17-850 Lin v. Whitaker BIA Hom, IJ A205 583 081 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 19th day of December, two thousand eighteen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 PETER W. HALL, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 SHIJING LIN, AKA XUE JING LIN, 14 Petitioner, 15 16 v. 17-850 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Joshua Bardavid, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General, Civil Division; 27 Song E. Park, Senior Litigation 28 Counsel, Office of Immigration 29 Litigation; Matt A. Crapo, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 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 Shijing Lin, a native and citizen of the

6 People’s Republic of China, seeks review of a March 15, 2017,

7 decision of the BIA affirming a July 26, 2016, decision of an

8 Immigration Judge (“IJ”) denying asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Shijing Lin, No. A205 583 081 (B.I.A. Mar.

11 15, 2017), aff’g No. A205 583 081 (Immig. Ct. N.Y. City Jul.

12 26, 2016). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 We have reviewed the IJ’s decision as modified by the

15 BIA decision, i.e., minus the adverse credibility finding

16 that the BIA did not assess and the BIA’s rejection of the

17 IJ’s finding that there was available evidence to document

18 Lin’s alleged arrest, detention, and fine. See Xue Hong Yang

19 v. U.S. Dep’t of Justice,

(2d Cir. 2005).

20 The applicable standards of review are well established. See

21

(b)(4)(B); Chuilu Liu v. Holder,

,

22 196 (2d Cir. 2009).

2 1 “The testimony of the applicant may be sufficient to

2 sustain the applicant’s burden without corroboration, but

3 only if the applicant satisfies the trier of fact that the

4 applicant’s testimony is credible, is persuasive, and refers

5 to specific facts sufficient to demonstrate that the

6 applicant is a refugee.”

(b)(1)(B)(ii); see

7 also Chuilu Liu,

. “In determining whether

8 the applicant has met [his] burden, the trier of fact may

9 weigh the credible testimony along with other evidence of

10 record. Where the trier of fact determines that the

11 applicant should provide evidence that corroborates otherwise

12 credible testimony, such evidence must be provided unless the

13 applicant does not have the evidence and cannot reasonably

14 obtain the evidence.”

(b)(1)(B)(ii).

15 Because the BIA did not reach the IJ’s adverse

16 credibility determination, we presume Lin to be credible.

17 See Yan Chen v. Gonzales,

(2d Cir. 2005).

18 Given this presumption of credibility, the BIA should have

19 identified why Lin’s testimony was lacking to the extent

20 that corroboration was necessary. See 8 U.S.C.

21 § 1158(b)(1)(B)(ii); Poradisova v. Gonzales,

,

22 77 (2d Cir. 2005) (“We require a certain minimum level of

3 1 analysis from the IJ and BIA opinions denying asylum . . .

2 if judicial review is to be meaningful.”). Accordingly, we

3 remand for further explanation as to why corroboration was

4 required.

5 In addition, given the BIA’s conclusion that there was

6 likely no available corroboration for Lin’s arrest,

7 detention, and fine, we find insufficient grounds for the

8 BIA’s denial of relief on corroboration grounds as

9 currently explained. There is little support for the

10 agency’s conclusion that documentary evidence of medical

11 treatment is reasonably available because the record does

12 not support the agency’s conclusion that Lin received any

13 treatment. There is no reference to medical treatment in

14 Lin’s application, his direct testimony, or his supporting

15 evidence. The only reference to any medical treatment came

16 when the IJ questioned Lin directly. When asked by the IJ

17 if he saw a doctor, Lin said “[y]es, doctor for injury, um-

18 hum.” But when the IJ asked why Lin did not get a letter

19 from the doctor, Lin said that “the injury doctor just told

20 the person to come and take a look at me. Took a look at

21 me and then just went away.” It is unclear who “the

22 person” was or if Lin actually visited a doctor or a

4 1 hospital. Given this lack of clarity, the agency did not

2 sufficiently explain why a doctor’s affidavit or hospital

3 records were reasonably available. See 8 U.S.C.

4 § 1158(b)(1)(B)(ii); Poradisova,

.

5 The BIA also failed to assess the country conditions

6 evidence in light of Lin’s presumptively credible

7 testimony. The BIA determined that the background evidence

8 was generalized and insufficient to demonstrate that Lin

9 would be singled out for persecution, but conceded that it

10 showed raids on unregistered churches and detention of

11 leaders and missionaries. Assuming the credibility of

12 Lin’s testimony and given both the BIA’s conclusion that

13 evidence of his arrest and detention was not reasonably

14 available, and the problem discussed above with the

15 agency’s demand for medical evidence, the BIA missed a step

16 in its analysis. Given the credible testimony and the lack

17 of available corroboration, the BIA failed to explain why

18 Lin did not establish past persecution and thus why there

19 was no resulting presumption of future persecution. See 8

(b)(1) (presumption of future persecution

21 applies where applicant has established past persecution).

22

5 1 We remand for further consideration of Lin’s claims

2 either in light of the IJ’s adverse credibility determination

3 or with explanation of why Lin failed to meet his burden of

4 proof if his testimony is presumed credible.

5 For the foregoing reasons, the petition for review is

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

7 REMANDED for further proceedings consistent with this order.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10

6