     17-1425
     Ye v. Barr
                                                                                   BIA
                                                                              Cheng, IJ
                                                                           A206 061 653

                       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 4th day of June, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT D. SACK,
 8            GERARD E. LYNCH,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   YANJUN YE,
14            Petitioner,
15
16                v.                                             17-1425
17                                                               NAC
18   WILLIAM P. BARR,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Thomas V. Massucci, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Kiley Kane,
27                                    Senior Litigation Counsel; Lynda
28                                    A. Do, Attorney, Office of
29                                    Immigration Litigation, United
30                                    States Department of Justice,
31                                    Washington, 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    Yanjun    Ye,   a    native    and   citizen   of    the

6    People’s Republic of China, seeks review of an April 13, 2017,

7    decision of the BIA affirming an October 5, 2015, decision of

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

9    asylum,   withholding   of    removal,     and     relief   under     the

10   Convention Against Torture (“CAT”).         In re Yanjun Ye, No. A

11   206 061 653 (B.I.A. Apr. 13, 2017), aff’g No. A 206 061 653

12   (Immig. Ct. N.Y. City Oct. 5, 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 BIA’s and IJ’s decisions.        See Zaman v. Mukasey, 514

17   F.3d 233, 237 (2d Cir. 2008).          The applicable standards of

18   review are well established.          See 8 U.S.C. § 1252(b)(4)(B);

19   Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).               In

20   making    a   credibility    determination,         the   agency      must

21   “[c]onsider[] the totality of the circumstances” and may base
                                       2
1    a   finding     on   the          applicant’s            “demeanor,    candor,      or

2    responsiveness, . . .                   the inherent plausibility of the

3    applicant’s     .    .        .    account,”            inconsistencies     in     the

4    applicant’s statements or between her statements and other

5    evidence or witness statements, “without regard to whether an

6    inconsistency, inaccuracy, or falsehood goes to the heart of

7    the applicant’s claim, or any other relevant factor.”                                8

8    U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d

9    162, 163-64, 166-67 (2d Cir. 2008).                        “We defer . . . to an

10   IJ’s credibility determination unless, from the totality of

11   the circumstances, it is plain that no reasonable fact-finder

12   could make such an adverse credibility ruling.”                        Xiu Xia Lin,

13   534 F.3d at 167.       As discussed below, we cannot conclude that

14   substantial     evidence           supports          the    adverse    credibility

15   determination.

16        Although    the     IJ       may    rely      on    “demeanor,    candor,     and

17   responsiveness”          in       assessing             credibility,    8       U.S.C.

18   § 1158(b)(1)(B)(iii),             and    we       generally   defer    to   a    fact-

19   finder’s assessment of demeanor, see Majidi v. Gonzales, 430

20   F.3d 77, 81 n.1 (2d Cir. 2005), the IJ’s finding is, at least

21   in part, contradicted by the record.                        The IJ found that Ye
                                                   3
1    was not responsive when asked why she was a Christian.                     But

2    the transcript reveals that Ye responsively answered the

3    question by stating, “Because I believe in God.”                     The fact

4    that she gave additional answers when repeatedly pressed by

5    the Government to answer the same question does not undermine

6    her credibility.        Because a substantial part of the IJ’s

7    demeanor finding is contradicted by the record, it provides

8    little support for the adverse credibility determination.

9    Cf. Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

10   Cir. 2006) (“We can be still more confident in our review of

11   observations about an applicant’s demeanor where . . . they

12   are    supported      by     specific      examples        of    inconsistent

13   testimony.”).

14         The   agency    also    erred       in   finding     Ye    inconsistent

15   regarding    the     dates   and   length      of    her   detention.      Ye

16   maintained that, in 2012, she was detained from August 19 to

17   September 4, which she said totaled 15 days.                    The IJ simply

18   disagreed    with     Ye’s    calculation       of   the    length    of   her

19   detention.    This disagreement does not render Ye’s testimony

20   inconsistent, particularly given her explanation that she was

21   counting the full days of her detention, not the day of her
                                           4
1    arrest or the morning of her release.           The IJ’s misconstruing

2    of   this   point   infected   her       assessment   of   Ye’s   medical

3    evidence, which was consistent with Ye’s testimony that she

4    was released from detention on September 4.

5         Finally,   the   agency   erred       in   finding    discrepancies

6    between Ye’s testimony and her documentary evidence.              The IJ

7    made three findings: the household register omitted Ye’s

8    family’s identification as Christian; the household register

9    should have listed a current address; and the fine receipt

10   should have listed Ye’s parents as the payers of the fine,

11   rather than Ye who was the person fined.              However, there is

12   no evidence in the record of China’s recordkeeping practices

13   relevant to either household registers or fine receipts.

14   “[A]bsent record evidence of practices in foreign countries,

15   the IJ must not speculate as to the existence or nature of

16   such practices.”      Cao He Lin v. U.S. Dep’t of Justice, 428

17   F.3d 391, 405 (2d Cir. 2005).

18        Given the agency’s significant errors regarding Ye’s

19   demeanor, testimony, and documentary             evidence, we remand

20   because “we cannot confidently predict that the IJ would reach

21   the same conclusion in the absence of these deficiencies.”
                                          5
1   Hong Fei Gao, 891 F.3d at 77 (internal quotation marks

2   omitted).

3       For the foregoing reasons, the petition for review is

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

5   REMANDED for further proceedings consistent with this order.

6                              FOR THE COURT:
7                              Catherine O’Hagan Wolfe,
8                              Clerk of Court




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