    15-377
    Lin v. Lynch
                                                                                       BIA
                                                                                 Zagzoug, IJ
                                                                               A096 132 956
                        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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    4th day of August, two thousand sixteen.

    PRESENT:
             JON O. NEWMAN,
             DENNIS JACOBS,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    FENG YUE LIN,
             Petitioner,

                   v.                                                15-377
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:                     Gary J. Yerman, New York, NY.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Nancy
                                         Friedman,     Senior     Litigation
                                         Counsel; Sharon M. Clay, Trial
                                         Attorney, Office of Immigration
                                         Litigation,      United      States
                                         Department of Justice, Washington,
                                         DC.
      UPON DUE CONSIDERATION of this petition for review of a Board

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

ADJUDGED, AND DECREED that the petition for review is GRANTED,

and the matter is REMANDED.

      Petitioner Feng Yue Lin, a native and citizen of the People’s

Republic of China, seeks review of a January 23, 2015, decision

of the BIA, affirming an October 23, 2012, decision of an

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

and relief under the Convention Against Torture (“CAT”). In re

Feng Yue Lin, No. A096 132 956 (B.I.A. Jan. 23, 2015), aff’g

No. A096 132 956 (Immig. Ct. N.Y. City Oct. 23, 2012). We assume

the   parties’    familiarity         with    the   underlying     facts     and

procedural history in this case.

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

decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t

of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable

standards    of   review        are    well    established.        8    U.S.C.

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

(2d Cir. 2008).

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

circumstances,”      base   a    credibility        finding   on   an   asylum

applicant’s demeanor, the plausibility of her account, and

inconsistencies in her statements and other record evidence
                                       2
“without regard to whether” they go “to the heart of the

applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

534 F.3d at 163-64. Although the record reveals minor instances

of inconsistencies in the Petitioner’s testimony, some of the

IJ’s findings are not inconsistencies, some are not supported

by the record, some involve unwarranted speculation, and some

aspects of the IJ’s and the BIA’s comments warrant further

explanation.   In combination these deficiencies require a

remand.

    The IJ expressed concern about the medical certificate from

the hospital where the alleged abortion was performed. The IJ

referred to the Department of State profile, which she said,

“indicates that documents issued upon patient’s request indicate

a voluntary abortion and not passed out [sic] on the involuntary

nature of the procedure . . . .” ROA 68. There is no evidence

that the certificate was issued at Lin’s request. When asked,

“Why did you get this record?” Lin answered, “When I left the

hospital, doctor gave it to me.” ROA 122. She was then asked,

“What were you, what was it for, do you know?” and answered,

“I don’t know, he gave it to me.” Id. The IJ gave no explanation

as to why the Department of State profile concerning requested

documents cast doubt on the testimony of a witness who did not

make a request. The IJ stated that Lin’s “acquisition of an
                               3
abortion record without even asking for it is suspect.” ROA

67-68. The IJ did not explain the basis for her speculation that

Lin’s acquisition of the certificate without asking for it was

“suspect.”

    The IJ expressed concern that the certificate (Exhibit C,

ROA 251-52) indicates that it is an “out-patient history,”

whereas Lin testified that she stayed one night at the hospital

(ROA 121). The certificate indicates a “Primary outpatient date”

of December 20, 2010. There is no explanation of why the date

is called “[p]rimary.” The IJ doubted Lin’s testimony that she

stayed in the hospital one night and that her mother, who took

her home the second day, came to visit her the first day. The

IJ considered Lin’s testimony “not consistent with her mother’s

letter” (Exhibit J, ROA 292), “which does not mention an

overnight stay.” ROA 67.     There is no inconsistency. The

mother’s first day visit was not such a significant event that

it would normally be expected to be mentioned in a letter

informing the IJ about her daughter’s forced abortion. Moreover,

the letter states, “When I arrived in the hospital, they already

gave my daughter an injection to have an induced abortion,”

(Exhibit J, ROA 292), which can be fairly read to mean that the

mother visited shortly after the abortion occurred.

