     14-1569
     Yu v. Sessions
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 986 538
                           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   16th day of June, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PIERRE N. LEVAL,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   CHUAN FENG YU,
14            Petitioner,
15
16                    v.                                             14-1569
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.*
21   _____________________________________
22
23   FOR PETITIONER:                       Chuan Feng Yu, pro se, Flushing,
24                                         NY.
25
26   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
27                                         Deputy Assistant Attorney
28                                         General; Janette L. Allen, Senior

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jeff Sessions is automatically substituted for former
     Attorney General Loretta E. Lynch as Respondent.
1                                  Litigation Counsel; Raya Jarawan,
2                                  Trial Attorney, Office of
3                                  Immigration Litigation, United
4                                  States Department of Justice,
5                                  Washington, DC.
6
7        UPON DUE CONSIDERATION of this petition for review of a

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

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   GRANTED, the BIA’s decision is VACATED, and the case is REMANDED

11   for further proceedings consistent with this order.

12       Petitioner Chuan Feng Yu, a native and citizen of the

13   People’s Republic of China, seeks review of a February 25, 2014,

14   decision of the BIA affirming the September 26, 2011, decision

15   of an Immigration Judge (“IJ”) denying Yu’s application for

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

17   Against Torture (“CAT”).    In re Chuan Feng Yu, No. A087 986 538

18   (B.I.A. Feb. 25, 2014), aff’g No. A087 986 538 (Immig. Ct. N.Y.

19   City Sept. 26, 2011).    We assume the parties’ familiarity with

20   the underlying facts and procedural history in this case.

21       We have reviewed the decisions of both the IJ and BIA.

22   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).   The

23   applicable standards of review are well established.          See

24   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

25   165-66 (2d Cir. 2008).

                                     2
1    I.     Credibility

2           The governing REAL ID Act credibility standard provides

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

4    circumstances,” and may base a credibility finding on an

5    applicant’s     “demeanor,      candor,    or    responsiveness,”          the

6    plausibility of his account, and inconsistencies in his or his

7    witness’s statements, “without regard to whether” they go “to

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

9    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.                     “We

10   defer . . . to an IJ’s credibility determination unless . . . it

11   is plain that no reasonable fact-finder could make such an

12   adverse credibility ruling.”         Xiu Xia Lin, 534 F.3d at 167.

13   For the reasons that follow, we conclude that the agency’s

14   credibility determination is not supported by the totality of

15   the circumstances.

16          Although we have recognized that “[a]n inconsistency and

17   an omission are, for . . . purposes [of an adverse credibility

18   determination],        functionally        equivalent,”         the         IJ

19   mischaracterized       the    lack   of   certain     details       in    Yu’s

20   application as omissions.        See Pavlova v. INS, 441 F.3d 82, 91

21   (2d Cir. 2006) (concluding that an IJ may err in finding that

22   a lack of detail in an application necessarily constitutes an

                                          3
1    omission for purposes of an adverse credibility determination).

2    Yu testified that the police beat him 30 to 40 times to keep

3    him awake during his detention, and the IJ found that while Yu’s

4    application did state he was not permitted to sleep, it was

5    troubling that Yu’s application did not specify that he was

6    beaten 30 to 40 times.     Yu’s application provided, however,

7    that the police “didn’t let [him] sleep or eat for two straight

8    days.    During this period, they constantly cursed at [him] and

9    beat [him] up.”    Therefore, although Yu’s application did not

10   explicitly quantify the number of beatings, it did not omit that

11   he was repeatedly beaten to keep him awake, and the IJ erred

12   in concluding that Yu’s failure to give a precise number was

13   a significant omission from his application.       See id. at 90

14   (“[A]sylum applicants are not required to list every incident

15   of persecution on their I-589 statements.”).

16       The IJ’s demeanor finding, which is supported by only a

17   single example from the record, is also problematic.      An IJ’s

18   assessment of an applicant’s demeanor generally merits “great

19   deference.”    Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.

20   2006).    The IJ concluded that Yu failed to answer directly three

21   questions regarding why his wife would have to have an abortion.

