         12-3387
         Li v. Holder
                                                                                       BIA
                                                                                    Bain, IJ
                                                                               A089 253 273
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                DEBRA ANN LIVINGSTON,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _______________________________________
12
13       XIA LI,
14                      Petitioner,
15
16                       v.                                     12-3387
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Joshua Bardavid, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Mary Jane Candaux,
27                                     Assistant Director; Ashley Martin,
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     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       Xia Li, a native and citizen of China, seeks review of

 6   an August 7, 2012, order of the BIA affirming the November

 7   22, 2010, decision of Immigration Judge (“IJ”) Quynh Vu

 8   Bain, which denied her application for asylum, withholding

 9   of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Xia Li, No. A089 253 273 (B.I.A. Aug. 7,

11   2012), aff’g No. A089 253 273 (Immig. Ct. N.Y. City Nov. 22,

12   2010).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as modified and supplemented by the BIA’s

16   decision.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426

17   F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d

18   268, 271 (2d Cir. 2005).     The applicable standards of review

19   are well-established.     See 8 U.S.C. § 1252(b)(4)(B); see

20   also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

21   2009).     In cases, such as this one, where neither the IJ nor

22   the BIA made an explicit credibility finding, we assume the

23   petitioner is credible.     See Yan Chen, 417 F.3d at 271-72.

                                     2
 1   I.   Asylum: Pretermission

 2        Although 8 U.S.C. § 1158(a)(3) provides that no court

 3   shall have jurisdiction to review the agency’s finding that

 4   an asylum application was untimely under 8 U.S.C.

 5   § 1158(a)(2)(B), or its finding of neither changed nor

 6   extraordinary circumstances excusing the untimeliness under

 7   8 U.S.C. § 1158(a)(2)(D), we retain jurisdiction to review

 8   constitutional claims and “questions of law.”   8 U.S.C.

 9   § 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471

10   F.3d 315, 329 (2d Cir. 2006); Gui Yin Liu v. INS, 508 F.3d

11   716, 720 (2d Cir. 2007).

12        Li has raised a question of law as to whether the

13   agency mischaracterized and ignored evidence in the record

14   related to the timeliness of her asylum application.     Gui

15   Yin Liu, 508 F.3d at 722 (where the IJ unambiguously

16   mischaracterizes the record, it raises a question of law).

17   We remand for the agency to consider the timeliness of the

18   asylum application in light of the entire record.   Although

19   the BIA acknowledged that the contradiction relied upon by

20   the IJ was not actually present, in determining that the

21   remaining evidence did not make a clear and convincing

22   showing of Li’s entry date, it failed to further consider

23   the record.

                                  3
 1       The BIA cited a lack of travel documents, lack of

 2   testimony from eyewitnesses with first-hand knowledge of

 3   Li’s date of entry, and Li’s discrepant testimony as the

 4   reasons for its affirmance.     However, Li explained her

 5   discrepant testimony by noting that she had originally cited

 6   the date she arrived in New York as the date of arrival

 7   because she had not known that Los Angeles was part of the

 8   United States.   Neither the BIA, nor the IJ, stated why this

 9   explanation was insufficient.       See Pavlova v. INS, 441 F.3d

10   82, 89-90 (2d Cir. 2006) (“[W]here it is not apparent on the

11   face of the record that the [agency] has considered the

12   applicant’s responses to the [agency’s] credibility

13   concerns, we . . . require the [agency] to say enough to

14   allow us to understand, and to review, the reasons for

15   rejecting the applicant’s testimony.”).      In addition, Li

16   offered a cousin’s testimony regarding her presence in China

17   in July 2007 and in New York by August 2007, in

18   contradiction to the BIA’s finding that Li did not offer

19   anyone with personal knowledge of her entry to the United

20   States.   Thus, because the agency mischaracterized or failed

21   to consider evidence, remand is required.       Xiao Kui Lin v.

22   Mukasey, 553 F.3d 217, 220 (2d Cir. 2009); Gui Yin Liu, 508

23   F.3d at 722.

                                     4
 1   II. Asylum & Withholding of Removal

 2       To establish eligibility for asylum or withholding of

 3   removal, an applicant must show that she has suffered past

 4   persecution, or has a well-founded fear of future

 5   persecution, on account of race, religion, nationality,

 6   membership in a particular social group, or political

 7   opinion.   See 8 U.S.C. § 1101(a)(42); 8 C.F.R. §§ 1208.13(b)

 8   (asylum), 1208.16(b) (withholding of removal).   If the

 9   applicant is found to have suffered past persecution, she is

10   presumed to have a well-founded fear of future persecution

11   on the basis of the original claim.   8 C.F.R.

