19-715-ag Chen v. Garland

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2022 5 6 (Submitted: November 18, 2022 Decided: July 25, 2023) 7 8 Docket No. 19-715-ag 9 10 _____________________________________ 11 12 ZHI BO CHEN, AKA ZHIBO CHEN, AKA CHEN ZHIBO, AKA BO LIN, 13 14 Petitioner, 15 16 v. 17 18 MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, 19 20 Respondent. 21 22 _____________________________________ 23 Before: 24 25 JACOBS, LOHIER, and NATHAN, Circuit Judges. 26 27 Zhi Bo Chen petitions for review of an order of the Board of Immigration 28 Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his 29 applications for asylum, withholding of removal, and relief under the 30 Convention Against Torture, and ordered him removed from the United States. 31 The IJ’s decision was based, in part, on its finding that Chen was not credible. 32 Because certain reasons for that credibility finding were erroneous, and because 33 we cannot be confident that the IJ would have made the same determination 34 absent those errors, Chen’s petition for review is GRANTED, the BIA’s decision 35 is VACATED, and the case is REMANDED to the BIA for further proceedings 36 consistent with this opinion. 1 2 Gary J. Yerman, The Yerman Group, LLC, New York, 3 NY, for Petitioner Zhi Bo Chen, AKA Zhibo Chen, AKA 4 Chen Zhibo, AKA Bo Lin 5 6 Jennifer A. Bowen, Trial Attorney (Joseph H. Hunt, 7 Assistant Attorney General, Anthony C. Payne, 8 Assistant Director, on the brief), Office of Immigration 9 Litigation, Civil Division, United States Department of 10 Justice, Washington, D.C., for Respondent Merrick B. 11 Garland, United States Attorney General 12 13 LOHIER, Circuit Judge:

14 Petitioner Zhi Bo Chen petitions for review of a March 8, 2019 order of the

15 Board of Immigration Appeals (BIA) affirming a November 20, 2017 decision of

16 an Immigration Judge (IJ) that denied his applications for asylum, withholding of

17 removal, and relief under the Convention Against Torture (CAT). The IJ

18 determined that Chen was not credible based on inconsistencies in his testimony

19 during his removal hearing and omissions in his original applications for asylum

20 and withholding of removal on Form I-589, which asks applicants to provide

21 information about their personal and family backgrounds and details about the

22 harm or mistreatment that they experienced in their home country. We conclude

23 that the IJ misidentified part of Chen’s testimony as inconsistent, improperly

24 relied on trivial inconsistencies, and misconstrued as an omission a part of

2 1 Chen’s testimony that comported with his Form I-589 asylum statement.

2 Because we are not confident that the IJ would have made the same adverse

3 credibility determination absent those errors, Chen’s petition for review is

4 GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to

5 the BIA for further proceedings consistent with this opinion.

6 BACKGROUND

7 On November 20, 2017, Chen, a native and citizen of China, testified as

8 follows before the IJ in support of his applications for asylum, withholding of

9 removal, and protection under the CAT. Considered an illegal cult, Falun Gong

10 is banned by the Chinese government. Chen began secretly practicing Falun

11 Gong in China in 2009. In September 2010 police officers came to Chen’s home,

12 arrested him for practicing Falun Gong, and took him to a police station. At the

13 station the officers locked him in a dark room and then interrogated and beat

14 him. A week later, the officers released Chen after instructing him to report back

15 to the police station every month and to avoid Falun Gong–related activities.

16 When Chen returned to the police station in October 2010 as instructed, however,

17 police officers again detained, interrogated, and beat him. Fearing further

18 persecution in China, Chen fled to the United States, where he continues to

3 1 practice Falun Gong. Even after Chen fled, however, Chinese police officers

2 continued to search for him at his mother’s home.

3 In support of his applications for asylum, withholding of removal, and

4 CAT relief, Chen submitted, among other documents, a Form I-589 and affidavits

5 from his wife and cousin. Chen and his wife also testified before the IJ at Chen’s

6 removal hearing.

7 After the hearing, the IJ pretermitted Chen’s asylum application because it

8 determined that Chen had not demonstrated by clear and convincing evidence

9 that it was timely filed. The IJ also denied Chen’s applications for withholding of

10 removal and relief under the CAT because it determined that Chen was not

11 credible. The IJ based its adverse credibility finding on inconsistencies between

12 his Form I-589 and the hearing testimony, and the fact that Chen’s testimony

13 contained information that he had omitted from his Form I-589.

14 After the IJ ordered Chen removed from the United States, Chen appealed

15 to the BIA, which affirmed the IJ’s adverse credibility finding and dismissed his

16 appeal.

