    13-2212 (L); 13-3527 (Con)
    Xie v. Holder
                                                                                  BIA
                                                                             Cheng, IJ
                                                                          A087 646 761
                            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 14th day of October, two thousand fifteen.

    PRESENT:
                      ROBERT A. KATZMANN,
                           Chief Judge,
                      ROSEMARY S. POOLER,
                      DENNY CHIN,
                           Circuit Judges.

    _____________________________________

    YI DI XIE, AKA LIN XIE, AKA GUO
    TIAN HUA,
              Petitioner,

                        v.                                 13-2212(L);
                                                           13-3527(Con)
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.1
    _____________________________________


                 1
               Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Loretta E. Lynch is automatically substituted
        for Eric H. Holder, Jr.
FOR PETITIONER:         Doen Zheng, New York, NY.

FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
                        General; John S. Hogan, Senior
                        Litigation Counsel; Channah F.
                        Norman, Trial Attorney, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    UPON DUE CONSIDERATION of these petitions for review of

decisions of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review in Dkt. No. 13-2212 (L) is DENIED and the petition

for review in Dkt. No. 13-3527 (Con) is GRANTED.

    Petitioner Yi Di Xie, a native and citizen of China,

seeks review of a May 9, 2013 order of the BIA, affirming

the September 30, 2011 decision of an Immigration Judge

(“IJ”), which denied asylum, withholding of removal, and

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

Yi Di Xie, No. A087 646 761 (B.I.A. May 9, 2013), aff’g No.

A087 646 761 (Immig. Ct. N.Y. City Sept. 30, 2011), and a

September 11, 2013 decision of the BIA denying his timely

motion to reopen, In re Yi Di Xie, No. A087 646 761 (B.I.A.

Sept. 11, 2013).   We assume the parties’ familiarity with

the underlying facts and procedural history in this case.



                              2
I.   Petition for Review in Dkt. No. 13-2212 (L)

     Under the circumstances of this case, we review the

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

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

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

1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

165-66 (2d Cir. 2008) (per curiam).     Because Xie filed his

application in 2010, the REAL ID Act applies in this case.

See REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119

Stat. 302, 303 (2005) (codified at 8 U.S.C. §

1158(b)(1)(B)(iii)); Matter of S-B-, 24 I. & N. Dec. 42, 45

(B.I.A. 2006).

     A.   Credibility

     For applications governed by the REAL ID Act, the

agency may base a credibility finding on an 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).   “We defer therefore to an IJ’s

credibility determination unless, from the totality of the


                              3
circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.”    Xiu Xia

Lin, 534 F.3d at 167.   Because “[d]emeanor is virtually

always evaluated subjectively and intuitively,” an IJ’s

assessment of an applicant’s demeanor merits “great

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

2006).

    Xie does not dispute that he appeared to provide

hesitant and non-responsive answers to questions asked

during his merits hearing, which was the sole basis for the

adverse credibility determination.    He instead contends that

the credibility determination was erroneous because his

hesitant and non-responsive demeanor resulted from the

translation errors identified in his subsequently filed

motion to reopen.   However, Xie did not exhaust these

translation error arguments or provide his corrected

transcript on direct appeal to the BIA.    See Lin Zhong v.

U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir. 2007)

(recognizing that issue exhaustion is a mandatory, although

not jurisdictional, requirement).    In light of Xie’s failure

to specifically identify any translation errors, or

meaningfully contest the IJ’s demeanor finding, on direct


                              4
appeal, it cannot be said “that no reasonable fact-finder

could make such an adverse credibility ruling.”     Xiu Xia

Lin, 534 F.3d at 167.

    B.      Corroboration

    For applications governed by the REAL ID Act, “[t]he

testimony of the applicant may be sufficient to sustain the

applicant’s burden without corroboration, but only if the

applicant satisfies the trier of fact that the applicant’s

testimony is credible, is persuasive, and refers to specific

facts sufficient to demonstrate that the applicant is a

refugee.”    See 8 U.S.C. § 1158(b)(1)(B)(ii).   “Where the

trier of fact determines that the applicant should provide

evidence that corroborates otherwise credible testimony,

such evidence must be provided unless the applicant does not

have the evidence and cannot reasonably obtain the

evidence.”    Yan Juan Chen v. Holder, 658 F.3d 246, 252 (2d

Cir. 2011) (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).     “No

court shall reverse a determination made by a trier of fact

with respect to the availability of corroborating

evidence . . . [unless] a reasonable trier of fact is

compelled to conclude that such corroborating evidence is

unavailable.”    8 U.S.C. § 1252(b)(4).


