     17-2237
     Li v. Barr
                                                                                   BIA
                                                                            Schoppert, IJ
                                                                           A205 614 678
                       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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 26th day of September, two thousand nineteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            RICHARD C. WESLEY,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   WANGLIN LI,
14            Petitioner,
15
16                v.                                             17-2237
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Kenneth K. Ho, Flushing, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Sabatino F. Leo,
27                                    Senior Litigation Counsel; D.
28                                    Nicholas Harling, Trial Attorney,
29                                    Office of Immigration Litigation,
30                                    United States Department of
31                                    Justice, Washington, DC.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, we hereby

3    ORDER, ADJUDGE, AND DECREE that the petition for review is

4    GRANTED.

5        Petitioner Wanglin Li, a native and citizen of the

6    People’s Republic of China, seeks review of a June 21, 2017,

7    decision of the BIA affirming an October 18, 2016, decision

8    of an Immigration Judge (“IJ”) denying asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).   In re Wanglin Li, No. A205 614 678 (B.I.A. June 21,

11   2017), aff’g No. A205 614 678 (Immig. Ct. N.Y. City Oct. 18,

12   2016).     We   assume   the   parties’   familiarity   with   the

13   underlying facts and procedural history of this case.

14       “Considering the totality of the circumstances, and all

15   relevant factors, a trier of fact may base a credibility

16   determination on . . . the consistency between the applicant’s

17   . . . written and oral statements . . . , the internal

18   consistency of each such statement, [and] the consistency of

19   such statements with other evidence of record . . . without

20   regard to whether an inconsistency, inaccuracy, or falsehood

21   goes to the heart of the applicant’s claim . . . .”      8 U.S.C.

22   § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d


                                     2
1    162, 163–64 (2d Cir. 2008).                We review adverse-credibility

2    findings      for     substantial         evidence,       treating     them   as

3    “conclusive         unless   any     reasonable      adjudicator      would   be

4    compelled      to    conclude       to    the    contrary.”     See    8 U.S.C.

5    § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

6    (2d Cir. 2018).

7           We have considered both the IJ’s and the BIA’s decisions

8    “for the sake of completeness.”                     Wangchuck v. Dep’t of

9    Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).                      Under the

10   “totality of the circumstances,” we find that each ground for

11   their adverse-credibility determination — and, hence, their

12   overall      determination      —    is    not    supported   by     substantial

13   evidence.

14          First, the IJ’s finding that Li misled him by failing to

15   disclose his disorderly conduct conviction lacks a reasonable

16   basis in the record.           Li’s initial application predated the

17   arrest and, although he checked the box for no arrests or

18   convictions on his amended application, he also attached the

19   certificate of disposition from his arrest and conviction.

20   While it is not clear why Li failed to update his application

21   form    to    reflect    the    conviction,         his   disclosure     of   his

22   conviction record undermines the IJ’s finding that Li “was


                                                3
1    not truthful in regard to [his] arrest.”                  Moreover, Li

2    readily admitted that he had been arrested when asked and

3    recounted the charges against him.              Thus, even under our

4    deferential standard of review, the IJ erred by using this

5    insubstantial oversight on Li’s behalf as a basis for his

6    adverse-credibility finding.

7           Second, the IJ erred by relying on a minor discrepancy

8    in Li’s descriptions of his treatment by Chinese authorities.

9    Li stated in his interview that an officer slapped him and

10   that he was punched, kicked, and hit with a baton before being

11   dragged into another room.              However, while Li’s hearing

12   testimony was largely consistent with this account, he did

13   not mention being slapped at that time, and when asked about

14   the slaps, he said that he was slapped only after being

15   brought into the other room.            While “an IJ may rely on any

16   inconsistency,” an inconsistency does not automatically mean

17   that an asylum applicant is not credible under the totality

18   of the circumstances.        See Xiu Xia Lin, 534 F.3d at 167.

19   When viewed in light of the IJ’s erroneous finding that Li

20   was untruthful about his conviction, the inconsistency over

21   when    Li   was   slapped   does       not,   by   itself,   constitute

22   substantial evidence of adverse credibility.              Cf. Lianping


                                         4
1    Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (upholding an

2    adverse-credibility         determination    where     the    petitioner’s

3    “asylum     application      did   not    simply     omit    incidents     of

4    persecution,”        but    “described      the     same     incidents     of

5    persecution differently,” such as “the timing of her forced

6    abortion, the detention of her husband, and her forced use of

7    an IUD”).

8        The     agency    would    generally     have    the     discretion    to

9    determine    how     much   weight   to    afford    letters     from    Li’s

10   relatives, particularly because the letters were prepared for

11   Li’s removal proceedings and written by individuals who were

12   not available for cross-examination.              See Y.C. v. Holder, 741

13   F.3d 324, 334 (2d Cir. 2013) (deferring to agency decision to

14   afford little weight to petitioner’s husband’s letter because

15   the letter was unsworn and from an interested witness).

16   However, absent other reliable findings calling credibility

17   into question, a lack of corroboration is not a basis for an

18   adverse-credibility determination.           See Chuilu Liu v. Holder,

19   575 F.3d 193, 198 n.5 (2d Cir. 2009) (“[W]hile a failure to

20   corroborate can suffice, without more, to support a finding

21   that an alien has not met his burden of proof, a failure to




                                          5
1   corroborate   cannot,   without     more,   support   an   adverse

2   credibility determination.”).

3       For the foregoing reasons, we GRANT the petition for

4   review, VACATE the BIA’s decision, and REMAND for further

5   proceedings consistent with this order.

6                                FOR THE COURT:
7                                Catherine O’Hagan Wolfe,
8                                Clerk of Court




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