17 This petition followed.

4 1 DISCUSSION

2 I. Applicable Law

3 “Where, as here, the BIA’s decision affirms the IJ’s adverse credibility

4 finding without rejecting any portion of the IJ’s decision, but emphasizing

5 particular aspects of the reasoning, we review both decisions.” Xiao Xing Ni v.

6 Gonzales,

(2d Cir. 2007). “We review the agency’s findings,

7 including credibility findings, for substantial evidence, treating the agency’s

8 findings as conclusive unless any reasonable adjudicator would be compelled to

9 conclude to the contrary.”

(quotation marks omitted).

10 Chen applied for asylum, withholding of removal, and relief under the

11 CAT. “To qualify for asylum,” Chen was required to “show that he is a

12 ‘refugee’ — that is, he is ‘unable or unwilling to return to [his home country]’” of

13 nationality “‘because of [past] persecution or a well-founded fear of [future]

14 persecution on account of race, religion, nationality, membership in a particular

15 social group, or political opinion.’” Pinel-Gomez v. Garland,

, 528

16 (2d Cir. 2022) (alterations in original) (quoting

(a)(42)(A);

17 1158(b)(1)(B)(i)). To be eligible for withholding of removal, Chen must satisfy a

18 stricter standard—one that requires “a clear probability of future persecution on

5 1 account of a protected characteristic.” Hong Fei Gao v. Sessions,

, 76

2 (2d Cir. 2018) (quotation marks omitted). To qualify for CAT protection, Chen

3 must demonstrate that “it is ‘more likely than not that he . . . would be tortured if

4 removed to the proposed country of removal,’” though he need not draw a

5 “nexus between the alleged torture and [his] membership in a protected group.”

6 Garcia-Aranda v. Garland,

(2d Cir. 2022) (quoting 8 C.F.R.

7 § 1208.16(c)(2)).

8 “An applicant can generally prove that he is eligible for any of asylum,

9 withholding of removal, or CAT relief based on nothing more than his own

10 testimony, so long as that testimony is credible.” Liang v. Garland,

,

11 113 (2d Cir. 2021). Conversely, where, as here, “the same factual predicate

12 underlies a petitioner’s claims for asylum, withholding of removal, and

13 protection under the CAT, an adverse credibility determination forecloses all

14 three forms of relief.” Hong Fei Gao,

.

15 “[W]e afford particular deference to the IJ’s adverse credibility

16 determination,” Singh v. Garland,

(2d Cir. 2021) (quotation

17 marks omitted), which may be based on “any inconsistencies, inaccuracies, or

18 falsehoods, ‘without regard to whether [the] inconsistency, inaccuracy, or

6 1 falsehood goes to the heart of the applicant’s claim, or any other relevant factor,’”

2

at 426–27 (quoting

(b)(1)(B)(iii)). Under the REAL ID Act,

3 which applies to Chen’s petition, an IJ must “evaluate each inconsistency or

4 omission in light of ‘the totality of the circumstances.’’’ Hong Fei Gao,

at 79 (quoting

(b)(1)(B)(iii)). Thus, an IJ can consider the

6 applicant’s demeanor, the inherent plausibility of the account, the internal

7 consistency of the applicant’s statements, the consistency between those

8 statements and other evidence in the record, and any inaccuracies or falsehoods

9 in the statements. See Liang,

; see also

(b)(1)(B).

10 In making an adverse credibility finding, an IJ may also rely on the

11 omission of important information from an applicant’s asylum statement in a

12 Form I-589. We have cautioned, however, that ‘‘omissions are less probative of

13 credibility than inconsistencies created by direct contradictions in evidence and

14 testimony.” Singh,

(quotation marks omitted). The probative

15 value of a particular omission depends on “whether [the omitted] facts are ones

16 that a credible petitioner would reasonably have been expected to disclose under

17 the relevant circumstances.” Hong Fei Gao,

. In part for this

7 1 reason, “petitioners are not required to list every incident of persecution on their

2 I-589 statement.” Liang,

(quotation marks omitted).

3 Although an IJ may rely on omissions and inconsistencies in assessing an

4 applicant’s credibility, not all omissions and inconsistencies deserve the same

5 weight. “A trivial inconsistency or omission that has no tendency to suggest a

6 petitioner fabricated his or her claim will not support an adverse credibility

7 determination.” Hong Fei Gao,

; see Singh,

8 (explaining that an adverse credibility finding cannot be based on “an

9 inconsistency so trivial and inconsequential that it has little or no tendency to

10 support a reasonable inference that the petitioner has been untruthful”). As we

11 explained in Singh, “[o]missions are undoubtedly probative of untruthfulness in

12 circumstances where the omission renders what is stated untrue or deceitful, but

13 not necessarily so where the omission constitutes nothing more than non-

14 inclusion of an inessential fact.”