                               5
    Contrary to Xie’s assertions, the agency did not err in

finding that he failed to sufficiently corroborate his

claims.   Although Xie argues that he offered sufficient

evidence to corroborate his past harm in China, the agency’s

corroboration finding was based on Xie’s failure to offer

reasonably available evidence to corroborate his religious

practice in the United States.    Xie contends that the agency

erred in finding that a statement from his sister could

corroborate his current religious practice; however, as the

IJ observed, Xie testified that he found his U.S. church

through his sister’s friend, that his sister was aware of

his U.S. church attendance, and that he calls his sister

every Sunday after going to church.    Xie’s unsupported

assertion that it was not clear that there was anyone from

his church available to testify about his attendance, is

insufficient to compel a reasonable fact-finder to conclude

“that such corroborating evidence is unavailable.”    8 U.S.C.

§ 1252(b)(4).   Moreover, Xie’s assertion that his U.S.

pastors were, in fact, available to testify, is not

supported by the record.   The agency therefore did not err

in finding that Xie failed to sufficiently corroborate his

claims.   See Yan Juan Chen, 658 F.3d at 252; 8 U.S.C.

§ 1158(b)(1)(B)(ii).
                              6
II. Petition for Review in Dkt. No. 13-3527 (Con)

    We review the BIA’s denial of a motion to reopen for

abuse of discretion.    See Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23

(1992)).    “A motion to reopen proceedings shall not be

granted unless it appears to the [BIA] that evidence sought

to be offered is material and was not available and could

not have been discovered or presented at the former

hearing.”    8 C.F.R. § 1003.2(c)(1) (2015).   Failure to offer

such evidence is therefore a proper ground on which the BIA

may deny a motion to reopen, as is the movant’s failure to

establish “a prima facie case for the underlying substantive

relief sought.”    INS v. Abudu, 485 U.S. 94, 104-05 (1988).

However, the BIA has an obligation to consider the “record

as a whole,” and it may be an abuse of discretion to deny a

motion to reopen without addressing “all the factors

relevant to [a] petitioner’s claim.”    Ke Zhen Zhao v. U.S.

Dep’t of Justice, 265 F.3d 83, 97 (2d Cir. 2001).

    The BIA abused its discretion in refusing to consider

Xie’s evidence of translation errors.    The BIA found that it

had insufficient evidence to determine whether Xie’s newly

translated transcript was accurate because he submitted only

a transcript and a certificate of translation signed by the
                               7
translator.     The BIA, however, cited no authority in support

of this finding.     Although there is no specific regulation

governing the re-translation of merits hearing testimony,

the regulation governing the translation of foreign language

documents requires “a certification signed by the translator

that must be printed legibly or typed.     [The] certification

must include a statement that the translator is competent to

translate the document, and that the translation is true and

accurate to the best of the translator’s abilities.”      8

C.F.R. § 1003.33.     Xie’s translation certificate complied

with these requirements.     The BIA therefore erred by

declining to consider Xie’s evidence of translation errors.

See Ke Zhen Zhao, 265 F.3d at 97.

    The BIA’s refusal to evaluate Xie’s evidence of

translation errors is particularly troubling given that the

IJ’s concern with the adequacy of the interpreter is

apparent on the record.     After numerous requests by the

interpreter to repeat questions, the IJ asked why the

interpreter was not taking notes and whether he was trained

to do so.     When the interpreter asked the IJ to repeat his

very next question, the IJ confirmed that everyone else in

the room was able to hear him clearly.


                                8
       Moreover, the BIA’s reliance on the IJ’s alternative

corroboration finding does not obviate the need for remand.

See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).

After declining to consider Xie’s evidence of translation

errors, the BIA observed that the IJ found Xie had not

provided reasonably available corroborative evidence, and

concluded that Xie’s new evidence of translation errors did

not alter its decision to agree with the IJ.     However, as

noted above, the agency’s corroboration finding extended

only to Xie’s religious activities in the United States—the

agency did not find that Xie failed to sufficiently

corroborate his past harm in China.     Because an applicant

may establish his eligibility for asylum solely on the basis

of past persecution, 8 C.F.R. § 1208.13(b)(1), we cannot

confidently predict that the agency would reach the same

result absent the BIA’s erroneous failure to consider Xie’s

evidence of translation errors.    See Shunfu Li, 529 F.3d at

150.    Remand is therefore required for the BIA to consider

this evidence.

       For the foregoing reasons, the petition for review in

Dkt. No. 13-2212 (L) is DENIED and the petition for review

in Dkt. No. 13-3527 (Con) is GRANTED.     The case is remanded

to the BIA for further proceedings consistent with this
                               9
order.   As we have completed our review, any stay of removal

that the Court previously granted in these petitions is

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

these petitions is DISMISSED as moot.   Any pending request

for oral argument in these petitions is DENIED in accordance

with Federal Rule of Appellate Procedure 34(a)(2), and

Second Circuit Local Rule 34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




                              10
