailed and separate

subsection of her analysis that Chen failed to credibly

establish his own U.S-church practice because his U.S.-church

witness did not credibly establish her own, the IJ appears to

have ignored Chen’s other documentary evidence, which

included photographs of himself participating in church

activities, a baptism certificate from his church, a church

letter attesting that he attended church 97 times between

July 2012 to January 2016, and the church program from the

last service that he allegedly attended with his witnesses.

While an IJ is not required to “expressly parse or refute on

the record each individual argument or piece of evidence

offered by the petitioner,” Jian Hui Shao v. Mukasey,

(2d Cir. 2008), and “we presume that an IJ has

6 taken into account all the evidence before [her], unless the

record compellingly suggests otherwise,” Xiao Ji Chen v. U.S.

Dep’t of Justice,

, 336 n.17 (2d Cir. 2006), the

record here compellingly suggests that the IJ ignored Chen’s

U.S.-church documents because the IJ appeared to place

dispositive weight on Chen’s witness’s failure to establish

her own religious practice and made numerous, specific

evidentiary findings on other documents in the 17-page,

single-spaced, written decision.

Second, Chen is correct that the IJ’s reason for

discrediting his U.S.-church witness’s testimony was based on

a misstatement of the record. Contrary to the IJ’s finding,

the witness was not confronted with Chen’s testimony that he

attended church two times per month before clarifying that

she saw him sometimes just once a month and on average twice.

see Zhou Yun Zhang v. U.S. INS,

(2d Cir. 2004)

(noting that adverse credibility determination may not rest

on “a misstatement of the facts in the record”), overruled on

other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,

(2d Cir. 2007). Moreover, although the IJ stated

that Chen testified that he attended church only two times

per month, Chen actually testified that he attended two times

7 a month on average. Accordingly, the witness’s overall

testimony that she saw Chen at church between one and three

times a month was not inconsistent with Chen’s testimony that

he attended about twice a month. Although Chen raised this

challenge before the BIA, the BIA did not mention the witness

in its decision. It is therefore unclear whether the BIA

eschewed reliance on the IJ’s finding, rejected the argument

without discussion, or merely overlooked it. Beskovic,

(requiring a certain minimal level of analysis

from agency decisions to enable meaningful judicial review).

Third, the IJ faulted Chen because he offered no

documents to corroborate his detention, and no documents

indicating that he suffered any injuries as a result of the

beating; however, Chen submitted letters from a fellow

underground church member and his father in China

corroborating his (Chen’s) arrest, detention, and beating.

While the IJ did not err in discounting Chen’s letters because

their authors were unavailable for cross examination, Y.C. v.

Holder,

(2d Cir. 2013), the reference to

Chen offering no documents to corroborate his detention or

injuries is troubling. Chen did not testify that he sought

medical treatment for the bruise on his shoulder, so it is

8 unclear what injury-related documents the IJ expected Chen to

submit.

II. Remand Futility Analysis

Because the testimonial vagueness and corroboration

findings underlying the credibility determination contain

errors, we must assess whether remand would be futile.

Lianping Li v. Lynch,

(2d Cir. 2016).

The overarching test to deem a remand futile is when the reviewing court can confidently predict that the agency would reach the same decision absent the errors that were made. To determine whether remand would be futile, a reviewing court should assess the entire record and determine whether, based on the strength of the evidence supporting the error-free findings and the significance of those findings, it is clear that the agency would adhere to its decision were the petition remanded.

(internal quotation marks and citation omitted). We

cannot deem remand futile because the only other finding

supporting the adverse credibility determination—demeanor—is

not fully supported by the record, and we have never held

that a demeanor finding alone can constitute substantial

evidence for an adverse credibility determination.

Although, “[w]e give particular deference to credibility

determinations that are based on the adjudicator’s

observation of the applicant’s demeanor,” Jin Chen v. U.S.

Dep’t of Justice,

(2d Cir. 2005), for

9 demeanor to be the only basis for a determination, there must

be some analysis that allows for meaningful judicial review,

see Poradisova v. Gonzales,

(2d Cir. 2005);

see also Li Hua Lin v. U.S. Dep’t of Justice,

(2d Cir. 2006) (observing that demeanor findings are more

reliable when supported by “specific examples of inconsistent

testimony” (internal quotation marks and citation omitted)).

The demeanor finding here is not enough on its own to deem

remand futile.

First, the transcript does not confirm the IJ’s finding

that Chen took long pauses when answering questions. Second,

while the IJ’s observation that Chen’s demeanor was cavalier

when testifying about his detention and the risks of attending

his underground church provides some support for the demeanor

finding, there was no accompanying inconsistency or lack of

detail to strengthen the finding. See Yan Juan Chen v.

Holder,

(2d Cir. 2011) (affirming adverse

credibility determination based in part on finding that

petitioner was “nonchalant” when testifying about forced

abortion). Third, the IJ’s finding that Chen was evasive

when testifying about his savings deposits is not fully

supported because Chen was responsive when asked how he had

10 the funds to maintain his deposit schedule.

For the foregoing reasons, the petition for review is

GRANTED, the BIA’s decision is VACATED, and the case is

REMANDED for further proceedings.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

11