     18-3854
     Zhang v. Barr
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A205 036 171
                          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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 8th day of July, two thousand twenty.
 5
 6   PRESENT:
 7            DENNY CHIN,
 8            RICHARD J. SULLIVAN,
 9            WILLIAM J. NARDINI,
10                 Circuit Judges.
11   _____________________________________
12
13   LIANSHA ZHANG,
14            Petitioner,
15
16                   v.                                          18-3854
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  H. Danny Kao, Kao & Associates PC
24                                    Flushing, NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant
27                                    Attorney General; Jessica E.
28                                    Burns, Senior Litigation Counsel;
29                                    Rosanne M. Perry, Trial Attorney,
30                                    Office of Immigration Litigation,
 1                                  United States Department of
 2                                  Justice, Washington, DC.
 3
 4         UPON DUE CONSIDERATION of this petition for review of a

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

 6   ORDERED, ADJUDGED, AND DECREED that the petition for review

 7   is GRANTED.

 8         Petitioner Liansha Zhang, a native and citizen of the

 9   People’s Republic of China, seeks review of a November 29,

10   2018, decision of the BIA affirming an October 20, 2017,

11   decision   of    an   Immigration      Judge    (“IJ”)   denying      her

12   application for asylum, withholding of removal, and relief

13   under the Convention Against Torture (“CAT”).            In re Liansha

14   Zhang, No. A205 036 171 (B.I.A. Nov. 29, 2018), aff’g No.

15   A205 036 171 (Immig. Ct. N.Y.C. Oct. 20, 2017).              We assume

16   the   parties’   familiarity    with    the    underlying    facts   and

17   procedural history.

18         Under the circumstances of this case, the Court reviews

19   the IJ’s decision as modified by the BIA, i.e., minus the

20   IJ’s finding that the BIA declined to rely on.            See Xue Hong

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

22   2005).     The    applicable    standards      of   review   are     well

23   established.     See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.

24   Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

                                       2
 1   Adverse Credibility Determination

 2       “Considering the totality of the circumstances, and all

 3   relevant factors, a trier of fact may base a credibility

 4   determination on . . . the consistency between the applicant’s

 5   or witness’s written and oral statements . . . , [and] the

 6   internal consistency of each such statement . . . without

 7   regard to whether an inconsistency, inaccuracy, or falsehood

 8   goes to the heart of the applicant’s claim . . . .”                  8 U.S.C.

 9   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534

10   F.3d 162, 163–64 (2d Cir. 2008).           The agency erred in finding

11   Zhang not credible as to her claims that Chinese family

12   planning officials forced her to terminate pregnancies in

13   1987 and 1991, and that the police detained and beat her

14   because she complained about being fired from her government

15   job after a workplace injury.

16       The agency erred in finding Zhang’s testimony that she

17   received treatment for her workplace injury at only one

18   hospital    inconsistent      with       her    submission      of   medical

19   certificates from two hospitals.           As she testified, the later

20   certificate     does   not   state   that      she   received    treatment.

21   Rather,    it   indicates    that    it   was    obtained    months    after

22   treatment for purposes of certifying that she was disabled


                                          3
 1   due to a workplace injury.        Further, the agency erred in

 2   relying on omissions from Zhang’s asylum application of facts

 3   that    were    “supplementary,    not     contradictory”      to    her

 4   testimony.      Hong Fei Gao, 891 F.3d at 79.             Accordingly,

 5   because each of the agency’s cited bases for its conclusion

 6   that    Zhang   was   not   credible     was   either    erroneous   or

 7   insufficient to support such a conclusion when considering

 8   the totality of the circumstances, the agency erred in denying

 9   relief on that basis.        See 8 U.S.C. § 1158(b)(1)(B)(iii);

10   Hong Fei Gao, 891 F.3d at 82.

11   Burden Finding

12          Although the agency made an alternate burden finding,

13   that finding is also infected with error that requires remand.

14   “The testimony of the applicant may be sufficient to sustain

15   the applicant’s burden without corroboration, but only if the

16   applicant satisfies the trier of fact that the applicant’s

17   testimony is credible, is persuasive, and refers to specific

18   facts sufficient to demonstrate that the applicant is a

19   refugee.”       8 U.S.C.    § 1158(b)(1)(B)(ii);        see   also   id.

20   § 1231(b)(3)(C); Wei Sun v. Sessions, 883 F.3d 23, 28 (2d

21   Cir. 2018).     “In determining whether the applicant has met

22   the applicant’s burden, the trier of fact may weigh the


                                       4
 1   credible   testimony    along    with    other   evidence   of    record.

 2   Where the trier of fact determines that the applicant should

 3   provide    evidence    that     corroborates      otherwise      credible

 4   testimony,   such     evidence    must    be     provided   unless    the

 5   applicant does not have the evidence and cannot reasonably

 6   obtain the evidence.”     8 U.S.C. § 1158(b)(1)(B)(ii); see also

 7   id. § 1231(b)(3)(C).     The agency’s finding that Zhang failed

 8   to adequately corroborate her claims is not supported by the

 9   record.

10       The IJ erred in finding that Zhang failed to submit

11   documentary evidence of her pregnancies when she submitted

12   two abortion certificates issued on the dates she claimed to

13   have been forced to terminate those pregnancies.            The IJ also

14   found that Zhang submitted evidence that she had obtained

15   three voluntary abortions before her fourth allegedly forced

16   abortion and that she had terminated her last pregnancy only

17   after being diagnosed with uterine cancer; but Zhang only

18   testified and presented evidence of two abortions and she did

19   not allege, much less document, two additional abortions or

20   a cancer diagnosis.      Further, the IJ erred in finding that

21   Zhang failed to provide any evidence of her factory employment

22   given that her household registry lists her as a factory


                                        5
 1   worker.     Although the IJ correctly identified other missing

 2   evidence—corroboration that she had an IUD removed before

 3   becoming pregnant, affidavits from her ex-husband and her

 4   daughter,    or   evidence   that       she   complained   about   being

 5   terminated from her job—we cannot confidently predict that

 6   the agency would reach the same result absent the egregiously

 7   erroneous findings regarding the other evidence in the record

 8   and the central facts of her claim.           See Xiao Ji Chen v. U.S.

 9   Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006) (providing

10   that remand is futile when Court “can confidently predict

11   that the agency would reach the same decision absent the

12   errors that were made” (internal quotation marks omitted)).

13       For the foregoing reasons, the petition for review is

14   GRANTED.    All pending motions and applications are DENIED and

15   stays VACATED.

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




                                         6
