Zhang v. Barr
Zhang v. Barr
Opinion
18-3854 Zhang v. Barr BIA Hom, IJ A205 036 171 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 8th day of July, two thousand twenty. 5 6 PRESENT: 7 DENNY CHIN, 8 RICHARD J. SULLIVAN, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 LIANSHA ZHANG, 14 Petitioner, 15 16 v. 18-3854 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: H. Danny Kao, Kao & Associates PC 24 Flushing, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Jessica E. 28 Burns, Senior Litigation Counsel; 29 Rosanne M. Perry, Trial Attorney, 30 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is GRANTED.
8 Petitioner Liansha Zhang, a native and citizen of the
9 People’s Republic of China, seeks review of a November 29,
10 2018, decision of the BIA affirming an October 20, 2017,
11 decision of an Immigration Judge (“IJ”) denying her
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”). In re Liansha
14 Zhang, No. A205 036 171 (B.I.A. Nov. 29, 2018), aff’g No.
15 A205 036 171 (Immig. Ct. N.Y.C. Oct. 20, 2017). We assume
16 the parties’ familiarity with the underlying facts and
17 procedural history.
18 Under the circumstances of this case, the Court reviews
19 the IJ’s decision as modified by the BIA, i.e., minus the
20 IJ’s finding that the BIA declined to rely on. See Xue Hong
21 Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 522(2d Cir.
22 2005). The applicable standards of review are well
23 established. See
8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
24 Sessions,
891 F.3d 67, 76(2d Cir. 2018).
2 1 Adverse Credibility Determination
2 “Considering the totality of the circumstances, and all
3 relevant factors, a trier of fact may base a credibility
4 determination on . . . the consistency between the applicant’s
5 or witness’s written and oral statements . . . , [and] the
6 internal consistency of each such statement . . . without
7 regard to whether an inconsistency, inaccuracy, or falsehood
8 goes to the heart of the applicant’s claim . . . .” 8 U.S.C.
9 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 163–64 (2d Cir. 2008). The agency erred in finding
11 Zhang not credible as to her claims that Chinese family
12 planning officials forced her to terminate pregnancies in
13 1987 and 1991, and that the police detained and beat her
14 because she complained about being fired from her government
15 job after a workplace injury.
16 The agency erred in finding Zhang’s testimony that she
17 received treatment for her workplace injury at only one
18 hospital inconsistent with her submission of medical
19 certificates from two hospitals. As she testified, the later
20 certificate does not state that she received treatment.
21 Rather, it indicates that it was obtained months after
22 treatment for purposes of certifying that she was disabled
3 1 due to a workplace injury. Further, the agency erred in
2 relying on omissions from Zhang’s asylum application of facts
3 that were “supplementary, not contradictory” to her
4 testimony. Hong Fei Gao,
891 F.3d at 79. Accordingly,
5 because each of the agency’s cited bases for its conclusion
6 that Zhang was not credible was either erroneous or
7 insufficient to support such a conclusion when considering
8 the totality of the circumstances, the agency erred in denying
9 relief on that basis. See
8 U.S.C. § 1158(b)(1)(B)(iii);
10 Hong Fei Gao,
891 F.3d at 82.
11 Burden Finding
12 Although the agency made an alternate burden finding,
13 that finding is also infected with error that requires remand.
14 “The testimony of the applicant may be sufficient to sustain
15 the applicant’s burden without corroboration, but only if the
16 applicant satisfies the trier of fact that the applicant’s
17 testimony is credible, is persuasive, and refers to specific
18 facts sufficient to demonstrate that the applicant is a
19 refugee.”
8 U.S.C. § 1158(b)(1)(B)(ii); see also
id.20 § 1231(b)(3)(C); Wei Sun v. Sessions,
883 F.3d 23, 28(2d
21 Cir. 2018). “In determining whether the applicant has met
22 the applicant’s burden, the trier of fact may weigh the
4 1 credible testimony along with other evidence of record.
2 Where the trier of fact determines that the applicant should
3 provide evidence that corroborates otherwise credible
4 testimony, such evidence must be provided unless the
5 applicant does not have the evidence and cannot reasonably
6 obtain the evidence.”
8 U.S.C. § 1158(b)(1)(B)(ii); see also
7
id.§ 1231(b)(3)(C). The agency’s finding that Zhang failed
8 to adequately corroborate her claims is not supported by the
9 record.
10 The IJ erred in finding that Zhang failed to submit
11 documentary evidence of her pregnancies when she submitted
12 two abortion certificates issued on the dates she claimed to
13 have been forced to terminate those pregnancies. The IJ also
14 found that Zhang submitted evidence that she had obtained
15 three voluntary abortions before her fourth allegedly forced
16 abortion and that she had terminated her last pregnancy only
17 after being diagnosed with uterine cancer; but Zhang only
18 testified and presented evidence of two abortions and she did
19 not allege, much less document, two additional abortions or
20 a cancer diagnosis. Further, the IJ erred in finding that
21 Zhang failed to provide any evidence of her factory employment
22 given that her household registry lists her as a factory
5 1 worker. Although the IJ correctly identified other missing
2 evidence—corroboration that she had an IUD removed before
3 becoming pregnant, affidavits from her ex-husband and her
4 daughter, or evidence that she complained about being
5 terminated from her job—we cannot confidently predict that
6 the agency would reach the same result absent the egregiously
7 erroneous findings regarding the other evidence in the record
8 and the central facts of her claim. See Xiao Ji Chen v. U.S.
9 Dep’t of Justice,
471 F.3d 315, 339(2d Cir. 2006) (providing
10 that remand is futile when Court “can confidently predict
11 that the agency would reach the same decision absent the
12 errors that were made” (internal quotation marks omitted)).
13 For the foregoing reasons, the petition for review is
14 GRANTED. All pending motions and applications are DENIED and
15 stays VACATED.
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court
6
Reference
- Status
- Unpublished