. And when an applicant’s

15 testimony includes information that does not appear in his asylum statement but

16 that supplements and is consistent with the statement, that information does not

17 qualify as a material omission on which an IJ can rely in making an adverse

8 1 credibility determination. See Hong Fei Gao,

; Gurung v. Barr, 929

, 61 n.1 (2d Cir. 2019).

3 As we further explained in Singh, an IJ’s adverse credibility determination

4 may sometimes rely on “multiple bases, some of which are erroneous and the

5 remainder of which . . . satisfy the substantial evidence requirement.”

427. When this happens, “several different dispositions are possible.”

7 “Where the remaining grounds . . . are sufficiently probative of untruthfulness,”

8 we may “simply affirm the [agency’s] ruling based on confidence that [it] would

9 adhere to [its] adverse credibility finding notwithstanding disqualification of

10 some of its asserted bases.”

“[W]here it is clear that the agency would not

11 adhere to the adverse credibility finding absent the errors identified on review,”

12 then we will set aside the agency’s ruling.

(emphasis added). And where we

13 “cannot confidently predict whether the agency would adhere to its credibility

14 determination absent its errors,” then we “remand for the agency to reconsider

15 the question.”

16 II. Analysis

17 Here, the IJ determined that Chen was not credible both because “his

18 written asylum application statement” in his Form I-589 “omit[ted] any mention

9 1 of the police hitting him in the face and leg when he reported to the police station

2 in October 2010, stating only that he was humiliated and insulted,” and because

3 Chen’s testimony concerning his wife and cousin was internally inconsistent and

4 contradicted by other evidence adduced at the removal hearing. Cert. Admin.

5 Rec. 3. Relying on these inconsistencies and omissions, the IJ determined that

6 Chen was not credible and ordered him removed. The BIA affirmed the IJ’s

7 order of removal on some of the same credibility grounds. On petition for

8 review, Chen challenges the agency’s denial of withholding of removal and CAT

9 relief based on those findings. 1

10 We conclude that the agency improperly relied on a number of trivial

11 omissions and inconsistencies to find that Chen was not credible. First, the

12 details Chen provided in his testimony about his encounter with the police at the

13 police station were also referenced in his prior asylum statement. And even if

14 they were not, they would merely supplement rather than contradict the asylum

15 statement, and would thus not alone support an adverse credibility

1 Chen also argues that his asylum application was timely filed. Because (1) an adverse credibility determination would foreclose the relief that Chen seeks, see Hong Fei Gao,

, and the IJ, after reconsidering the question, might still conclude that Chen is not credible, see Singh,

, and (2) Chen did not raise his timeliness argument before the BIA, we need not address whether Chen’s asylum application was timely filed, see Steevenez v. Gonzales,

(2d Cir. 2007). 10 1 determination. Second, most if not all of the inconsistencies in Chen’s

2 description of his relationship with his wife were trivial. Third, although any

3 inconsistencies relating to Chen’s interactions with his cousin may be non-trivial,

4 we cannot “confidently predict” that the IJ would have made the same adverse

5 credibility determination based on those inconsistencies alone. We therefore

6 vacate and remand to the agency to make this determination in the first instance.

7 See Singh,

.

8 A. The Police Station

9 We first consider the IJ’s analysis of the inconsistencies and omissions

10 arising from Chen’s testimony that he was beaten by officials at the police

11 station. During his removal hearing, Chen testified that the police officers kicked

12 him in the leg and hit his face when he reported back to the police station in

13 October 2010. Chen’s asylum statement, by contrast, asserted only that the police

14 officers “humiliated and insulted” him when he reported back, without

15 mentioning that officers also kicked and hit him. Cert. Admin. Rec. 282 (“[E]ach

16 time I went to the [police] bureau, they humiliated and insulted me.”). The IJ

17 reasoned that this omission undermined Chen’s credibility. In the IJ’s view,

18 “humiliated and insulted” and “kicked and hit” describe significantly different

11 1 conduct, and it is “reasonable to expect” that someone who was kicked and hit

2 would specifically describe that conduct in their asylum statement. Id. at 48.

