    13-4596
    Wu v. Lynch
                                                                                   BIA
                                                                          Balasquide, IJ
                                                                          A087 558 317
                    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 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 9th day of February, two thousand sixteen.

    PRESENT:
             ROSEMARY S. POOLER,
             PETER W. HALL,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    YONG JUAN WU,
             Petitioner,

                  v.                                       13-4596
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Giacchino J. Russo, Flushing, New
                                  York.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Blair T. O’Connor,
                                  Assistant Director; John B. Holt,
                                  Trial Attorney, Office of
                                  Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    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.

    Petitioner Yong Juan Wu, a native and citizen of the

People’s Republic of China, seeks review of a November 6,

2013, order of the BIA, affirming the April 2, 2012,

decision of an Immigration Judge (“IJ”), which denied

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”) on credibility grounds.

In re Yong Juan Wu, No. A087 558 317 (B.I.A. Nov. 6, 2013),

aff’g No. A087 558 317 (Immig. Ct. New York City Apr. 2,

2012).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.   We

refer to the different written statements attached to Wu’s

three asylum applications (the applications are dated May

2009, October 2009, and December 2010) as her first, second,

and third statements, respectively.

    Under the circumstances of this case, we review the

IJ’s decision as modified by the BIA decision.   See Xue Hong

Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.


                              2
2005).   The applicable standards of review are well

established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009).

    For asylum applications governed by the REAL ID Act,

such as Wu’s, the agency may base a credibility finding on

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

and inconsistencies in her statements, without regard to

whether they go “to the heart of the applicant’s claim.”        8

U.S.C. § 1158(b)(1)(B)(iii).     “We defer [] to an IJ’s

credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.”       Xiu Xia

Lin, 534 F.3d 162 at 167 (2d Cir. 2008).     Here, substantial

evidence does not support the adverse credibility

determination.

    The adverse credibility determination was based on five

inconsistencies in Wu’s testimony.     Three of the

inconsistencies were between her second statement and her

testimony.     The IJ not only acknowledged that the second

statement was incorrectly translated through no fault of

Wu’s, but granted a continuance precisely so that the

statement could be re-translated.


                                3
    As a basis for determining Wu’s lack of credibility,

the agency, however, seized on the clear inadequacy of Wu’s

former counsel’s explanation for the inaccurate translation.

Those reasons for the mistranslation are entirely unrelated

to the fact that Wu’s testimony was, in fact, mistranslated.

The non-responsiveness of the explanation implicates Wu’s

lawyer’s competence and candor, but it does not implicate

Wu’s credibility.   Accordingly, it was error for the agency

to rely upon the discrepancies between Wu’s testimony before

the IJ and her second statement with regard to how often she

attended church in Singapore, how long she was detained in

China, and how many times she traveled to Singapore.

    The agency properly relied on two other discrepancies:

Wu’s inconsistent testimony regarding when she first

returned to China from Singapore and her testimony regarding

her arrest history in the United States.   However, whether

the agency would conclude that a totality of the

circumstances support an adverse credibility determination

based only on these two inconsistencies is unclear.

Accordingly, remand to the agency is not futile.   Cf. Cao He

Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.

2005).


                              4
    For the foregoing reasons, the petition for review is

GRANTED and this matter is REMANDED to the BIA for further

proceedings consistent with this order.



                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




                             5
