Zheng v. Sessions ( 2018 )

16-2615
Zheng v. Sessions
BIA
Christensen, IJ
A200 914 877
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 25th day of May, two thousand eighteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 CHANGJING ZHENG,
14 Petitioner,
15
16 v. 16-2615
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Melissa Neiman-
27 Kelting, Assistant Director;
28 Christopher Buchanan, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 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 Changjing Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of a July 12,
7 2016, decision of the BIA affirming a January 28, 2015,
8 decision of an Immigration Judge (“IJ”) denying Zheng’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re
11 Changjing Zheng, No. A200 914 877 (B.I.A. July 12, 2016),
12 aff’g No. A200 914 877 (Immig. Ct. N.Y. City Jan. 28,
13 2015). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as modified by the BIA (i.e., excluding the
17 alternative burden findings, which the BIA declined to
18 reach). See Xue Hong Yang v. U.S. Dep’t of Justice, 426
19 F.3d 520, 522 (2d Cir. 2005). The applicable standards of
20 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
21 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
22 2008).
2
1 The governing REAL ID Act credibility standard provides
2 that the agency must “[c]onsider[] the totality of the
3 circumstances,” and may base a credibility finding on an
4 applicant’s “demeanor, candor, or responsiveness, . . .
5 [the] plausibility” of his account, and inconsistencies or
6 omissions in his or his witness’s statements, “without
7 regard to whether” they go “to the heart of the applicant’s
8 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
9 F.3d at 163-64, 166-67. “[E]ven where an IJ relies on
10 discrepancies or lacunae that, if taken separately, concern
11 matters collateral or ancillary to the claim, the
12 cumulative effect may nevertheless be deemed consequential
13 by the fact-finder.” Tu Lin v. Gonzales, 446 F.3d 395, 402
14 (2d Cir. 2006) (internal quotation marks and citation
15 omitted). However, “where the perceived incongruities in
16 an asylum applicant’s testimony are not plainly obvious, an
17 IJ cannot rely on them to support an adverse credibility
18 ruling without first identifying the alleged
19 inconsistencies for the applicant and giving the applicant
20 an opportunity to address them.” Ming Shi Xue v. BIA, 439
21 F.3d 111, 121 (2d Cir. 2006). A “contradiction is obvious
22 . . . where the relevant inconsistency is sufficiently
3
1 conspicuous as to be evident, and where it is central
2 enough to the applicant’s claim that it could not have been
3 reasonably overlooked by the parties or the IJ . . . .”
4 Id. at 120. “[C]ontradictions . . . are not
5 obvious . . . where they are not premised on ‘dramatically
6 different’ accounts of the alleged persecution.” Id. at
7 121.
8 As an initial matter, although our jurisdiction to
9 review the agency’s pretermission of asylum on timeliness
10 grounds is limited to “constitutional claims or questions
11 of law,” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D), Zheng’s
12 argument that the IJ failed to solicit explanations for the
13 inconsistencies and omissions underlying the credibility
14 determination raises a question of law, see Ming Shi Xue,
15 439 F.3d at 119. We therefore have jurisdiction to review
16 Zheng’s argument in the context of both the credibility-
17 based pretermission of asylum and the credibility-based
18 denial of withholding of removal and CAT relief. Neither
19 this Court nor the agency has explicitly addressed the
20 question raised by the discrepancies between Zheng’s and
21 his witnesses’ testimony—how, if at all, does an IJ’s
22 obligation to confront an applicant with putative
4
1 inconsistencies change when those inconsistencies arise
2 from subsequent witness testimony. Although this case
3 presents a close question, for the reasons that follow, we
4 conclude that the discrepancies were not sufficiently
5 dramatic as to fall outside the universe of discrepancies
6 for which explanations should be sought. On remand, the
7 agency is directed to address the IJ’s responsibility to
8 solicit explanations for putative inconsistencies arising
9 from subsequent witness testimony, particularly where, as
10 here, the applicant was represented by counsel.
11 First, the IJ erred in making its credibility
12 determination by relying on the inconsistencies between
13 Zheng and his one-year witness’s testimony without first
14 confronting Zheng with the inconsistencies; the finding was
15 “not premised on ‘dramatically different’ accounts of the
16 alleged persecution.” Ming Shi Xue, 439 F.3d at 121.