3 The IJ erred when it based its adverse credibility finding in part on the

4 absence in Chen’s asylum statement of a specific reference to being kicked and

5 hit by police officers in October 2010. In portraying the failure to include that

6 information as a material omission that undermined Chen’s credibility, the IJ

7 appears to have overlooked that throughout his removal hearing Chen equated

8 being “hit” by the police with being “humiliated.” For example, when asked

9 why his asylum statement specified that officers “humiliated and insulted” him

10 at the bureau, Chen answered, “I was locked up there. And I was interrogated

11 six times. And each time they interrogated [me], they would beat me.” Id. at 72.

12 Chen also explained that his asylum statement did not specifically mention that

13 he was beaten in October 2010 because “[t]hey kept on humiliating me.” Id. at

14 103. Likewise, when the attorney for the Government asked Chen whether he

15 had been beaten in October 2010, Chen answered, “Yes . . . [t]hey kept on

16 humiliating me,” and then physically demonstrated how officers hit his face. Id.

17 at 107. Chen’s asylum statement therefore does include a reference to the

18 October 2010 beating.

12 1 In any event, even if the IJ had correctly interpreted Chen’s asylum

2 statement to not reference the beating, applicants are not obligated to list every

3 example or incident of persecution in their asylum statements. See Liang, 10

4 F.4th at 114. Indeed, we have rejected adverse credibility determinations based

5 on omissions from applications that were far more substantial than the omissions

6 in this case. In Pavlova v. INS,

(2d Cir. 2006), for example, Pavlova, a

7 native and citizen of the Russian Federation, claimed in her application for

8 asylum that she was subjected to violence by members of a Russian nationalist

9 group (RNU) because of her Baptist faith,

. Pavlova’s asylum statement

10 “described her persecution in general terms,” but omitted the fact that she had

11 been raped and that some of her fellow Baptists had been killed.

.

12 Specifically, Pavlova’s statement provided: “RNU members persecute me for my

13 religion. They humiliated and beat me repeatedly. . . . I am scared to return to

14 Russia because [RNU] people will kill me there.”

Based in part on Pavlova’s

15 omission of the rape and killings, the IJ in that case determined that Pavlova was

16 not credible and denied her applications for asylum, withholding of removal,

17 and CAT relief. See

. The BIA summarily affirmed.

We concluded

18 that the IJ “should not have faulted” Pavlova for omitting specific details from

13 1 her asylum statement that were later elicited during her direct testimony at a

2 removal hearing.

.

3 Even assuming the IJ in the case before us correctly determined that the

4 asylum statement did not reference the October 2010 beating, we would be hard-

5 pressed to distinguish Chen’s case from Pavlova. We therefore conclude that the

6 IJ erred in resting its adverse credibility determination in part on Chen’s

7 purported omission from his asylum statement of supplementary, non-

8 contradictory details about being kicked and hit by police officers. See id.; see

9 also Hong Fei Gao,

.

10 The IJ also determined that part of Chen’s testimony in which he

11 recounted his detention by the police was internally inconsistent in two ways.

12 First, although Chen initially testified that police officers “hit” his face, the IJ

13 observed that Chen later testified that the officers “pushed” his face, Cert.

14 Admin. Rec. 48, and then “again changed his testimony, stating that the police

15 [officers] kept on shaking his head,”

(emphasis added). Second, the IJ noted,

16 Chen testified that he was “interrogated six times and hit each time he was

17 interrogated” during his initial detention in September 2010, but he later testified

18 that he was hit only once in September and once in October.

14 1 The IJ erred in concluding that Chen’s testimony about the beatings was

2 internally inconsistent because he variously used the words “hit,” “push,” and

3 “shake.” At the outset, we note that Chen never actually testified that police

4 officers “pushed” him. Rather, when Chen began physically demonstrating the

5 beatings while testifying, Chen’s interpreter supplied the word “push” to

6 describe Chen’s actions for the record. See

. And even as he

7 demonstrated the police’s conduct by pushing his hand into his face, Chen

8 explained that “you could call it being hit.”

. Moreover, we see no

9 material inconsistency between Chen’s use of the words “hit” and “shake” or in

10 his demonstration of how police officers both hit his face and shook his head

11 while beating him. In our view, the difference between “hit” and “shake” as

12 Chen used those words during his removal hearing amounts to a “trivial

13 difference[] in word choices” and should not have served as a basis for the IJ’s

14 adverse credibility finding, especially since Chin consistently demonstrated the

15 action he was trying to describe. Gurung, 929 F.3d at 61.

