17-603 Jiang v. Whitaker BIA Poczter, IJ A206 682 861 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 3rd day of January, two thousand nineteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSÉ A. CABRANES, 9 ROBERT D. SACK, 10 Circuit Judges. 11 _____________________________________ 12 13 DIAN YU JIANG, 14 Petitioner, 15 16 v. 17-603 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Vlad Kuzmin, Kuzmin & Associates, 24 P.C., New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Principal Deputy 27 Assistant Attorney General; John 28 S. Hogan, Assistant Director; Todd 29 J. Cochran, Trial Attorney; Jamie 30 Robertson, Law Clerk, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, 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, and the case is REMANDED.

5 Petitioner Dian Yu Jiang, a native and citizen of the

6 People’s Republic of China, seeks review of a February 2,

7 2017, decision of the BIA affirming a March 17, 2016, decision

8 of an Immigration Judge (“IJ”) denying Jiang’s application

9 for asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Dian Yu Jiang, No.

11 A 206 682 861 (B.I.A. Feb. 2, 2017), aff’g No. A 206 682 861

12 (Immig. Ct. N.Y. City Mar. 17, 2016). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we have reviewed

16 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.

17 Gonzales,

(2d Cir. 2005). We review adverse

18 credibility determinations under a substantial evidence

19 standard. See

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

20 Mukasey,

(2d Cir. 2008). The governing

21 REAL ID Act credibility standard provides as follows:

2 1 Considering the totality of the circumstances, and 2 all relevant factors, a trier of fact may base a 3 credibility determination on the demeanor, candor, 4 or responsiveness of the applicant or witness,. . . 5 the consistency between the applicant’s or witness’s 6 written and oral statements . . . , the internal 7 consistency of each such statement, the consistency 8 of such statements with other evidence of record . 9 . . , and any inaccuracies or falsehoods in such 10 statements, . . . or any other relevant factor. 11 12

(b)(1)(B)(iii). “We defer . . . to an IJ’s

13 credibility determination unless . . . it is plain that no

14 reasonable fact-finder could make such an adverse credibility

15 ruling.” Xiu Xia Lin,

.

16 The IJ concluded that Jiang’s testimony was internally

17 inconsistent and inconsistent with his written statement as

18 to the dates of his alleged detention and release. Petitioner

19 testified at his May 10, 2016, hearing, as follows. He first

20 went to a Christian church in China on Jan. 12, 2011, and

21 attended weekly services there the following two weeks. See

22 Certified Record on Appeal (“CAR”) 82. He was arrested at the

23 church on January 26 (which is two weeks after January 12).

24 See id. at 83. He was detained for 20 days during which time

25 he was severely beaten until he confessed to illegally

26 attending church services. See CAR 87, 231. His father secured

3 1 his release by bringing bail money on February 16 (which is

2 21 days after January 26. See CAR 83.

3 The IJ’s finding of inconsistent testimony is based on

4 the following:

5 Q. When were you detained? 6 A. It was on January 12. 7 Q. Okay. So when was your bail set? 8 A. That day, it was February 16. No, March 16. 9 Q. Can you remember when you were detained again? 10 . . . 11 Oh, February 16th. That’s right. February 16. 12 13 CAR 26.

14 The IJ focused on (1) the answer “January 12” as the date

15 the Petitioner was detained, after he had testified that the

16 detention began with his arrest on July 26, the date of the

17 third church service after the first service on January 12,

18 and (2) the shift of the bail date from February 16 to March

19 16 and back to February 16. CAR 87

20 Although non-trivial inconsistencies can provide a basis

21 for doubting a witness’s credibility, this record leaves us,

22 on appellate review, with insufficient confidence that the

23 Petitioner was deliberately altering his answers. In view of

24 the Petitioner’s repeated testimony that he first attended

25 church services on January 12 and was arrested at the third

26 service on January 26, it appears far more likely that there 4 1 was a misunderstanding, perhaps through translation, as to

2 what was being asked. For example, the Petitioner was asked

3 to “remember when you were detained again,” in view of the

4 fact that he never testified to a second detention. We cannot

5 be sure that the “January 12” answer was given to a question

6 the Petitioner understood to ask about the date of detention,

7 rather than the date he had repeatedly given as the date when

8 he started attending church services, a date that corresponds

9 to the interval between the start of such attendance and the

10 detention. Significantly, neither his own counsel nor the

11 Government counsel picked up on the isolated “January 12”

12 answer and afforded the Petitioner an opportunity to explain

13 what event he understood he was being asked about.

14 The momentary variation of the bail date from February

15 16 to March 16 and immediately back to February 16, which was

16 stated twice, is of slight, if any, significance, and also

17 was not explored by either counsel.

18 Furthermore, the IJ simply misread or misunderstood the

19 record in concluding that the Petitioner omitted from his

20 written statement the fact, as he testified, that his

21 interrogations began on the second day of his detention. See CAR

22 44. The Petitioner testified that he was beaten the first day of 5 1 this detention, but not interrogated until the next day, which was

2 the second day of detention. See CAR 96. His statement reported

3 that he was arrested on January 26 and interrogated for three days

4 until he confessed on January 29. See CAR 230, ¶ 6. That would

5 place the first day of interrogation at January 27, which was the

6 second day of detention. Thus, there was no omission from the

7 statement concerning interrogation beginning on the second day of

8 detention and no inconsistency between the Petitioner’s statement

9 and his testimony on that point.

10 We are sympathetic to the task confronting an IJ obliged to

11 hear a series of asylum applications in a single day and then

12 produce findings, usually at the end of each hearing.

13 Nevertheless, in this case, we conclude that the record lacks

14 the clarity required to permit us to affirm a finding of

15 inconsistencies that support a finding of lack of

16 credibility, especially where the record reveals one clear

17 instance of an alleged inconsistency that does not exist.

18 For the foregoing reasons, the petition for review is

19 GRANTED, and the case is REMANDED for a new hearing.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk

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