17 Indeed, the IJ acknowledged that these discrepancies did
18 not go to the heart of Zheng’s claim. Zheng testified that
19 he attended the one-year witness’s grandmother’s funeral in
20 China in August 2009; that there was a 500-person banquet
21 around noon, a funeral service about an hour later, and
22 then the burial; and that he sat with the one-year
5
1 witness’s cousin at the banquet. His one-year witness
2 testified, however, that the funeral service was early in
3 the morning and that she was “[n]ot too clear” about
4 whether she recognized anyone at Zheng’s banquet table.
5 Certified Administrative Record (“CAR”) at 122-23. These
6 inconsistencies concern an event unrelated to Zheng’s
7 allegations of past or future harm; they more closely
8 resemble discrepancies that we have found to be
9 nondramatic, examples of which are set forth in the margin.1
10 Although Zheng’s counsel declined an opportunity for
11 redirect of the one-year witness and did not ask to recall
12 Zheng, the one-year witness was not confronted with Zheng’s
1 See, e.g., Ming Shi Xue, 439 F.3d at 126-27 (finding the following to
be nondramatic: applicant’s assertion that he wanted a second child to
help with farm work and subsequent testimony that another family raised
his second child; applicant’s testimony that his wife gave birth while
in hiding, but that she was subject to IUD checkups and returned to work
after her pregnancy; and applicant’s claim that his wife was forced to
have an abortion and descriptions of passive enforcement of the family
planning policy in the State Department reports); Zhi Wei Pang v. BCIS,
448 F.3d 102, 109-12 (2d Cir. 2006) (finding the following to be
nondramatic: applicant’s testimony that he and his wife wished to carry
her pregnancy to term, but that they stayed in their village until her
second trimester; applicant’s testimony that he paid only half of a
family planning fine and the listing of the child in his household
registry; and applicant’s omission from his application that he and his
wife went into hiding together; applicant’s testimony that Chinese
authorities removed possessions from their home after the birth of their
second child, and his wife had a third life-threatening pregnancy due
to an improper forced sterilization). But see Majidi v. Gonzales, 430
F.3d 77, 79-80 (2d Cir. 2005) (finding dramatic inconsistency between
applicant’s assertion that opposition party members ransacked his home
while he was away and his testimony that he was present, beaten, and
threatened when the opposition party members ransacked his home).
6
1 inconsistent testimony and the “questions on cross-
2 examination were general and exploratory in nature.” Zhi
3 Wei Pang v. BCIS, 448 F.3d 102, 109-10 (2d Cir. 2006)
4 (explaining that requirement that IJ solicit explanations
5 for nondramatic inconsistencies “does not mean that the IJ
6 must duplicate the questions of the government when the
7 government has already noted testimonial flaws on cross-
8 examination[,] [b]ut when the government’s cross-
9 examination does not put the applicant on notice of a
10 putative flaw, the government’s cross-examination cannot
11 absolve the IJ of the responsibility to make the applicant
12 aware that an explanation is necessary”). The entire
13 cross-examination spans only two pages of transcript, and
14 the Department of Homeland Security (“DHS”) counsel’s
15 questions related primarily to Zheng’s relationship to the
16 witness and the order of events at the funeral. And while
17 DHS counsel specifically asked Zheng about the timing of
18 the burial as compared to the funeral and banquet, DHS
19 counsel did not ask the witness to distinguish the burial
20 from the other events or ask a single question about the
21 burial. We therefore conclude that Zheng should have had
22 an opportunity to address the inconsistencies between his
7
1 and his one-year witness’s testimony before the IJ relied
2 on them.
3 Additionally, as Zheng argues, the IJ misstated the
4 record when making the inconsistency finding about the one-
5 year witness’s cousin. The IJ stated that Zheng “went to
6 the funeral” with the one-year witness’s cousin, rather
7 than merely sitting with her at the banquet, and that the
8 one-year witness “did not recognize anyone who sat with”
9 Zheng. Instead, the one-year witness testified that she
10 was not “too clear” about recognizing anyone. CAR at 65,
11 105, 122. The IJ also stated incorrectly that Zheng
12 testified that the funeral service was in the morning, when
13 Zheng initially testified that he did not “recall too
14 clear; about an hour after the banquet.” Id. at 65, 105.
