18-2330 Zheng v. Barr BIA Poczter, IJ A209 127 618 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 16th day of September, two thousand twenty. 5 6 PRESENT: 7 JON O. NEWMAN,* 8 JOSEPH F. BIANCO, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 HAI QIN ZHENG, 14 Petitioner, 15 16 v. 18-2330 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead, 24 NJ. 25

* Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the panel for this matter. See 2d Cir. IOP E(b). 1 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 2 Attorney General; Paul Fiorino, 3 Senior Litigation Counsel; Andrew 4 B. Insenga, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a

9 Board of Immigration Appeals (“BIA”) decision, it is hereby

10 ORDERED, ADJUDGED, AND DECREED that the petition for review

11 is GRANTED.

12 Petitioner Hai Qin Zheng, a native and citizen of the

13 People’s Republic of China, seeks review of a July 24, 2018

14 decision of the BIA affirming a September 12, 2017 decision

15 of an Immigration Judge (“IJ”) denying Zheng’s application

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

17 Convention Against Torture (“CAT”). In re Hai Qin Zheng, No.

18 A 209 127 618 (B.I.A. July 24, 2018), aff’g No. A 209 127 618

19 (Immig. Ct. N.Y. City Sep. 12, 2017). We assume the parties’

20 familiarity with the underlying facts and procedural history.

21 Under the circumstances of this case, we have reviewed

22 the IJ’s decision as modified by the BIA, i.e., minus the

23 finding on which the BIA declined to rely. See Xue Hong Yang

24 v. U.S. Dep’t of Justice,

(2d Cir. 2005).

25 The applicable standards of review are well established. See 2 1

(b)(4)(B); Hong Fei Gao v. Sessions,

67, 76 (2d Cir. 2018) (reviewing adverse credibility

3 determination under a substantial evidence standard); Lecaj

4 v. Holder,

(2d Cir. 2010) (reviewing factual

5 findings for substantial evidence and questions of law and

6 application of law to fact de novo). “Considering the

7 totality of the circumstances, and all relevant factors, a

8 trier of fact may base a credibility determination on . . .

9 the consistency between the applicant’s or witness’s written

10 and oral statements . . . , the internal consistency of each

11 such statement, the consistency of such statements with other

12 evidence of record . . . , and any inaccuracies or falsehoods

13 in such statements, . . . or any other relevant factor.”

14

(b)(1)(B)(iii). While the agency “may rely

15 on any inconsistency or omission in making an adverse

16 credibility determination,” Xiu Xia Lin v. Mukasey,

(2d Cir. 2008), “omissions are less probative of

18 credibility than inconsistencies created by direct

19 contradictions in evidence and testimony,” Hong Fei Gao, 891

20 F.3d at 78 (internal quotation marks omitted). We have

21 concluded that remand is warranted because the agency found

3 1 Zheng not credible based entirely on omissions from her

2 written statement and her father’s letter about treatment she

3 received at a clinic following her alleged detention and a

4 police visit to her home following her departure from China.

5 First, the agency erred in relying on the omission from

6 Zheng’s father’s letter that Zheng received treatment at a

7 clinic. Id. at 79 (“Although the fact that petitioners

8 visited clinics for medical treatment may be probative of the

9 degree of harm they suffered, the omissions of these details

10 from petitioners’ initial applications did not warrant the

11 heavy weight afforded to them by the IJs and the BIA.”).

12 This omission is not sufficiently probative in this case to

13 support an adverse credibility determination because it

14 relates to a detail about the “aftermath of the alleged

15 persecution,” Zheng did not allege any serious injury or

16 extensive treatment, and the third-party omission did not

17 create any actual inconsistency. See id. at 80–81.

18 Given this error, we conclude that remand is warranted

19 because the remaining omission, by itself, does not

20 constitute substantial evidence that would support the

21 adverse credibility determination, and it is far from clear

4 1 based on the record that the same decision would be reached

2 on remand. “[W]here the IJ or the BIA has committed legal

3 error, . . . we will affirm only when remanding the case to

4 the agency would be futile—namely, a) when the IJ articulates

5 an alternative and sufficient basis for her determination; b)

6 when her reliance on the erroneous aspect of her reasoning is

7 substantially tangential to her non-erroneous findings; or c)

8 when overwhelming evidence in the record makes it clear that

9 the same decision is inevitable on remand, or, in short,

10 whenever the reviewing panel is confident that the agency

11 would reach the same result upon a reconsideration cleansed

12 of errors.” Gurung v. Barr,

(2d Cir. 2019)

13 (internal quotation marks omitted). The remaining finding—

14 that Zheng’s amended written statement and her father’s

15 letter omitted that the police visited Zheng’s family after

16 she left China—is not “overwhelming evidence” of Zheng’s lack

17 of credibility. See

While this is a fact that would

18 have bolstered Zheng’s claim, the record does not support a

19 conclusion that this was a significant event because the

20 allegation arose only in response to a direct question on

21 cross-examination, and she testified that the police simply

5 1 asked her father for her whereabouts and then left. See Hong

2 Fei Gao, 891 F.3d at 80 (An omission that comes out on cross-

3 examination is less probative because “[i]t [i]s not as though

4 [petitioners] volunteered the information on direct

5 examination in an effort to falsely buttress their claims

6 through testimony.”).

7 While the agency also ruled that Zheng failed to submit

8 reliable documentary evidence to rehabilitate her credibility

9 and a failure to corroborate may bear on credibility “because

10 the absence of corroboration in general makes an applicant

11 unable to rehabilitate testimony that has already been called

12 into question,” Biao Yang v. Gonzales,

(2d

13 Cir. 2007), the IJ tied the lack of reliable documentary

14 evidence to the omissions. Given the errors, the absence of

15 corroboration is not a basis for an adverse credibility

16 determination. See Chuilu Liu v. Holder,

, 198

17 n.5 (2d Cir. 2009) (“[W]hile a failure to corroborate can

18 suffice, without more, to support a finding that an alien has

19 not met his burden of proof, a failure to corroborate cannot,

20 without more, support an adverse credibility

21 determination.”).

6 1 Because credibility is a threshold determination and a

2 credible claim of past persecution triggers a presumption of

3 future persecution, we conclude that remand is required and

4 do not reach the agency’s alternative finding regarding

5 Zheng’s practice of Christianity in the United States. See

6

(b)(1); INS v. Bagamasbad,

, 25

7 (1976) (“As a general rule courts and agencies are not

8 required to make findings on issues the decision of which is

9 unnecessary to the results they reach.”).

10 For the foregoing reasons, the petition for review is

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

12 REMANDED for further proceedings consistent with this

13 order. All pending motions and applications are DENIED and

14 stays VACATED.

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

7