    14-3523
    Li v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A087 787 895

                       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.

         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
    26th day of April, two thousand sixteen.

    PRESENT:
             DENNIS JACOBS,
             PETER W. HALL,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    XUE HUA LI,
             Petitioner,

                  v.                                                 14-3523
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Jim Li, Flushing, New York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Daniel
                                         E. Goldman, Senior Litigation
                                         Counsel; Nicole N. Murley, 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, and the case REMANDED for further proceedings.

    Petitioner Xue Hua Li, a native and citizen of the People’s

Republic of China, seeks review of an August 29, 2014, decision

of the BIA, affirming a September 24, 2012, decision of an

Immigration Judge (“IJ”) denying Li’s application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).   In re Xue Hua Li, No. A087 787 895 (B.I.A.

Aug. 29, 2014), aff’g No. A087 787 895 (Immig. Ct. N.Y. City

Sept. 24, 2012).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA, i.e., minus the basis for

denying relief that the BIA found waived (the IJ’s pretermission

of asylum).   See Xue Hong Yang v. U.S. Dep’t of Justice, 426

F.3d 520, 522 (2d Cir. 2005).   Li expressly waives any challenge

to the agency’s denial of CAT relief.     The only issue before

us is the agency’s denial of withholding of removal for lack

of corroboration notwithstanding that the IJ found “that

respondent was a credible witness about her forcible abortion.”

The applicable standards of review are well established.       8

                                2
U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 193,

194-96 (2d Cir. 2009).

        “While consistent, detailed, and credible testimony may

be     sufficient     to   carry    the   alien’s    burden,     evidence

corroborating h[er] story, or an explanation for its absence,

may be required where it would reasonably be expected.”           Diallo

v. INS, 232 F.3d 279, 285 (2d Cir. 2000); see also 8 U.S.C. §

1231(b)(3)(C) (citing § 1158(b)(1)(B)(ii)).           Before denying a

claim solely based on an applicant’s failure to provide

corroborating evidence, the IJ must, either in his decision or

otherwise in the record, (1) identify the specific evidence

missing    and    explain    why    it    was   reasonably     available,

(2) provide      an   opportunity   to    explain   the   omission,   and

(3) assess any explanation given.          See Chuilu Liu, 575 F.3d at

198.

       Here, the IJ determined that Li testified credibly, but the

IJ unreasonably required her to provide a hospital certificate

as evidence of her forced abortion.         This Court and the BIA have

held that an applicant’s credibility may be damaged by the

submission of an abortion certificate as evidence of a forced

abortion because U.S. State Department reports inform us that

hospitals in China issue such certificates for voluntary

abortions only.       See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d

                                     3
Cir. 2006); see also Cao He Lin v. U.S. Dep’t of Justice, 428

F.3d 391, 405 (2d Cir. 2005).    The agency thus erred in finding

such evidence reasonably available.      See Cao He Lin, 428 F.3d

at 405.

    Furthermore, the agency did not properly evaluate Li’s

explanations   for   the   missing    evidence,   confusing   Li’s

explanations as to why she did not have evidence of her pregnancy

or subsequent fertility treatments as her explanation for her

lack of corroborating evidence of her abortion.    See id. at 403.

Because we cannot confidently predict that the agency would have

made the same decision absent the identified errors, remand is

required.   See id. at 395.

    For the foregoing reasons, the petition for review is

GRANTED, and the case is REMANDED for further proceedings

consistent with this order.

                                FOR THE COURT:
                                Catherine O=Hagan Wolfe, Clerk




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