         11-507-ag
         Wu v. Holder
                                                                                       BIA
                                                                                    Bain, IJ
                                                                               A094 784 348
                          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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSEPH M. McLAUGHLIN,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _______________________________________
12
13       RONG WU,
14                      Petitioner,
15
16                      v.                                      11-507-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               David A. Bredin, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; John S. Hogan, Senior
27                                     Litigation Counsel; Channah M.
28                                     Farber, Trial Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
 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 Rong Wu, a native and citizen of the

 6   People’s Republic of China, seeks review of a January 14,

 7   2011, order of the BIA affirming the October 6, 2009,

 8   decision of Immigration Judge (“IJ”) Quynh Vu Bain, denying

 9   her application for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).       In re

11   Rong Wu, No. A094 784 348 (B.I.A. Jan. 14, 2011), aff’g No.

12   A094 784 348 (Immig. Ct. N.Y. City Oct. 6, 2009).       We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA’s decision.

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

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

20   F.3d 510, 513 (2d Cir. 2009).       We grant the petition for

21   review and remand for further consideration as we cannot

22   conclude that the agency would reach the same result absent

23   the error in its adverse credibility determination.

                                     2
 1       The IJ found that Wu’s failure to disclose the fact

 2   that she was detained and subject to a forcible abortion in

 3   her visa application or during a related consular interview

 4   undermined her credibility.     However, this finding was not

 5   supported by the record because the visa application Wu

 6   completed asked only about criminal arrests and

 7   prosecutions, and the record does not show that the forcible

 8   abortion was related to a criminal proceeding.

 9       Our conclusion that this finding was not supported by

10   the record does not end our inquiry.     Remand is not

11   appropriate if “there is no realistic possibility that,

12   absent the error[] [we have identified], the IJ or BIA would

13   have reached a different conclusion” regarding Wu’s

14   credibility.     Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

15   391, 401 (2d Cir. 2005).     Here, the agency reasonably relied

16   on discrepancies between Wu’s testimony about how she met

17   her fiancé and the fiancé’s statements in his 2006 petition

18   for Wu’s visa and the fact that while Wu was undisputedly in

19   the United States in 2008 the household register from China

20   that she submitted listed her as a member of her father’s

21   household.     These findings are supported by the record, and

22   the agency was not compelled to accept Wu’s explanations


                                     3
 1   regarding the discrepancies between her and her fiance’s

 2   statements about their relationship.   See Majidi v.

 3   Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

 4   do more than offer a plausible explanation for his

 5   inconsistent statements to secure relief; he must

 6   demonstrate that a reasonable fact-finder would be compelled

 7   to credit his testimony.” (internal quotation marks

 8   omitted)).

 9       However, these discrepancies concerned documents and

10   testimony unrelated to Wu’s central claim of past

11   persecution.   Although we recognize that under the REAL ID

12   Act, “an IJ may rely on any inconsistency or omission in

13   making an adverse credibility determination as long as the

14   ‘totality of the circumstances’ establishes that an asylum

15   applicant is not credible,” see Xiu Xia Lin v. Mukasey, 534

16   F.3d 162, 167 (2d Cir. 2008) (quoting 8 U.S.C.

17   § 1158(b)(1)(B)(iii)), because these discrepancies are not

18   central to Wu’s claim we cannot conclude that, absent the

19   IJ’s conclusion that Wu failed to disclose her forced

20   abortion, the agency would necessarily have concluded that

21   the totality of the circumstances supported the adverse

22   credibility determination.   Cf. Cao He Lin, 428 F.3d at 401.


                                   4
 1       We are especially wary of presuming that the agency

 2   would have found these discrepancies sufficient given the

 3   caution to be used in basing credibility determinations on

 4   an alien’s statements or actions in fleeing the country of

 5   persecution, see Siewe v. Gonzales, 480 F.3d 160, 170-71 (2d

 6   Cir. 2007) (pre-REAL ID Act case discussing limits to the

 7   maxim of falsus in uno, falsus in omnibus), and the fact

 8   that the discrepancy in the household register related to a

 9   fact not in dispute, i.e., Wu’s presence in the United

10   States.

11       Accordingly, we remand the case for the agency to

12   reevaluate Wu’s credibility.     Thus we do not address Wu’s

13   argument that the agency should have separately adjudicated

14   her claim for CAT relief.     We express no opinion as to the

15   ultimate outcome on remand.

16       For the foregoing reasons, the petition for review is

17   GRANTED, and the case REMANDED for further proceedings

18   consistent with this order.     As we have completed our

19   review, any pending motion for a stay of removal in this

20   petition is DISMISSED as moot.      Any pending request for oral

21   argument in this petition is DENIED in accordance with


                                     5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

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




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