     16-1594
     Ye v. Sessions
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A205 301 355

                           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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   29th day of January, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            RAYMOND J. LOHIER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   TENGCHANG YE,
14            Petitioner,
15
16                    v.                                             16-1594
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Gary J. Yerman, Yerman & Jia, LLC,
24                                         New York, NY.
25
26   FOR RESPONDENT:                       Chad A. Readler, Acting Assistant
27                                         Attorney General; Douglas E.
28                                         Ginsburg, Assistant Director;
29                                         Timothy Bo Stanton, Trial
30                                         Attorney, Office of Immigration
31                                         Litigation, United States
32                                         Department of Justice,
33                                         Washington, 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 is

4    GRANTED.

5        Petitioner Tengchang Ye, a native and citizen of the

6    People’s Republic of China, seeks review of an April 21, 2016

7    decision of the BIA affirming a September 29, 2014 decision of

8    an Immigration Judge (“IJ”) denying Ye’s application for

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Tengchang Ye, No. A205 301 355

11   (B.I.A. Apr. 21, 2016), aff’g No. A205 301 355 (Immig. Ct. N.Y.

12   City Sept. 29, 2014).   We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we review the IJ’s

15   decision as modified by the BIA and consider only the adverse

16   credibility determination, which the BIA found dispositive.

17   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

18   (2d Cir. 2005).   The applicable standards of review are well

19   established.   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

20   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

21       The governing REAL ID Act credibility standard provides

22   that the agency must “[c]onsider[] the totality of the

23   circumstances,” and may base a credibility finding on an
                                    2
1    applicant’s “demeanor, candor, or responsiveness,” the

2    plausibility of his account, and inconsistencies or omissions

3    in his or his witness’s statements, “without regard to whether”

4    they go “to the heart of the applicant’s claim.”     8 U.S.C.

5    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-67.

6    For the reasons that follow, we are unable to conclude that

7    substantial evidence supports the agency’s determination that

8    Ye was not credible.

9        Initially, the agency’s adverse credibility determination

10   is entirely based on discrepancies arising from Ye’s credible

11   fear interview; the agency did not assess, however, whether the

12   interview record displayed the requisite “hallmarks of

13   reliability.”   Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir.

14   2009).   A credible fear interview warrants “close examination”

15   because it may “be perceived as coercive” or fail to “elicit

16   all of the details supporting an asylum claim.”   Id. at 724-25.

17   That is because “an alien appearing at a credible fear interview

18   has ordinarily been detained since his or her arrival in the

19   United States and is therefore likely to be more unprepared,

20   more vulnerable, and more wary of government officials than an

21   asylum applicant who appears for an interview before

22   immigration authorities well after arrival.”      Id. at 724.

23   Although a credible fear interview can be considered in
                                    3
1    assessing credibility if “the record of a credible fear

2    interview displays the hallmarks of reliability,” id. at 725,

3    the agency neither acknowledged this requirement nor assessed

4    the reliability of Ye’s credible fear interview record.

5        Moreover, the agency’s adverse credibility determination

6    is based on only one inconsistency involving the substance of

7    Ye’s claim: that between his statements at his credible fear

8    interview and his later testimony about whether he was burned,

9    or merely threatened, with a lit cigarette. Ye explained in his

10   application that he misspoke during his credible fear

11   interview, and he testified that the interviewer may have

12   misunderstood him.   In his decision, the IJ stated erroneously

13   that, following instructions by the snakeheads, Ye admitted

14   that he lied under oath about being burned with a cigarette.

15   Ye did admit that he lied during his credible fear interview

16   about the dates of his travel to the United States, and averred

17   that he did so because his human trafficker threatened to harm

18   his family if he did not conceal his smuggling information. But

19   Ye did not advance this explanation for the discrepancy in his

20   testimony about being threatened with a lit cigarette.   The IJ

21   thus misstated the record when rejecting Ye’s explanation and

22   erroneously failed to consider Ye’s actual explanation.     Id.

23   See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 403 (2d
                                    4
1    Cir. 2005) (“Absent a reasoned evaluation of [the applicant’s]

2    explanations, the IJ’s conclusion that his story is implausible

3    was based on flawed reasoning and, therefore, cannot constitute

4    substantial evidence supporting her conclusion.”).