    The IJ also noted what she considered inconsistencies in
                               4
Lin’s testimony about her uncle, Michael Lam, and between her

uncle’s testimony and hers. The IJ recounted Lin’s testimony

about the day her uncle visited her home in China: “she spent

time with him”; “she did not really talk to him”; she “changed

her testimony from only seeing him to have [sic] a conversation

with him about needing help when she gets to the United States.”

ROA 53. The IJ characterized Lin’s demeanor during this portion

of her testimony as “very confused,” noting that “[h]er brows

were furrowed.” Id. The uncle testified that on that day “She

just mentioned she wants to go to United States” and “I mention

I can help her find a job or something, but nothing else.” (ROA

146-47). If these fragments show an inconsistency at all, it

is trivial, and it is not clear how furrowed brows render demeanor

“very confused.”

     The IJ noted Lin’s initial testimony that she “heard” her

father and her uncle, Michael Lam, talking that day. ROA 54.

And, the IJ continued, Lin “indicated, changing her testimony

again, that she did not actually hear the conversation, that

her father told her later on that he told him [about the

abortion].” Id. Lin explained, “What I meant was, I heard from

my father. He told me he already tell uncle about it.” ROA 133.

Whether Lin overheard her father’s report to her uncle or heard

the father’s account of the conversation directly from him is
                                5
of trivial, if any, significance.      Although inconsistencies

need not go to the heart of an applicant’s claim, they must have

at least minimal significance.

     The IJ noted the uncle’s testimony that he and Lin “had

dinner together once or twice every couple of weeks” and then

“changed his testimony to say that they see each other whenever

he has time.” ROA 64. These fragments do not reveal that the

uncle’s testimony “changed.”

     The IJ characterized Lin’s testimony as stating that “after

their initial meeting in the United States, she saw . . . Michael

Lam . . . only when he appeared in Immigration Court to testify

on her behalf,” referring to the court hearings on April 6, August

31, and October 2, 2012. ROA 64.      This characterization was

inaccurate. The IJ apparently was referring to a question to

Lin on cross examination: “The only time you see your uncle is

in connection with this case?” ROA 141.      Lin answered, “No,

everyday life, too.” Id. Lin also testified, “We often came out

and see each other.” ROA 140. Lam testified that he and Lin saw

each other in the United States “[s]ometimes. When I have time

I go.” ROA 149.

     The IJ doubted Lin’s credibility because she did not know

the name of Lam’s wife, apparently meaning her first name. Lin

testified that “[w]e only call [her] auntie.” ROA 136. There
                                6
was no reason to doubt that Lin did not know the first name of

the uncle’s wife. The wife and the uncle are apparently

estranged; the uncle testified that he lives in Chinatown, and

the wife lives on Long Island. ROA 147. He also testified that

Lin had never met his wife. Id. The IJ also stated, “[Lin’s]

excuse that she is not close to [Lam’s] children because they

were in the United States for a long time and they are between

30 and 40 years old does not make any sense, because she is

approximately 34 years old and would be in the same range as

his children.” ROA 65. This mischaracterizes her testimony. Lin

never testified that she was not close to the uncle’s children

because they were between 30 and 40 years old. She was asked

whether   she   knew   their   ages   and   answered   “30-something,

40-something?” and “I don’t know.” ROA 136. When asked, “You

don’t know the names of his kids?” she answered, “Because they

left the country early.” Id.

    In sum, the IJ’s basis for doubting Lin’s credibility on

the serious matter of whether her undisputed abortion was

voluntary or forced is undermined by mischaracterizations of

the record and assertions of some inconsistencies that do not

exist and some that are trivial.        A remand to develop a more

reliable basis for determining Lin’s credibility is required.

Because the IJ has already come to a conclusion that Lin was
                                  7
not credible, we will direct that, on remand, the new hearing

occur before a different IJ to avoid the risk that the IJ who

conducted the first hearing might not be able to put aside her

initial conclusion. See Guo-Le Huang v. Gonzales, 453 F.3d 142,

151 (2d Cir. 2006) (recognizing power of courts to require

reassignment to avoid appearance of impartiality).

    For the foregoing reasons, the petition for review is

GRANTED, and the matter is REMANDED for a new hearing consistent

with this order.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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