     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




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