16 Lastly, as for the number of times that police interrogated and hit him

17 during his detention, Chen maintained that the police hit him several times in

18 September 2010. At the conclusion of Chen’s hearing testimony, however,

15 1 Chen’s lawyer asked the following somewhat confusing question: “Now, you

2 said that you were beaten by — or hit by the police only on September 15th and

3 when you reported on October 15th. Were you hit by the police any other time

4 during your detention, besides December [sic] 15th?” Cert. Admin. Rec. 124.

5 Chen answered “No.” Id. Because there is no other relevant reference to Chen

6 being detained by police in December 2010, we understand the reference to

7 “December” to be a transcription error. But the IJ may have in any event viewed

8 Chen’s response to such a confusing question to mean that Chen was hit only

9 once in September 2010 and once in October 2010. That may not be an entirely

10 fair interpretation of Chen’s testimony, but we acknowledge that, under that

11 interpretation, Chen’s answer to the question conflicts with his earlier testimony

12 that he was beaten several times during his detention in September 2010.

13 We therefore conclude that the IJ’s adverse credibility determination was

14 erroneous insofar as it relied on omissions from Chen’s asylum statement and

15 Chen’s alternative uses of the words “hit” and “shake.” Because the remaining

16 possible inconsistency regarding the police beatings — that is, the number of

17 times that Chen was beaten — is potentially non-trivial, we vacate and remand

18 to the agency to reconsider its credibility determination under the “totality of the

16 1 circumstances” without relying on the errors (including the apparent

2 transcription error) identified above. See Liang,

.

3 B. Chen’s Relationship with His Wife

4 As additional support for the adverse credibility finding in this case, the IJ

5 also identified three inconsistencies concerning Chen’s relationship with his wife.

6 First, Chen initially testified that he always practices Falun Gong with his wife,

7 but later acknowledged that he sometimes practices without her. Second, while

8 Chen testified that he and his wife had practiced Falun Gong together twice in

9 the month leading up to his hearing, his wife testified that they had practiced

10 together three times that month. And third, although Chen explained that he

11 and his wife first met when he approached her to ask her questions about Falun

12 Gong, she insisted that she was the one who initially approached him as part of

13 her Falun Gong advocacy. These “de minimis, non-material inconsistenc[ies],”

14 Pavlova,

, on matters wholly unrelated to Chen’s alleged

15 persecution in China have “little or no tendency to support a reasonable

16 inference that [he] has been untruthful,” Singh,

. The IJ thus erred

17 in relying on these trivial inconsistencies to justify its adverse credibility

18 determination.

17 1 C. Chen’s Phone Call with His Cousin

2 Finally, the IJ pointed to Chen’s testimony about his phone call with his

3 cousin as additional support for the adverse credibility determination. Chen

4 initially testified that he called his cousin in August or September 2010 to

5 coordinate his escape to the United States. He confirmed that he placed the call

6 after he was arrested. When asked how he could have called his cousin in

7 August if he was not arrested until September, Chen repeated that he called his

8 cousin in August or September. Later during his testimony, however, Chen

9 claimed that he called his cousin in October 2010. And still later, Chen suggested

10 that he called his cousin in August or September 2010 not because he had been

11 arrested and beaten, but because he “had heard people . . . say that doing Falun

12 Gong in China could be reported on by others.” Cert. Admin. Rec. 124. Chen

13 also stated at one point in his hearing testimony that he “phon[ed]” his cousin to

14 tell her he was coming to the United States, id. at 85, and at other points that he

15 spoke to his cousin only after his cousin called his mother’s house, id. at 102-03,

16 120-23; see also id. at 47.

17 The IJ did not err in considering these non-trivial inconsistencies in

18 assessing Chen’s credibility. As noted, however, the IJ’s adverse credibility

18 1 determination rested on an assessment of the totality of the circumstances.

2 Because it is not clear to us that the same decision would have been reached in

3 the absence of the errors we have identified above, we decline to deny Chen’s

4 petition based on this non-trivial inconsistency alone. We therefore vacate and

5 remand to the BIA to reconsider them under the “totality of the circumstances.”

6 Liang,

.

7 * * *

8 For the reasons stated, we conclude that a number of the bases for the IJ’s

9 credibility determination were erroneous. Because we cannot “confidently

10 predict” that the IJ would have made the same adverse credibility determination

11 based on the inconsistencies regarding the September 2010 beatings at the police

12 station and Chen’s call with his cousin, we vacate and remand to the BIA. Singh,

13

.

14 CONCLUSION

15 For the foregoing reasons, the petition for review is GRANTED, the BIA’s

16 decision is VACATED, and the case is REMANDED to the BIA for further

17 proceedings consistent with this opinion. All pending motions and applications

18 are DENIED and stays VACATED.

19