5        The remaining bases for the credibility determination

6    relate only to the details of Ye’s travel to the United States,

7    i.e., whether he used his own passport, and the dates on which

8    he departed China and arrived in the United States.   Before the

9    REAL ID Act took effect, we held that date discrepancies “need

10   not be fatal to credibility, especially if the errors are

11   relatively minor and isolated, and do not concern material

12   facts.”   Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000)

13   (internal citations omitted).   Although the REAL ID Act allows

14   an IJ to “rely on any inconsistency . . . in making an adverse

15   credibility determination,” the “totality of the

16   circumstances” must still support the determination that the

17   applicant is not credible.   Xiu Xia Lin, 534 F.3d at 167.   On

18   appellate review, “[w]e must assess whether the IJ has provided

19   specific, cogent reasons for the adverse credibility finding

20   and whether those reasons bear a legitimate nexus to the

21   finding.” Id. at 166 (internal quotation marks omitted).

22       The agency made no attempt to explain why the four-day

23   departure date discrepancy, three-day arrival date
                                     5
1    discrepancy, and inconsistency about whether Ye travelled on

2    his own passport undermined the entirety of Ye’s claim.      The

3    agency’s failure to supply any reasoning in this regard

4    precludes meaningful review of its analysis.      See Poradisova

5    v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite our

6    generally deferential review of IJ and BIA opinions, we require

7    a certain minimum level of analysis from the IJ and BIA opinions

8    denying asylum, and indeed must require such if judicial review

9    is to be meaningful.”).

10       We have additional concerns with the agency’s reliance on

11   possible inconsistencies in Ye’s travel-related statements.

12   For example, the IJ rejected Ye’s explanation for the departure

13   date discrepancy solely because Ye was under oath during his

14   credible fear interview.   This finding is in tension with our

15   case law calling for “close examination” of credible fear

16   interview statements because the interview may “be perceived

17   as coercive” and the alien may be “wary of government

18   officials.”   Ming Zhang, 585 F.3d at 724.   For similar reasons,

19   the IJ’s rejection of Ye’s explanation for the passport

20   discrepancy is also troubling.     Ye asserted that he concealed

21   information during his credible fear interview at the human

22   trafficker’s direction, and under threat from the trafficker.

23   The IJ rejected this explanation on the grounds that Ye was
                                    6
1    provided with an interpreter, waived the presence of counsel,

2    and was under oath when he made the relevant statements.    The

3    IJ’s references to an interpreter being present and to Ye

4    waiving the presence of counsel do not clearly relate to Ye’s

5    explanation that he lied to prevent his smuggler from acting

6    against his family in China, and do not reflect reasoned

7    consideration of Ye’s explanation.     See Xiu Xia Lin, 534 F.3d

8    at 166; Cao He Lin, 428 F.3d at 403.    And, as noted above, the

9    mere fact that Ye was under oath during his credible fear

10   interview does not support the wholesale rejection of his

11   explanation.    See Ming Zhang, 585 F.3d at 724.

12       In light of the foregoing errors in the agency’s

13   credibility analysis, we are unable to conclude that

14   substantial evidence supports its adverse credibility ruling.

15   See Xiu Xia Lin, 534 F.3d at 165-67.    All but one of the bases

16   for the credibility determination concern Ye’s travel to the

17   United States, and the agency did not address the reliability

18   of the credible fear interview or otherwise explain how, viewing

19   the totality of the circumstances, these discrepancies

20   regarding his travel and the single inconsistency regarding

21   whether Ye was burned or merely threatened with burning render

22   the entirety of Ye’s claim not credible.    See Poradisova, 420

23   F.3d at 77.    Ye also argues that the BIA erred by failing to
                                    7
1    consider whether he independently established a well-founded

2    fear of future persecution and challenges the IJ’s alternative

3    non-credibility based rejection of his future persecution

4    claim. But, because the credibility determination was the sole

5    basis for the BIA’s denial of relief, only the credibility

6    determination is properly before us.    Xue Hong Yang, 426 F.3d

7    at 522.   Had the adverse credibility determination been

8    supported by substantial evidence, it would have applied to Ye’s

9    description of both his past and his current practice of

10   Christianity, and would therefore have afforded a basis for

11   denying Ye’s claims based on both past and future persecution.

12   See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

14   GRANTED, the BIA’s order is VACATED, and case is REMANDED for

15   further proceedings consistent with this order.     As we have

16   completed our review, any stay of removal that the Court

17   previously granted in this petition is VACATED, and any pending

18   motion for a stay of removal in this petition is DISMISSED as

19   moot.   Any pending request for oral argument in this petition

20   is DENIED in accordance with Federal Rule of Appellate

21   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

22                           FOR THE COURT:
23                           Catherine O’Hagan Wolfe, Clerk of Court


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