    16-2182
    Zhang v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A206 333 845

                             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
    21st day of August, two thousand seventeen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             JON O. NEWMAN,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________

    FANGYONG ZHANG,
             Petitioner,

                        v.                                           16-2182
                                                                     NAC
    JEFFERSON B. SESSIONS, III, UNITED
    STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                        Zhen Liang Li, New York, NY.

    FOR RESPONDENT:                        Chad A. Readler, Acting Assistant
                                           Attorney General; Linda S.
                                           Wernery, Assistant Director;
                                           William C. Minick, Trial Attorney,
                                           Office of Immigration Litigation,
                                           United States Department of
                                           Justice, Washington, DC.
    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 is REMANDED for further proceedings consistent with

this Order.

    Petitioner Fangyong Zhang, a native and citizen of China,

seeks review of a May 26, 2016, decision of the BIA affirming

a January 7, 2016, decision of an Immigration Judge (“IJ”)

denying Zhang’s application for asylum, withholding of removal,

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

Fangyong Zhang, No. A206 333 845 (B.I.A. May 26, 2016), aff’g

No. A206 333 845 (Immig. Ct. N.Y. City Jan. 7, 2016). We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed both

the IJ’s and the BIA’s decisions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

2006). The applicable standards of review are well established.

See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008).

    The governing REAL ID Act credibility standard provides that

the agency must “[c]onsider[] the totality of the

circumstances,” and may base a credibility finding on an
                               2
applicant’s “demeanor, candor, or responsiveness,” the

plausibility of her account, and inconsistencies in her or her

witness’s statements, “without regard to whether” they go “to

the heart of the applicant’s claim.” 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We

defer . . . to an IJ’s credibility determination unless . . . it

is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

     In this case Zhang based her asylum claim on two forced

abortions performed in China. She testified, as the IJ recounted,

“that as a result of a poorly-performed abortion she developed

uterine fibroids, which necessitated a hysterectomy.” Certified

Administrative Record (“CAR”) 46. The IJ determined that she

was not credible, and the BIA upheld this finding.

     We conclude that there are ambiguities in the record that

preclude a fair opportunity for even the deferential review we

are obliged to perform. See Poradisova v. Gonzales, 420 F.3d

70, 77 (2d Cir. 2005) (“[M]inimum level of analysis” required

“if judicial review is to be meaningful.”). First, the IJ relied

on what she deemed an inconsistency between Zhang’s testimony

on cross-examination and redirect. On cross, she was asked

whether she had to go for regular checkups in China to make sure

she was not pregnant, and she answered, “No.” CAR 88. On redirect,
                                3
her lawyer asked, “We know that you did not go to the

gynecological checkups, but were you required to attend any in

the period between 2001 and 2005?” Zhang answered, “Yes, but

I didn’t go.” Id. 92-93.

    That apparent inconsistency precipitated the following

colloquy:

    IJ: “Ma’am, why is it that you told the trial attorney that

you were not required to have gynecological checkups yet you

just told your attorney that you were[?]”

    Ms. Zhang to Judge: “In the village it’s very complicated.

Sometimes I go. Sometimes I don’t go. And they call me on the

phone, because too many people.”

    Judge to Ms. Zhang: “What I’m asking is why did you give

two different answers to the same question?”

    Ms. Zhang to Judge: “Yes, there were regular checkups, but

I didn’t go.”

    The matter was not further pursued, either by the IJ or

counsel.

    On this record, it is unclear whether Zhang was saying that

she was required to have checkups and that she was not required

to have them, or was saying and endeavoring to explain that her

“two answers” meant that she was required to have checkups but

did not go to have them. The ambiguity could and should have
                               4
been readily cleared up.

    Second, the IJ said that Zhang, in her asylum application,

“did not write anything about her husband leaving her because

of [her] surgery,” although she testified that the husband left

her because she could not have any more children. The IJ deemed

the omission about why the husband left significant because “she

should have been able to make the same statements [about the

husband leaving] in a written format.” Id. 47. It is not clear

whether the IJ thought that not stating why the husband left

raised a doubt as to whether the hysterectomy had in fact been

performed. Yet Zhang produced a document on the letterhead of

a California physician stating that “the above named patient

[Zhang] had her uterus removed (hysterectomy). Id. 111.

     Third, it is not clear whether the IJ doubted the

authenticity of the doctor’s document. The IJ characterized the

document as a “form letter,” id. 47, when it is in fact a blank

form with the line for a description of the medical procedure

performed filled in by the physician. The document lists a phone

number for any questions. The IJ concluded that the document

“provides very minimal support for [Zhang’s] claim,” id.,

leaving it unclear whether the IJ was doubting the hysterectomy

or the abortions. And the IJ left it unclear why the physician’s

document provided “minimal support.”
                               5
    Under all the circumstances, the appropriate course is to

remand to the BIA for a remand to the IJ so that the ambiguities

we have identified can be clarified with a renewed questioning

of Ms. Zhang.

    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




                               6
