     17-1143
     Xing v. Whitaker
                                                                                   BIA
                                                                                Hom, IJ
                                                                           A205 083 157
                             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 11th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12   LI LONG XING,
13            Petitioner,
14
15                      v.                                       17-1143
16                                                               NAC
17   MATTHEW G. WHITAKER, ACTING
18   UNITED STATES ATTORNEY GENERAL,
19            Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                    Jan Potemkin, New York, NY.
23
24   FOR RESPONDENT:                    Chad A. Readler, Principal Deputy
25                                      Assistant Attorney General; Holly
26                                      M. Smith, Senior Litigation
27                                      Counsel; Nehal H. Kamani, Trial
28                                      Attorney, Office of Immigration
29                                      Litigation, United States
30                                      Department of Justice, Washington,
31                                      DC.
1          UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is GRANTED.

5          Petitioner Li Long Xing, a native and citizen of the

6    People’s Republic of China, seeks review of an April 5, 2017,

7    decision of the BIA affirming an October 27, 2015, decision

8    of an Immigration Judge (“IJ”) denying Xing’s application for

9    asylum,   withholding     of   removal,     and   relief    under    the

10   Convention Against Torture (“CAT”).         In re Li Long Xing, No.

11   A 205 083 157 (B.I.A. Apr. 5, 2017), aff’g No. A 205 083 157

12   (Immig. Ct. N.Y. City Oct. 27, 2015).        We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15         Under the circumstances of this case, we have reviewed

16   both the IJ’s and BIA’s decisions.           Wangchuck v. Dep’t of

17   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).             We review

18   the   agency’s   legal   conclusions   de    novo   and    its   factual

19   findings under the substantial evidence standard.                Y.C. v.

20   Holder, 741 F.3d 324, 332 (2d Cir. 2013); see also 8 U.S.C.

21   § 1252(a)(4)(B) (“[T]he administrative findings of fact are


                                       2
1    conclusive    unless     any   reasonable         adjudicator     would    be

2    compelled to conclude to the contrary.”).

3        Xing had the burden of establishing a well-founded fear

4    of persecution on account of his practice of Christianity.

5    8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i).                 To do this, he

6    was required to show that he subjectively fears persecution

7    and that his fear is objectively reasonable.                   Ramsameachire

8    v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).                 The objective

9    component    can   be    satisfied       either     by   establishing     “a

10   reasonable possibility that he . . . would be singled out

11   individually for persecution” or “that there is a pattern or

12   practice . . . of persecution of a group of persons similarly

13   situated to the applicant on account of . . . religion.”                   8

14   C.F.R. § 1208.13(b)(2)(iii); see Y.C., 741 F.3d at 332.

15       The agency concluded that Xing did not meet this burden

16   because (1) he did not adequately corroborate his testimony

17   regarding Chinese authorities’ efforts to arrest him for

18   attending an underground church, (2) he did not show that

19   Chinese authorities sought to arrest him based on his church

20   attendance   in    the   United   States,         and    (3)    the   country

21   conditions evidence did not establish a pattern or practice


                                          3
1    of persecution of similarly situated Christians. As discussed

2    below, remand is warranted because the agency neither made an

3    explicit   adverse   credibility     ruling    nor    identified     what

4    additional    corroboration    was   needed,    the    IJ    made   clear

5    factual    errors   and   required   corroboration      of   facts   not

6    related to Xing’s claim, and the BIA failed to acknowledge

7    the IJ’s errors.

8        Under the REAL ID Act, the agency may rely on any

9    inconsistencies between an asylum applicant’s testimony and

10   other record evidence, including border interviews, to

11   conclude that the applicant is not a credible witness.               8

12   U.S.C. § 1158(b)(1)(B)(iii); see Hong Fei Gao v. Sessions,

13   891 F.3d at 67, 77 (2d Cir. 2018).       In the credibility

14   context, the absence of reliable corroborating evidence may

15   further undermines an alien’s testimony that has already

16   been called into question.      Hong Fei Gao, 891 F.3d at 78;

17   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)(per

18   curiam).    The agency may also deny relief on corroboration

19   grounds even where an alien is credible, but in doing so,

20   “[a]n IJ should ’point to specific pieces of missing,

21   relevant documentation’ and ‘show that this documentation


                                      4
1    was reasonably available.’”       Chuilu Liu v. Holder, 575 F.3d

2    193, 198 & n. 5 (2d Cir. 2009) (alterations

3    omitted)(quoting Jin Shui Qui v. Ashcroft, 329 F.3d 140,

4    153 (2d Cir. 2003)); see also 8 U.S.C. § 1158(b)(1)(B)(ii);

5    Alvarado-Carillo v. INS, 251 F.3d 44, 54 (2d Cir. 2001)

6    (“As for more specific corroboration of petitioner’s

7    personal experiences, the BIA here did not identify any

8    particular document or type of document it believed to be

9    missing from the record . . . , much less explain why it

10   would have been ‘reasonable to expect the provision of such

11   materials under its own standards.’” (quoting Diallo v.

