    11-4584
    Zhou v. Holder
                                                                                  BIA
                                                                              Lamb, IJ
                                                                          A087 638 607
                       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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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         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 20th day of June, two thousand fourteen.

    PRESENT:
                     REENA RAGGI,
                     PETER W. HALL,
                     DENNY CHIN,
                          Circuit Judges.

    _____________________________________

    RUI ZHOU,
                     Petitioner,

                      v.                                   11-4584
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                 Troy Nader Moslemi, Moslemi and
                                    Associates, New York, NY.

    FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
                                    Attorney General; Keith I. McManus,
                                    Senior Litigation Counsel; Tracie N.
                                    Jones, 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 Rui Zhou, a native and citizen of China, seeks

review of a September 26, 2011, order of the BIA, affirming

the October 12, 2010, decision of Immigration Judge (“IJ”)

Elizabeth A. Lamb, which pretermitted his application for

asylum and denied withholding of removal and relief under the

Convention Against Torture (“CAT”).   See In re Rui Zhou, No.

A087 638 607 (B.I.A. Sept. 26, 2011), aff’g No. A087 638 607

(Immig. Ct. New York City Oct. 12, 2010).       We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

     Under the circumstances of this case, we have reviewed

the decisions of both the IJ and the BIA.   See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).   The

applicable standards of review are well-established.     See 8

U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534

F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

I.   Pretermission of Asylum

     Title 8, Section 1158(a)(3) of the United States Code

provides that no court shall have jurisdiction to review the

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agency’s finding that an asylum application was untimely under

8   U.S.C.    §   1158(a)(2)(B).           Nevertheless,       we    retain

jurisdiction to review constitutional claims and “questions of

law.”     8   U.S.C.   §     1252(a)(2)(D).       Accordingly,      we   have

jurisdiction to review a pretermission determination where it

is claimed that the IJ’s fact-finding is flawed by an error of

law, such as a material misstatement of the record.                 See Xiao

Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

2006).

     As Zhou correctly notes, in pretermitting Zhou’s asylum

application as untimely, the IJ predicated her determination

on material misstatements of the record. Specifically, the IJ

rejected Zhou’s testimony that he had just arrived in the

United States for the first time within one year of filing for

asylum, despite his submission of a travel receipt reflecting

that he was outside of the United States within a year of

filing,   because      the    IJ   found   that    Zhou   inconsistently

testified that he arrived in San Diego in February 2003 and in

California in 2005.           The record, however, shows that Zhou

testified that he arrived in San Diego on February 3rd and in

California on February 5th of 2008.           See CAR at 90.     In short,

the IJ’s adverse credibility finding appears to be based on a


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significant      discrepancy    in   dates   that    does    not   exist.

Further, in concluding that Zhou’s application was untimely,

the IJ cited to testimony of Zhou’s uncle that he was not

aware of the contents of his own affidavit. While a witness’s

failure to read his own affidavit is disturbing, and while the

weight accorded to an applicant’s evidence lie largely within

the agency’s discretion, Xiao Ji Chen, 471 F.3d at 342, here,

the uncle’s testimony was consistent with his affidavit and

neither that testimony nor the affidavit represented that

Zhou’s uncle had any first-hand knowledge of when Zhou entered

the United States. Thus, absent any explanation as to how the

uncle’s failure to review his own affidavit related to the

timeliness of Zhou’s application, any reliance on this fact in

pretermitting the application was an abuse of discretion. See

Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d

Cir.    2001).      Moreover,    although    the    agency    based   its

pretermission of asylum, in part, on Zhou’s failure to testify

credibly, as discussed below, the agency’s adverse credibility

determination raises other concerns.

II. Adverse Credibility Determination

       For asylum applications, like Zhou’s, governed by the

REAL ID Act, the agency may base a credibility finding on an


                                     4
applicant’s demeanor, the plausibility of his account, and

inconsistencies in his statements, without regard to whether

they go “to the heart of the applicant’s claim.”            8 U.S.C.

§ 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I.&N. Dec. 260, 265

(B.I.A. 2007).    This Court “defer[s] 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 at 167.

    As noted above, the agency erred in basing its adverse

credibility    determination     on   a   purported     testimonial

inconsistency regarding the year Zhou first entered the United

States.   See Dong Gao v. BIA, 482 F.3d 122, 133 (2d Cir. 2007)

(noting that     court of appeals “cannot sustain an adverse

credibility finding . . . that is ‘based upon . . . a

misstatement of the facts in the record’” (citation omitted;

alterations in original)).        The IJ also found that Zhou

testified   inconsistently   about    whether   he   left    China     on

November 27th of 2008 or 2009. The inconsistency is evidenced

in a single phrase—in which Zhou stated that he left China in

2008, then stated it was in 2009 and finally corrected himself

and said he left in 2008.      Even assuming that this statement

manifests inconsistency, it was not a proper basis for the

agency’s adverse credibility determination because it was
                                 5
non-obvious and Zhou was not confronted with it or afforded an

opportunity to explain.           See Ming Shi Xue v. BIA, 439 F.3d

111, 125 (2d Cir. 2006).           Accordingly, the agency’s adverse

credibility determination was not properly based on Zhou’s

purported testimonial inconsistencies regarding when he left

China and entered the United States.             See id.; Dong Gao, 482

F.3d at 133; see also Xiu Xia Lin, 534 F.3d at 167.

       The agency also erred in basing its adverse credibility

determination        on    a   purported   inconsistency    between     the

testimony of Zhou and one of his witnesses about Zhou’s church

attendance in the United States.            See Dong Gao, 482 F.3d at

133; see also Xiu Xia Lin, 534 F.3d at 167.              Although the IJ

found that the witness could not remember the last time she

went to church with Zhou and Zhou testified that they went to

church together in September 2010, Zhou’s testimony concerned

when    he   last    saw   the   witness   at   the   church,   while   the

witness’s testimony concerned when she last attended the

church with Zhou.

       While the agency was correct that Zhou’s testimony was

inconsistent        with   his   application    regarding   whether     his

parents were arrested in China, because two of the three bases

on which the agency placed substantial relevance for its

adverse credibility determination were predicated on clear
                                      6
misstatements    of   the   record,     we    deem   it   “plain    that   no

reasonable fact-finder could make such an adverse credibility

ruling.”    Xiu Xia Lin, 534 F.3d at 167; see Dong Gao, 482 F.3d

at   133.      Moreover,    in   such        circumstances,    we    cannot

confidently predict that remand of these proceedings would be

futile.     See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir.

2008).

     For the foregoing reasons, the petition for review is

GRANTED and the case is REMANDED to the BIA for further

proceedings consistent with this order.

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




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