    12-1465
    Zheng v. Holder
                                                                                    BIA
                                                                               Cheng, IJ
                                                                            A095 764 339
                        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.

         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 24th day of July, two thousand thirteen.

    PRESENT:
                      JON O. NEWMAN,
                      GERARD E. LYNCH,
                      SUSAN L. CARNEY,
                           Circuit Judges.

    _____________________________________

    QIUYUN ZHENG,
             Petitioner,

                       v.                                   12-1465
                                                            NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                 Farah Loftus, Century City, CA.

    FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
                                    Attorney General; Francis Fraser,
                                    Assistant Director; Kate D. Balaban,
                                    Trial Attorney, Office of
                                    Immigration Litigation, United
                                    States Department of Justice,
                                    Washington, D.C.
    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 matter is remanded for further

consideration.

    Qiuyun Zheng, a native and citizen of the People’s

Republic of China, seeks review of a March 15, 2012,

decision of the BIA affirming the May 11, 2010, decision of

Immigration Judge (“IJ”) Mary M. Cheng, denying his

application for asylum, withholding of removal, and relief

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

Zheng, No. A095 764 339 (B.I.A. Mar. 15, 2012), aff’g No.

A095 764 339 (Immig. Ct. N.Y. City May 11, 2010).     We assume

the parties’ familiarity with the underlying facts and

procedural history in this case.

    Under the circumstances of this case, we have reviewed

the decision of the IJ as supplemented by the BIA.     See Yan

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

applicable standards of review are well-established.     See

8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

562 F.3d 510, 513 (2d Cir. 2009).

    For applications such as Zheng’s, governed by the

amendments made to the Immigration and Nationality Act by

the REAL ID Act of 2005, the agency may, considering the


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totality of the circumstances, base a credibility finding on

the applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his account, and inconsistencies in his

statements, without regard to whether they go “to the heart

of the . . . claim.”   See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

Cir. 2008).   We will “defer to an IJ’s credibility

determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make” such a ruling.   Xiu Xia Lin, 534 F.3d at 167.

    Although the IJ based her credibility finding on some

portions of Zheng’s testimony that were inconsistent and

some inconsistencies between his testimony and the

documentary evidence, she also relied on two related

inconsistencies in his testimony that are trivial.      First,

she noted that at the hearing on May 11, 2010, Zheng

testified on direct examination that his fiancée’s abortion

occurred on October 18, 2008, and on cross-examination that

it occurred on October 19, 2008.   Second, the IJ noted that

Zheng testified on direct examination that his fiancée came

home from the hospital on October 20, and on cross-

examination that she came home on October 18.    When


                              3
confronted with these inconsistencies, he testified that the

October 18 date for both events was correct.

    These one- and two-day inconsistencies, which Zheng

promptly corrected, in testimony given more than a year and

one half after the events, are too trivial to lend support

to a finding that Zheng lacked credibility. See Xiu Xia Lin,

534 F.3d at 166 (“We must assess whether the IJ has provided

specific, cogent reasons for the adverse credibility finding

. . . .”) (internal quotation marks omitted).   In view of

the fact that the other inconsistencies noted by the IJ are

at best of only marginal significance, we conclude that a

remand is warranted for reconsideration of Zheng’s

credibility, without regard to the two items concerning the

October dates.   And, although we have no doubt that the IJ

could reconsider the matter impartially, putting these two

items out of her consideration, we believe there is a risk

of an appearance of partiality if the same IJ reconsiders

the matter.   We therefore direct that reconsideration occur

at a new hearing before a different IJ.




                              4
    For the foregoing reasons, the petition for review is

GRANTED, and the matter is remanded for reconsideration

before a different IJ.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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