15 Although “the agency does not commit an ‘error of law’
16 every time an item of evidence . . . is described with
17 imperfect accuracy,” Mendez v. Holder, 566 F.3d 316, 323
18 (2d Cir. 2009), the imprecision underscores the purpose of
19 the requirement to solicit explanations. “Without this
20 requirement, asylum applicants would frequently be denied
21 the opportunity to clarify genuinely consistent testimony
22 that the IJ has unwittingly misconstrued. And, conversely,
8
1 immigration judges could prematurely decide that testimony
2 is inconsistent when, in fact, the purported discrepancies
3 readily admit of explanations which the IJ would find
4 valid.” Ming Shi Xue, 439 F.3d at 122.
5 Second, the IJ failed to solicit an explanation for the
6 inconsistency between Zheng and his other witness’s
7 testimony concerning the number of times they practiced
8 Falun Gong together in the United States. Zheng testified
9 that they practiced and attended parades together twice;
10 his witness initially testified that they attended two
11 parades, but had practiced together only once. DHS counsel
12 confronted the witness with Zheng’s inconsistent testimony;
13 however, after appearing to testify to having practiced
14 twice with Zheng, the witness reaffirmed that they had
15 practiced together only once. The IJ simply stated that
16 the witness “appeared to change her testimony by claiming
17 that there was a second time,” without acknowledging the
18 subsequent clarification. CAR at 66. While these
19 discrepancies do relate to Zheng’s current practice of
20 Falun Gong, and thus to his fear of future persecution in
21 China based on his prospective practice, they “are not
22 premised on ‘dramatically different’ accounts of the
9
1 alleged persecution.” Ming Shi Xue, 439 F.3d at 121; see
2 supra n.1. Moreover, although the witness had an
3 opportunity to explain why her testimony was inconsistent
4 with Zheng’s, and Zheng’s counsel declined an opportunity
5 for redirect examination of the witnesses, Zheng was not
6 himself confronted with the inconsistency before the IJ
7 relied on it to find him not credible.
8 Whether the IJ also erred by failing to solicit an
9 explanation for the omission from Zheng’s application and
10 father’s letter regarding the police’s post-arrest visits
11 presents a closer question. As the IJ observed, Zheng
12 testified that the police visited his home two or three
13 times after his arrest to look around, but these visits
14 were omitted from his application and father’s letter.
15 While these omissions are more obvious than the
16 inconsistencies arising from the witnesses’ testimony, as
17 they relate to the Chinese government’s continued interest
18 in Zheng in the aftermath of his alleged persecution, they
19 are not “premised on ‘dramatically different’ accounts of
20 the alleged persecution.” Ming Shi Xue, 439 F.3d at 121;
21 see supra n.1. Moreover, given the issues discussed above,
22 these omissions alone do not constitute substantial
10
1 evidence for the adverse credibility determination because
2 a lack of detail in an application does not necessarily
3 constitute an omission for the purpose of an adverse
4 credibility determination, and Zheng was not asked a single
5 question about his father’s letter. Pavlova v. INS, 441
6 F.3d 82, 90-91 (2d Cir. 2006) (“[A]sylum applicants are not
7 required to list every incident of persecution on their I-
8 589 statements.”).
9 Last, we reject the Government’s contention that Zheng
10 had an opportunity to explain because DHS counsel mentioned
11 the inconsistencies and omissions in her closing statement
12 and Zheng’s counsel gave a rebuttal. “The fundamental
13 requirement of due process is the opportunity to be heard
14 at a meaningful time and in a meaningful manner.” Mathews
15 v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation
16 marks and citation omitted; emphasis added). Zheng was not
17 recalled after his witnesses, DHS counsel did not call
18 Zheng’s attention to the inconsistencies and omissions
19 until after the close of evidence, and “the arguments of
20 counsel are not evidence.” Pretzantzin v. Holder, 736 F.3d
21 641, 651 (2d Cir. 2013). In sum, given the lack of
22 opportunity for explanation, we conclude that the adverse
11
1 credibility determination is not supported by substantial
2 evidence. See Ming Shi Xue, 439 F.3d at 127. Because the
3 BIA did not reach the IJ’s alternative burden findings, we
4 also do not reach those findings.
5 For the foregoing reasons, the petition for review is
6 GRANTED, the BIA’s order is VACATED, and the case is
7 REMANDED for further proceedings consistent with this
8 order. On remand, the agency is directed to address the
9 IJ’s responsibility to solicit explanations for putative
10 inconsistencies arising from subsequent witness testimony,
11 particularly where, as here, the applicant was represented
12 by counsel. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk of Court
12