     17-3586
     Lin v. Barr
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A201 124 147

                        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 24th day of July, two thousand nineteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            DEBRA ANN LIVINGSTON,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHONGHUANG LIN,
14            Petitioner,
15
16                 v.                                            17-3586
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Richard Tarzia, Belle Mead, NJ.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Holly M. Smith,
27                                    Kohsei Ugumori, Senior Litigation
28                                    Counsel, 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 Zhonghuang Lin, a native and citizen of the

6    People’s Republic of China, seeks review of an October 11,

7    2017, decision of the BIA affirming a February 1, 2017,

8    decision   of    an   Immigration   Judge    (“IJ”)    denying    Lin’s

9    application for asylum and withholding of removal.                In re

10   Zhonghuang Lin, No. A201 124 147 (B.I.A. Oct. 11, 2017), aff’g

11   No. A201 124 147 (Immig. Ct. N.Y. City Feb. 1, 2017).                We

12   assume the parties’ familiarity with the underlying facts and

13   procedural history in this case.

14         Under the circumstances of this case, we have reviewed

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

16   IJ’s burden findings that the BIA declined to reach.             See Xue

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

18   Cir. 2005).      The applicable standards of review are well

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

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

21   One Year Bar

22         Under 8 U.S.C. § 1158(a)(2)(B), an alien is ineligible

23   for   asylum    “unless   the   alien   demonstrates   by   clear   and
                                         2
1    convincing   evidence      that    the    application   has   been   filed

2    within 1 year after the date of the alien’s arrival in the

3    United   States.”          Our    jurisdiction    to    review   findings

4    regarding the timeliness of an asylum application is limited

5    to “constitutional claims or questions of law.”                  8 U.S.C.

6    § 1252(a)(2)(D); see 8 U.S.C. § 1158(a)(3).             The agency erred

7    as a matter of law in its determination that Lin failed to

8    satisfy his burden of proving that he arrived in the United

9    States within the year prior to filing his application in

10   February 2011.

11       The agency errs as a matter of law when it “totally

12   overlook[s]”     or   “seriously         mischaracterize[s]”     material

13   facts.   Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009).

14   The IJ incorrectly determined that Lin failed to provide

15   details of the circumstances of his arrival in the United

16   States when Lin testified extensively and provided specific

17   details of his travels from China to New York.                The IJ also

18   erred in finding that Lin’s sister-in-law’s corroborating

19   affidavit was not based on personal knowledge regarding Lin’s

20   arrival because she attested to having picked Lin up after he

21   arrived in New York with the assistance of a human trafficker.

22   Otherwise,     the    IJ    relied    on    his   adverse     credibility

23   determination, which as discussed below, is problematic.
                                   3
1           Accordingly, the agency erred as a matter of law in

2    pretermitting Lin’s asylum application as untimely.                          See

3    8 U.S.C. §§ 1158(a)(2)(B), 1252(a)(2)(D); Mendez, 566 F.3d at

4    323.

5    Asylum and Withholding: Adverse Credibility Determination

6           “Considering the totality of the circumstances, and all

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

8    determination on the demeanor, candor, or responsiveness of

9    the applicant . . . , the consistency between the applicant’s

10   or witness’s written and oral statements . . . , the internal

11   consistency of each such statement, the consistency of such

12   statements with other evidence of record . . . without regard

13   to whether an inconsistency, inaccuracy, or falsehood goes to

14   the heart of the applicant’s claim, or any other relevant

15   factor.”      8 U.S.C.        § 1158(b)(1)(B)(iii);       Xiu   Xia    Lin    v.

16   Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).                   The agency’s

17   determination that Lin was not credible as to his claim that

18   he   was   detained     and    beaten   in   China   on   account      of    his

19   religious practice is not supported by substantial evidence.

20          Although   the   agency     reasonably    found     Lin’s      demeanor

21   problematic given his hesitant and evasive testimony, see

22   8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d

23   77, 81 n.1 (2d Cir. 2005), the agency’s findings that Lin’s
                                  4
1    testimony was inconsistent are not supported by the record.

2    First, Lin’s affirmative response to his attorney’s leading

3    question about whether he came to the United States to gain

4    independence from his family and his testimony that he came

5    to the country for fear of persecution were not inconsistent

6    as those statements were not mutually exclusive.            Further,

7    Lin’s testimony that police beat him with a baton was not

8    inconsistent   with   his   application     statement    that   police

9    slapped him in the face and hit him with a baton.           Contrary

10   to the IJ’s finding that Lin submitted a letter from a fellow

11   church member in China, but inconsistently testified that he

12   stopped all communication with members of his unregistered

13   church after his release from detention, Lin testified that

14   he had maintained contact with one or two church members (he

15   testified that he had no further contact with government

16   cadres).

17          The IJ also erroneously found that “Lin took pains in

18   his testimony to indicate that his congregation conducted its

19   meetings in a clandestine manner in order to avoid police

20   detection and that its members considered it ‘very important’

21   to keep all information about the congregation secret,” and

22   then    testified   inconsistently   that    he   and   other   church

23   members passed out religious flyers on the street.          The IJ’s
                                   5
1    characterization of Lin’s testimony is flawed.         Lin testified

2    that he told his classmates that he attended church and his

3    only testimony that his church operated in secret resulted

4    from his attorney’s repeated leading questions.             Therefore,

5    given his testimony that he did not hide his religious

6    practice from his classmates, his claim that he passed out

7    flyers on the street was not incongruent.

8           The only discrepancy that has support in the record is a

9    minor date discrepancy regarding whether a hotel receipt—used

10   to establish that Lin was in China within one year of filing

11   his asylum application—was dated February or March 2010.

12   However, such an isolated and minor date discrepancy “need

13   not be fatal to credibility.”       Diallo v. INS, 232 F.3d 279,

14   288 (2d Cir. 2000).

15          Accordingly, the only error-free basis for questioning

16   Lin’s credibility was his demeanor, which we have stated may

17   alone be insufficient to support an adverse credibility.

18   See, e.g., Feng Lin v. Holder, 433 F. App’x 39, 40 (2d Cir.

19   2011) (summary order).     Although the IJ did not err in finding

20   that    Lin’s   corroborating    evidence   was     insufficient     to

21   rehabilitate credibility, given the errors in the adverse

22   credibility     determination,    it   is   not   clear     that    his

23   credibility     needed   rehabilitating.      See    Biao    Yang    v.
                                      6
1    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007); cf. Wei Sun v.

2    Sessions,    883    F.3d   23,    31       (2d   Cir.   2018)   (discussing

3    procedural safeguards the IJ must follow before relying on

4    lack of corroboration to deny relief to a credible applicant).

5    Because     of     the   significant         errors     in   the   agency’s

6    inconsistency      findings,     we    cannot     “confidently     predict”

7    whether the agency would reach the same result absent the

8    errors and remand is required.               Xiao Ji Chen v. U.S. Dep’t

9    of Justice, 471 F.3d 315, 339 (2d Cir. 2006).

10       For the foregoing reasons, the petition for review is

11   GRANTED.    As we have completed our review, any stay of removal

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.       Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

18                                     FOR THE COURT:
19                                     Catherine O’Hagan Wolfe
20                                     Clerk of Court




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