         09-0917-ag
         Chen v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A099 535 490
                               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 28 th day of June, two thousand ten.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       ZHONG MIN CHEN,
14                Petitioner,
15
16                        v.                                    09-0917-ag
17                                                              NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Oleh R. Tustaniwsky, New York, New
24                                      York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General, Greg D. Mack, Senior
28                                      Litigation Counsel, Micheline
29                                      Hershey, Attorney, Office of
30                                      Immigration Litigation, Civil
31                                      Division, United States Department
32                                      of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is GRANTED.

5        Petitioner Zhong Min Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a February 10,

7    2009, order of the BIA, affirming the January 31, 2007,

8    decision of Immigration Judge (“IJ”) Sandy K. Hom, denying

9    his application for asylum, withholding of removal, and

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

11   Chen, No. A099 535 490 (B.I.A. Feb. 10, 2009), aff’g No.

12   A099 535 490 (Immig. Ct. N.Y. City Jan. 31, 2007).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       Under the circumstances of this case, we review the

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

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

18   applicable standards of review are well-established.        See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).

21       Chen alleged past persecution in the People’s Republic

22   of China based on his Christian house church activities in


                                  2
1    August 2004 and his distribution of religious flyers at a

2    public park in October 2005.   He testified that, in the 2004

3    episode, police raided the home church and arrested him

4    after those attending the service with him escaped.   He

5    testified that he was beaten, punched, kicked, hit on his

6    back and face, and struck on his head with a chair, a blow

7    that has left a visible scar. He also testified that he was

8    detained for two days without food or water and not allowed

9    to sleep. He went to a doctor and received medicines for his

10   injuries. In the 2005 episode, police interrupted his public

11   distribution of flyers by attempting to arrest him.   They

12   choked him by grabbing his throat.   He managed to escape by

13   biting the hand of the police officer. He never returned

14   home; his father told him that police had come to the home

15   to arrest him.

16       Chen also testified that he regularly attends the

17   Church of Grace in New York City, and produced a letter,

18   signed by the Pastor and Minister of the Church, certifying

19   that, according to the Church’s registration book, Chen has

20   been attending Sunday Service regularly since September 10,

21   2006.

22       The IJ found that Chen was not credible.   This finding



                                    3
1    was stated to be “primarily due to [Chen’s] demeanor as

2    witnessed by the court and [Chen’s] inability to evoke a

3    timbre of truth in his voice during his testimony.”

4    Although demeanor is relevant to an assessment of

5    credibility, the reliance on the lack of a “timbre of truth”

6    in Chen’s voice, is too vague to provide support for an

7    adverse credibility finding.   Another flaw in the IJ’s

8    finding arises from the IJ’s faulting Chen because he was

9    both “hesitant” and “quick” in his responses. A further flaw

10   is the IJ’s disbelief of Chen because Chen produced a

11   Notarial Birth Certificate, issued in 2006, something the IJ

12   thought was unlikely to have been issued if Chen was being

13   sought as a fugitive. However, this basis for disbelief is

14   speculation in the absence of any indication that the agency

15   issuing the birth certificate would be aware of local police

16   interest in Chen.   The IJ declined to give the letter from

17   Church officials “any evidentiary weight” because it was

18   considered “a form like fill-in-the-blanks letter.” The fact

19   that leaders of an organization use a form letter, with

20   names and dates filled in on appropriate lines in the

21   letter, to respond to frequent requests for information is

22   not a reasonable basis to disregard entirely the weight of



                                    4
1    such a document. Because the IJ’s findings were flawed, the

2    IJ could not properly base his adverse credibility

3    determination on the lack of corroborating evidence alone.

4    See Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).

5        The decision of the BIA is also flawed in that it

6    asserts that the IJ “reasonably relied on inconsistencies”

7    although no inconsistency is identified, and none appears in

8    the IJ’s opinion.

9        It is unclear whether the IJ would have made an adverse

10   credibility finding if the flaws we have identified were

11   eliminated and whether the BIA would have upheld even the

12   IJ’s flawed credibility determination had it not erroneously

13   believed that the IJ relied on inconsistencies in the

14   record.     See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

15   315, 339 (2d Cir. 2006); Cao He Lin v. U.S. Dep’t of

16   Justice, 428 F.3d 391, 406 (2d Cir. 2005).

17       Because this Court cannot confidently predict that the

18   agency would reach the same conclusion absent the BIA’s

19   mischaracterization of the record and the flaws in the IJ’s

20   adverse credibility determination, we find that remand is

21   required.     See Xiao Ji Chen, 471 F.3d at 339.

22       For the foregoing reasons, the petition for review is


                                     5
1    GRANTED, the BIA’s order is VACATED, and the case REMANDED

2    for further proceedings consistent with this Order.   As we

3    have completed our review, any stay of removal that the

4    Court previously granted in this petition is VACATED, and

5    any pending motion for a stay of removal in this petition is

6    DISMISSED as moot.   Any pending request for oral argument in

7    this petition is DENIED in accordance with Federal Rule of

8    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

9    34.1(b).

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12




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