12   §§ 1208.13(b)(1), 1208.16(b)(1).   The government may rebut

13   that presumption if it shows, by a preponderance of the

14   evidence, either that there has been a fundamental change in

15   circumstances, or that the applicant could safely relocate.

16   8 C.F.R. §§ 1208.13(b)(1)(I)-(ii), 1208.16(b)(1)(I)-(ii);

17   see also Matter of D-I-—, 24 I. & N. Dec. 448, 450-51 (BIA

18   2008) (discussing the burden shifting framework).

19   Furthermore, to withstand review, the agency must have

20   considered the evidence of record and supported its decision

21   with adequate reasoning.   See 8 U.S.C. § 1158(b)(1)(B)(ii);

22   Tian-Yong Chen v. U.S. INS, 359 F.3d 121, 127 (2d Cir. 2004)


                                   5
 1   (“where the agency’s determination is based on an inaccurate

 2   perception of the record, omitting potentially significant

 3   facts, we may remand for reconsideration or rehearing”).       As

 4   discussed below, we conclude that the agency failed to apply

 5   the proper legal framework or demonstrate that it considered

 6   the evidence of record.     Tian-Yong Chen, 359 F.3d at 127.

 7       Initially, the IJ erred as she did not make a

 8   credibility finding, and did not consider Li’s

 9   individualized evidence, yet concluded that Li had not

10   suffered past persecution.     Tian-Yong Chen, 359 F.3d at 127.

11   Although Li alleged that she was beaten twice while in

12   detention, had her Bible confiscated, and was deprived of

13   food, the IJ did not consider whether these beatings, or the

14   circumstances cumulatively, rose to the level of

15   persecution.   See Beskovic v. Gonzales, 467 F.3d 223, 226

16   (2d Cir. 2006).   Instead, the IJ misstated the law, finding

17   that one way to establish past persecution is by showing a

18   pattern or practice of persecution of a group of similarly

19   situated individuals.     As the pattern and practice standard

20   is relevant only in assessing a well-founded fear of

21   persecution, and not whether an applicant suffered past

22   persecution, the IJ applied an erroneous legal standard in

23   evaluating Li’s claim of past persecution.     See 8 C.F.R.
                                     6
 1   §§ 1208.13(b)(2)(iii)(A), 1208.16(b)(2)(I); see also

 2   Alibasic v. Mukasey, 547 F.3d 78, 87 n.6 (2d Cir.

 3   2008)(noting the agency is obligated to consider the

 4   particular circumstances of the applicant’s case).

 5       On appeal, the BIA recast the IJ’s decision as finding

 6   Li had failed to corroborate her claim, but it similarly

 7   ignored whether Li had established past persecution.     In a

 8   REAL ID Act case, such as this one, the agency may require

 9   corroboration despite otherwise credible testimony, unless

10   it cannot be reasonably obtained.   See 8 U.S.C.

11   § 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C); Chuilu

12   Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009).     However,

13   before denying a claim solely because of an applicant’s

14   failure to provide corroborating evidence, the agency must,

15   either in its decision or otherwise in the record:

16   (1) identify the specific pieces of missing, relevant

17   documentation and explain that it was reasonably available;

18   (2) provide the petitioner an opportunity to explain the

19   omission; and (3) assess any explanation given.     See Chuilu,

20   575 F.3d at 198; see also 8 U.S.C. § 1158(b)(1)(B)(ii).

21       Although the BIA acknowledged this standard, its focus

22   on corroboration did not cure the IJ’s decision of its

23   flaws.   First, the BIA erred by citing evidence as missing
                                   7
 1   that the IJ did not address in her opinion, including twice

 2   mentioning that Li should have provided a letter from her

 3   mother.   See Ming Shi Xue v. BIA, 439 F.3d 111, 122 (2d Cir.

 4   2006) (“before denying an asylum petition because of

 5   insufficient corroboration, an IJ [must give] adequate and

 6   meaningful notice to the applicant of evidence that the IJ

 7   believed was significant and missing.”).     Second, the BIA

 8   did not address the veracity of the letters from Li’s

 9   father, friend in China, or church friend in Brooklyn.

10   These omissions are not minor, but rather involve a failure

11   to consider potentially significant evidence in the record.

12   Tian-Yong Chen, 359 F.3d at 123 (remanding when “both the

13   BIA and the IJ overlooked potentially significant evidence

14   supporting [petitioner’s] applications for asylum”).     Third,

15   while the BIA cited the corroboration standard that assumes

16   the alien is credible, it obliquely suggested in a footnote

17   that perhaps she was not.     Finally, the BIA also did not

18   state whether Li had established past persecution and

19   whether she was entitled to a rebuttable presumption of a

20   well-founded fear.

21       For the foregoing reasons, the petition for review is

22   GRANTED, and the case REMANDED for further proceedings

23   consistent with this order.     Any pending request for oral

                                     8
1   argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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