     16-3144
     Xiao v. Whitaker
                                                                                    BIA
                                                                              Poczter, IJ
                                                                           A205 589 688
                             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 13th day of December, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            JOHN M. WALKER, JR.,
 9            RICHARD C. WESLEY,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   QIAN WU XIAO, AKA XIAO QIAN WU,
15                 Petitioner,
16
17                      v.                                       16-3144
18                                                               NAC
19   MATTHEW G. WHITAKER, ACTING
20   UNITED STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Dehai Zhang, Flushing, NY.
25
26   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
27                                      Attorney General; Stephen J.
28                                      Flynn, Assistant Director; Jeffrey
29                                      R. Meyer, Attorney, Office of
1                                      Immigration Litigation, United
2                                      States Department of Justice,
3                                      Washington, DC.
4
5           UPON DUE CONSIDERATION of this petition for review of a

6    Board of Immigration Appeals (“BIA”) decision, it is hereby

7    ORDERED, ADJUDGED, AND DECREED that the petition for review

8    is GRANTED.

9           Petitioner Qian Wu Xiao, a native and citizen of the

10   People’s Republic of China, seeks review of an August 18,

11   2016, decision of the BIA affirming an April 7, 2015, decision

12   of an Immigration Judge (“IJ”) denying Xiao’s application for

13   asylum,       withholding    of   removal,   and    relief      under    the

14   Convention Against Torture (“CAT”).          In re Qian Wu Xiao, No.

15   A 205 589 688 (B.I.A. Aug. 18, 20(16), aff’g No. A 205 589 688

16   (Immig. Ct. N.Y. City Apr. 7, 2015).          We assume the parties’

17   familiarity with the underlying facts and procedural history

18   in this case.      Briefly, the claim of persecution is based on

19   the alleged conduct of the police, including beating Xiao

20   while in detention for her participation in an underground

21   church in China.

22          Under the circumstances of this case, we have reviewed

23   both    the     IJ’s   and   BIA’s   decisions     “for   the     sake    of
                                          2
1    completeness.”        Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

2    524, 528 (2d Cir. 2006).           We review an adverse credibility

3    determination        for   substantial     evidence.         See   8 U.S.C.

4    § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

5    66 (2d Cir. 2008).

6        The      agency    may,   “[c]onsidering    the    totality     of   the

7    circumstances,” base an adverse credibility ruling on:

 8       [T]he consistency between the applicant’s or
 9       witness’s written and oral statements . . . the
10       consistency of such statements with other evidence
11       of record . . . and any inaccuracies or falsehoods
12       in such statements, without regard to whether an
13       inconsistency, inaccuracy, or falsehood goes to the
14       heart of the applicant’s claim, or any other
15       relevant factor.
16
17   8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

18   at 163-64, 166-67 & n.3.          Since the agency’s decision in this

19   case,   we    have    clarified    the    standards    for   the   agency’s

20   reliance on omissions.             “Although IJs may rely on non-

21   material omissions and inconsistencies, not all omissions and

22   inconsistencies will deserve the same weight.”                Hong Fei Gao

23   v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018).                 Instead, the

24   agency must “distinguish between (1) omissions that arise

25   merely because an applicant’s oral testimony is more detailed

                                           3
1    than his or her written application, and (2) omissions that

2    tend to show that an applicant has fabricated his or her

3    claim.”    Id. at 82.

4           In this case, the agency relied on omissions regarding

5    Xiao’s medical treatment and police visit and calls.             When

6    asked on cross examination if she received medical treatment,

7    Xiao testified that she went to a local clinic with her father

8    the day she was released from detention for an exam and an x-

9    ray.    She also testified that police officers came to her

10   house a week after her release and then called her house

11   repeatedly demanding that she report to the police station.

12   These     facts   were   not   included   in    Xiao’s   application,

13   affidavit, or direct testimony, or in her father’s letter.

14   Xiao explained that she forgot to tell her lawyer about the

15   medical treatment and police visit and calls and did not know

16   why her father failed to mention them.

17          Because the omissions in this case are very similar to

18   those at issue in Hong Fei Gao, we remand for the agency to

19   reconsider the adverse credibility determination in the first

20   instance.     See 891 F.3d at 79-81.           On remand, the agency

21   should consider (1) whether Xiao’s testimony regarding her
                                       4
1    medical   treatment        and    police     contact      supplemented,     or

2    contradicted,       the    information       in     her    application     and

3    affidavit, (2) whether Xiao’s father’s omissions created any

4    inconsistencies       with       Xiao’s     testimony,       and    (3)    the

5    seriousness    of    the     omissions,      taking       into   account   the

6    significance    of    the    events       Xiao    described,     whether   her

7    testimony about these events was brief or detailed, and

8    whether it arose in response to specific questions from the

9    IJ or on cross examination.           Hong Fei Gao, 891 F.3d at 79-

10   82.

11         In sum, under the framework articulated in Hong Fei Gao,

12   Xiao’s and her father’s omissions do not appear to provide

13   substantial evidence for the adverse credibility ruling.

14   Thus, we remand for the agency to reconsider Xiao’s claim.

15         For the foregoing reasons, the petition for review is

16   GRANTED, the BIA’s decision is VACATED, and the case is

17   REMANDED to the BIA for further proceedings consistent with

18   this order.     As we have completed our review, any stay of

19   removal that the Court previously granted in this petition is

20   VACATED, and any pending motion for a stay of removal in this

21   petition is DISMISSED as moot.             Any pending request for oral
                                           5
1   argument in this petition is DENIED in accordance with Federal

2   Rule of Appellate Procedure 34(a)(2), and Second Circuit

3   Local Rule 34.1(b).

4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe,
7                               Clerk of Court




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