     17-850
     Lin v. Whitaker
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A205 583 081
                            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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 19th day of December, two thousand eighteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            PETER W. HALL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   SHIJING LIN, AKA XUE JING LIN,
14            Petitioner,
15
16                     v.                                        17-850
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Joshua Bardavid, New York, NY.
24
25   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
26                                     Attorney General, Civil Division;
27                                     Song E. Park, Senior Litigation
28                                     Counsel, Office of Immigration
29                                     Litigation; Matt A. Crapo, Trial
30                                     Attorney, Office of Immigration
31                                     Litigation, United States
32                                     Department of Justice, Washington,
33                                     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 Shijing Lin, a native and citizen of the

6    People’s Republic of China, seeks review of a March 15, 2017,

7    decision of the BIA affirming a July 26, 2016, decision of an

8    Immigration   Judge   (“IJ”)   denying   asylum,    withholding    of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).   In re Shijing Lin, No. A205 583 081 (B.I.A. Mar.

11   15, 2017), aff’g No. A205 583 081 (Immig. Ct. N.Y. City Jul.

12   26, 2016).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       We have reviewed the IJ’s decision as modified by the

15   BIA decision, i.e., minus the adverse credibility finding

16   that the BIA did not assess and the BIA’s rejection of the

17   IJ’s finding that there was available evidence to document

18   Lin’s alleged arrest, detention, and fine.         See Xue Hong Yang

19   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

20   The applicable standards of review are well established.          See

21   8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 193,

22   196 (2d Cir. 2009).


                                      2
1         “The testimony of the applicant may be sufficient to

2    sustain the applicant’s burden without corroboration, but

3    only if the applicant satisfies the trier of fact that the

4    applicant’s testimony is credible, is persuasive, and refers

5    to   specific   facts    sufficient    to     demonstrate   that   the

6    applicant is a refugee.”      8 U.S.C. § 1158(b)(1)(B)(ii); see

7    also Chuilu Liu, 575 F.3d at 196-97.        “In determining whether

8    the applicant has met [his] burden, the trier of fact may

9    weigh the credible testimony along with other evidence of

10   record.    Where   the    trier   of   fact    determines   that   the

11   applicant should provide evidence that corroborates otherwise

12   credible testimony, such evidence must be provided unless the

13   applicant does not have the evidence and cannot reasonably

14   obtain the evidence.”     8 U.S.C. § 1158(b)(1)(B)(ii).

15        Because the BIA did not reach the IJ’s adverse

16   credibility determination, we presume Lin to be credible.

17   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18   Given this presumption of credibility, the BIA should have

19   identified why Lin’s testimony was lacking to the extent

20   that corroboration was necessary.       See 8 U.S.C.

21   § 1158(b)(1)(B)(ii); Poradisova v. Gonzales, 420 F.3d 70,

22   77 (2d Cir. 2005) (“We require a certain minimum level of


                                       3
1    analysis from the IJ and BIA opinions denying asylum . . .

2    if judicial review is to be meaningful.”).   Accordingly, we

3    remand for further explanation as to why corroboration was

4    required.

5        In addition, given the BIA’s conclusion that there was

6    likely no available corroboration for Lin’s arrest,

7    detention, and fine, we find insufficient grounds for the

8    BIA’s denial of relief on corroboration grounds as

9    currently explained.   There is little support for the

10   agency’s conclusion that documentary evidence of medical

11   treatment is reasonably available because the record does

12   not support the agency’s conclusion that Lin received any

13   treatment.   There is no reference to medical treatment in

14   Lin’s application, his direct testimony, or his supporting

15   evidence.    The only reference to any medical treatment came

16   when the IJ questioned Lin directly.   When asked by the IJ

17   if he saw a doctor, Lin said “[y]es, doctor for injury, um-

18   hum.”   But when the IJ asked why Lin did not get a letter

19   from the doctor, Lin said that “the injury doctor just told

20   the person to come and take a look at me.    Took a look at

21   me and then just went away.”   It is unclear who “the

22   person” was or if Lin actually visited a doctor or a


                                    4
1    hospital.   Given this lack of clarity, the agency did not

2    sufficiently explain why a doctor’s affidavit or hospital

3    records were reasonably available.   See 8 U.S.C.

4    § 1158(b)(1)(B)(ii); Poradisova, 420 F.3d at 77.

5        The BIA also failed to assess the country conditions

6    evidence in light of Lin’s presumptively credible

7    testimony. The BIA determined that the background evidence

8    was generalized and insufficient to demonstrate that Lin

9    would be singled out for persecution, but conceded that it

10   showed raids on unregistered churches and detention of

11   leaders and missionaries.   Assuming the credibility of

12   Lin’s testimony and given both the BIA’s conclusion that

13   evidence of his arrest and detention was not reasonably

14   available, and the problem discussed above with the

15   agency’s demand for medical evidence, the BIA missed a step

16   in its analysis.   Given the credible testimony and the lack

17   of available corroboration, the BIA failed to explain why

18   Lin did not establish past persecution and thus why there

19   was no resulting presumption of future persecution.   See 8

20   C.F.R. § 1208.13(b)(1) (presumption of future persecution

21   applies where applicant has established past persecution).

22


                                   5
1        We remand for further consideration of Lin’s claims

2    either in light of the IJ’s adverse credibility determination

3    or with explanation of why Lin failed to meet his burden of

4    proof if his testimony is presumed credible.

5        For the foregoing reasons, the petition for review is

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

7    REMANDED for further proceedings consistent with this order.

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10




                                  6