22   However, contrary to the IJ’s finding, when the question was

                                      4
1    phrased clearly, Yu was responsive, stating that the government

2    rigorously enforces the family planning policy in his local

3    area, and, because his first child was a boy, his wife was not

4    allowed to have a second child.    The initial questions posed

5    related to how the forced abortion was accomplished (rather than

6    to why his wife was subject to that penalty).   Given the initial

7    lack of clarity in the question, this single example of a lack

8    of responsiveness does not support the IJ’s conclusion that Yu

9    was testifying from a script rather than from actual memory or

10   that his demeanor alone was sufficient grounds for the adverse

11   credibility determination, which is not a conclusion that we

12   have previously embraced.   See Diallo v. Holder, 399 F. App’x

13   678, 679 (2d Cir. 2010).

14       Given the foregoing errors, which relate to the IJ’s most

15   significant bases for the adverse credibility determination,

16   we cannot conclude that remand would be futile.    See Li Hua Lin

17   v. U.S. Dep’t of Justice, 453 F.3d 99, 106-07 (2d Cir. 2006).

18   II. Pretermission of Asylum

19       Remand could be futile regarding asylum if the agency’s

20   timeliness finding is a valid alternative ground for denial.

21   Li Hua Lin, 453 F.3d at 107.   However, we cannot conclude that

22   the agency’s one-year bar ruling is a valid alternative basis.

                                    5
1           An asylum application must be filed within one year of an

2    applicant’s arrival in the United States, absent changed or

3    extraordinary circumstances.         8 U.S.C. § 1158(a)(2)(B), (D).

4    Our jurisdiction to review the agency’s pretermission of asylum

5    on timeliness grounds is limited to “constitutional claims or

6    questions of law.”      8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).

7           Yu’s argument that the agency erred in discounting the

8    testimony of his one-year witness presents an open legal

9    question for review: whether an IJ who doubts the veracity of

10   a written statement from a witness who is available for

11   cross-examination must cross-examine that witness prior to

12   discounting the witness’s statement solely on the grounds that

13   the witness is interested.          “[A]n IJ is not merely the fact

14   finder and adjudicator, but also has an obligation to establish

15   and develop the record.”       Islam v. Gonzales, 469 F.3d 53, 55

16   (2d    Cir.   2006);   see   also    8    U.S.C.   § 1229a(b)(1)   (“The

17   immigration judge shall administer oaths, receive evidence, and

18   interrogate, examine, and cross-examine the alien and any

19   witnesses.” (emphasis added)).           The Supreme Court has observed

20   that     “the    crucible     of         cross-examination”   is    the

21   “constitutionally prescribed method of assessing reliability”

22   of testimonial statements.          Crawford v. Washington, 541 U.S.

                                          6
1    36, 61-62 (2004).   Here, however, the IJ did not cross-examine

2    Yu’s one-year witness because the parties’ had stipulated that

3    she would testify consistently with her statement.      Although

4    we have approved of discounting “letters from relatives and

5    friends” on the grounds that the authors are “interested

6    witnesses who were not subject to cross-examination,” Matter

7    of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010), rev’d

8    on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

9    Cir. 2012), neither we nor the BIA has addressed whether 8 U.S.C.

10   § 1229a(b)(1) requires an IJ to cross-examine an available

11   witness before discrediting a written statement solely on the

12   ground that the author is an interested witness.   We remand for

13   the BIA to address in the first instance the extent of an IJ’s

14   duties under § 1229a(b)(1) in such a situation.     See Jian Hui

15   Shao v. BIA, 465 F.3d 497, 501 (2d Cir. 2006) (“[W]e conclude

16   that the BIA is better situated than we are to decide the

17   statutory interpretation question in the first instance.”).

18       For the foregoing reasons, the petition for review is

19   GRANTED, the BIA’s decision is VACATED, and the case is REMANDED

20   for further proceedings consistent with this order.   As we have

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

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

                                    7
1   motion for a stay of removal in this petition is DISMISSED as

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

3   is DENIED in accordance with Federal Rule of Appellate Procedure

4   34(a)(2), and Second Circuit Local Rule 34.1(b).

5                                FOR THE COURT:
6                                Catherine O’Hagan Wolfe, Clerk




                                   8