12   INS, 232 F.3d 279, 289 (2d Cir. 2000))).

13       In this case, although the IJ made a partial adverse

14   credibility determination, the determination was limited to

15   Xing’s   testimony   that   he   disclosed   a   fear   of   religious

16   persecution to the Border Patrol agent who apprehended him.

17   Generally, in the absence of an explicit adverse credibility

18   determination, an alien is entitled to a presumption of

19   credibility on appeal.      8 U.S.C. § 1158(b)(1)(B)(iii); Yan

20   Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005).             And

21   here, the BIA explicitly assumed Xing’s credibility.


                                       5
1           Accordingly, because the BIA assumed credibility, to rely

2    on Xing’s failure to corroborate, the agency had to identify

3    what the evidence Xing should have presented to corroborate

4    his testimony that Chinese officials sought to arrest him for

5    attending     an     underground        church.          See     8       U.S.C.

6    § 1158(b)(1)(B)(ii).      Although the agency declined to credit

7    the corroborating evidence that Xing submitted (letters from

8    his mother, cousin, and aunt in China), it failed to identify

9    any    additional    evidence   that     would    have   been    reasonably

10   available and should have been provided.                 This failure to

11   identify the missing evidence frustrates judicial review:

12   When    an   IJ    determines    that        corroborating     evidence     is

13   necessary, the applicant must provide the evidence “unless

14   the applicant does not have the evidence and cannot reasonably

15   obtain the evidence.”      Id.     Where the IJ has identified the

16   missing evidence, we may reverse the agency’s decision only

17   if “a reasonable trier of fact is compelled to conclude that

18   such    corroborating    evidence       is    unavailable.”          8   U.S.C.

19   § 1252(b)(4); see Yan Juan Chen v. Holder, 658 F.3d 246, 253

20   (2d Cir. 2011)(per curiam).        If the IJ does not identify what

21   evidence should have been presented, neither the BIA nor this


                                         6
1    Court   can    review   whether   the    evidence    was    reasonably

2    available.

3         In addition to identifying what corroboration could or

4    should have been provided, on remand, the agency should

5    clarify the import of the I-213 given the BIA’s assumption of

6    credibility.    As noted above, Xing’s failure to disclose his

7    fear of religious persecution in the border interview could

8    call into question the credibility of his claim that he left

9    China   because    he   feared    religious    persecution.        See

10   Ramsameachire, 357 F.3d at 181-82.        However, this discrepancy

11   seemingly goes to credibility more than corroboration.             See

12   8   U.S.C.    § 1158(b)(1)(B)(ii)       (allowing    IJ    to   require

13   “evidence that corroborates otherwise credible testimony”);

14   id. § 1158(b)(1)(B) (iii) (listing inconsistencies between an

15   applicant’s    statements   as    a   ground   for    a    credibility

16   determination).

17        Finally, as Xing argues and as the Government concedes,

18   the IJ identified missing corroboration for facts that were

19   not related to Xing’s case.       Specifically, the IJ noted the

20   absence of proof of employment, an arrest and detention, and

21   alleged persecution of an applicant’s wife. But Xing’s


                                       7
1    employment was never at issue, he did not allege that he was

2    arrested or detained, and he is unmarried.        Although the

3    BIA’s decision appears to rely on the correct facts, the BIA

4    failed to either acknowledge the errors or explain why they

5    did not require remand.   See Acharya v. Holder, 761 F.3d 289,

6    301 (2d Cir. 2014) (“When the [BIA] upholds questionable fact-

7    findings, and does so using a different standard, the result

8    may amount to impermissible fact finding by the BIA.”).

9        Given the lack of clarity in the agency’s reliance on

10   credibility,   the   agency’s   failure   to   identify   what

11   corroborating evidence should have been presented, and the

12   factual errors in the IJ’s decision, we remand for further

13   proceedings consistent with this order.     Because remand is

14   warranted on these grounds, we do not reach the agency’s

15   conclusion that Xing did not demonstrate a pattern or practice

16   of persecution.   See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

17   (“As a general rule courts and agencies are not required to

18   make findings on issues the decision of which is unnecessary

19   to the results they reach.”).



                                 8
1       For the foregoing reasons, the petition for review is

2   GRANTED, the BIA’s decision is VACATED, and the case is

3   REMANDED to the BIA.

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




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