    11-5348
    Zhu v. Holder
                                                                                 BIA
                                                                          Nelson, IJ
                                                                        A089 252 283
                     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 23rd day of January, two thousand fourteen.

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

    CHANG QIANG ZHU, AKA HUA XING LIN,
             Petitioner,

                    v.                                     11-5348
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Wendy Tso, New York, New York.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; Daniel E. Goldman,
                                  Senior Litigation Counsel; Jonathan
                                  F. Potter, 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, the decision below is VACATED, and the matter is
REMANDED for further proceedings not inconsistent with this
order.

     Chang Qiang Zhu, a native and citizen of the People’s
Republic of China, seeks review of a November 30, 2011,
decision of the BIA affirming the August 27, 2009, decision
of Immigration Judge (“IJ”) Barbara A. Nelson, which denied
his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Chang Qiang Zhu, No. A089 252 283 (B.I.A. Nov. 30, 2011),
aff’g No. A089 252 283 (Immig. Ct. N.Y. City Aug. 27, 2009).
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 IJ’s decision as supplemented and modified by the BIA.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271
(2d Cir. 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
applications such as Zhu’s, governed by the amendments to
the Immigration and Nationality Act by the REAL ID Act of
2005, Matter of S-B-, 24 I. & N. Dec. 42, 45 (BIA 2006), the
agency may, “[c]onsidering the totality of the circumstances
. . . base a credibility determination on the demeanor,
candor, or responsiveness of the applicant[, and] . . . the
consistency [of the applicant’s] statements with other
evidence of record . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008) (per curiam).

     Although 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 a ruling,
Xiu Xia Lin, 534 F.3d at 167, we remand because given the
errors in what the IJ characterized as the “[m]ore
significant” bases of the adverse credibility determination,
we cannot conclude that the agency would reach the same
decision on remand considering the totality of the
circumstances. See Cao He Lin v. U.S. Dep’t of Justice, 428
F.3d 391, 406-07 (2d Cir. 2005).

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     The agency based its credibility determination
primarily on Zhu’s testimony concerning his telling of the
story of the biblical figure Paul to Chinese authorities
during his detention. The agency found that Zhu’s demeanor
while testifying was “hesitant” and “evasive” and his
account of the story was inconsistent. The record, however,
reveals that Zhu’s demeanor began to suffer only when the IJ
required him to provide highly detailed information
regarding the story of Paul. Indeed, while Zhu was able to
explain that Paul was a disciple of Jesus Christ who
persecuted Christians, and later converted to Christianity
after being blinded on the road to Damascus, he struggled to
answer more detailed questions such as what form Paul’s
persecution of Christians took or in what year Paul
converted to Christianity. By inquiring of Zhu and
expecting him to provide this extensive detail, virtually
all of which he testified to accurately in any event, the IJ
contravened our holding in Rizal v. Gonzales, 442 F.3d 84,
90 (2d Cir. 2006), which prohibits relying on a petitioner’s
lack of doctrinal knowledge as the basis for an adverse
credibility determination or denying relief.

     Although the agency indicated, and the government now
asserts, that the adverse credibility determination was
based not on Zhu’s failure to remember the details of the
story of Paul, but rather on his inability correctly to
recall what he told the officers in China and his poor
demeanor in recalling those events, this categorization is
not supported by the record. First, to the extent Zhu
exhibited questionable demeanor during this line of inquiry
by the IJ, the change in demeanor coincides with the IJ’s
demand for detailed information about the story of Paul, not
about what he told the officers, and thus was triggered by a
line of inquiry inconsistent with our holding in Rizal. See
Rizal, 442 F.3d at 90. Second, to the extent the agency
determined that Zhu’s testimony was inconsistent with
respect to the story of Paul, it failed to identify what
inconsistencies it was considering, nor did the agency give
Zhu an opportunity to explain any so-called inconsistencies.
Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir. 2006) (the
agency may not rest an adverse credibility determination on
non-obvious inconsistencies without first giving the
applicant a chance to explain the inconsistency).



                             3
     Furthermore, the two additional findings the agency
relied on to support the adverse credibility determination
are insufficient on their own to support an adverse
credibility determination under a totality of the
circumstances. First, the agency’s finding that Zhu lacked
a credible demeanor while testifying about why he enjoyed
attending Christian gatherings is not apparent from the
record, which shows that while Zhu struggled to understand
the IJ’s questions, he provided responsive, though
unspecific, answers. Without what the IJ perceived to be
problematic testimony during her questioning of petitioner
regarding the story of Paul, this minor incident would not
be enough, under the totality of the circumstances, to
support an adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167. In addition, while the agency noted
that Zhu provided an inconsistent account of the dates that
the police originally began looking for him, the record
demonstrates that, at most, Zhu was confused by the
question, as he immediately corrected the date once he
understood what was asked. Given Zhu’s quick correction of
that date, especially in light of the other significant
problems we have identified with regard to the credibility
determination discussed above, this minor inconsistency (if
it is an inconsistency at all) is insufficient to support
the adverse credibility determination. Id.

     Because the IJ’s adverse credibility determination
relied primarily on a determination at odds with Rizal v.
Gonzales, 442 F.3d at 90, and because the other credibility
findings are insufficient on their own to uphold the
determination, we remand for further proceedings regarding
Zhu’s eligibility for relief. See Cao He Lin, 428 F.3d at
406-07. Moreover, it is unclear whether, as the government
argues, Zhu has fully exhausted his claim that there is a
pattern or practice of persecuting Christians in China. Zhu
argued before the BIA, albeit briefly, that the IJ erred in
failing to consider his pattern or practice claim, but
neither the IJ or the BIA fully considered that claim or
addressed whether it was sufficiently raised. If upon
remand Zhu is found credible as to his practice of
Christianity in China or in the United States, or both, the
agency should either address his claim that there is a
“pattern or practice” of persecution of Christians in China
or explain why it was not sufficiently presented, to the
extent that reaching this claim is necessary to resolve his
eligibility for asylum or withholding of removal. See 8
C.F.R. § 1208.13(b)(2)(iii).

                             4
     For the foregoing reasons, the petition for review is
GRANTED, the decision below is VACATED, and the matter is
REMANDED for further proceedings not inconsistent with this
order.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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