     15-1205
     Zheng v. Sessions
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A079 402 969
                              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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   13th day of February, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHIBI ZHENG,
14            Petitioner,
15
16                       v.                                          15-1205
17                                                                   NAC
18   Jeff Sessions, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Lewis G. Hu, New York, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Linda S.
27                                       Wernery, Assistant Director;
28                                       Thankful T. Vanderstar, Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       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 is

4    GRANTED.

5        Petitioner Zhibi Zheng, a native and citizen of the

6    People’s Republic of China, seeks review of a March 26, 2015

7    decision of the BIA affirming a February 28, 2013 decision of

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

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Zhibi Zheng, No. A079 402 969

11   (B.I.A. Mar. 26, 2015), aff’g No. A079 402 969 (Immig. Ct. N.Y.

12   City Feb. 28, 2013).   We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed the

15   IJ’s decision as modified by the BIA, i.e., without considering

16   the basis for denying relief that was not addressed by the BIA.

17   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

18   Cir. 2005).   Accordingly, we do not consider the IJ’s denial

19   of the asylum application as untimely and we address only the

20   agency’s   adverse   credibility   determination.      Id.   The

21   applicable standards of review are well established.    8 U.S.C.

22   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66


                                    2
1    (2d   Cir.     2008).         In   making    an     adverse      credibility

2    determination, the agency may, “[c]onsidering the totality of

3    the circumstances, . . . base a credibility determination on

4    the demeanor, candor, or responsiveness of the applicant . .

5    ., the inherent plausibility of the applicant’s . . . written

6    and   oral   statements,”      and    inconsistencies       in   the   record

7    evidence “without regard to whether” those inconsistencies go

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

9    § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 163-64.

10         We grant Zheng’s petition and remand because the agency’s

11   adverse     credibility      determination   is     not   supported     by   a

12   totality     of   the   circumstances.        The    IJ’s     inconsistency

13   findings are not supported by the record, and her implausibility

14   finding is not tethered to the evidence.

15         The IJ erred in finding Zheng’s testimony inconsistent

16   regarding the date of her second forced abortion.                      Zheng

17   repeatedly stated that she did not remember the exact date of

18   that abortion and consistently testified that it occurred while

19   she was home for the Chinese New Year.             Zheng guessed that, in

20   the relevant period, the Chinese New Year occurred around

21   November or December 2000; her documents stated that her second

22   abortion was performed in early February 2001.              The IJ ignored


                                            3
1    Zheng’s consistent testimony that the abortion occurred after

2    the Chinese New Year and relied solely on Zheng’s statement that

3    she guessed the holiday was in November or December to find her

4    testimony and documents inconsistent.       A standard reference

5    source explains that the “Chinese New Year, also called Lunar

6    New Year, [is an] annual 15-day festival in China . . . that

7    begins with the new moon that occurs sometime between January

8    21   and   February   20   according   to   Western   calendars.”

9    Encyclopedia Britannica, https://www.britannica.com/

10   topic/Chinese-New-Year.    Zheng’s documents that her abortion

11   occurred in early February 2001 were thus consistent with her

12   testimony that her second abortion occurred “after the Chinese

13   New Year.”   Given the lack of actual inconsistency, the IJ’s

14   finding in this regard provides no support for the adverse

15   credibility determination.      8 U.S.C. § 1158(b)(1)(B)(iii)

16   (requiring that a “totality of the circumstances” support a

17   credibility ruling); cf. Diallo v. INS, 232 F.3d 279, 287-88

18   (2d Cir. 2000) (recognizing in pre-REAL ID Act case that minor

19   discrepancies in dates need not be fatal to an applicant’s

20   credibility).

21        The IJ found Zheng’s testimony that she had not made a copy

22   of her passport before it was confiscated by a smuggler


                                     4
1    inconsistent with her attorney’s submission of a copy of that

2    passport.    However, Zheng testified that she could not remember

3    if she had made a copy, not that she had never done so.    Thus,

4    the IJ erred in finding the record inconsistent in this regard.

5        The IJ also erred in finding an inconsistency between

6    Zheng’s testimony and statements made in her father’s letter.

7    Zheng testified that she was asked to report for a family

8    planning checkup “three months[,] more or less” after her first

9    forced abortion; her father’s letter and her asylum application

10   stated that she received a notice to report “[a]bout” six months

11   after the first abortion.    Neither Zheng nor her father was

12   definitive in their recollections of the timeline, and, as Zheng

13   explained, both were discussing an incident that had occurred

14   years earlier (more than a decade before Zheng’s testimony and

15   seven years before her father’s letter).    See Diallo, 232 F.3d

16   at 287-88.

17       The IJ’s finding that that it was implausible that Zheng

18   would pay to have her intrauterine device (“IUD”) removed when

19   she was homeless and did not have a job was impermissibly

20   speculative.    See Wensheng Yan v. Mukasey, 509 F.3d 63, 66-67

21   (2d Cir. 2007) (recognizing that “a finding of inherent

22   implausibility must be based on more than bald speculation or


                                     5
1    caprice” (internal quotation marks omitted)); see also Siewe

 2   v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (“The

 3   speculation that inheres in inference is not bald if the

 4   inference is made available to the factfinder by record facts

 5   . . . .” (internal quotation marks omitted)).   Zheng testified

 6   that, while living in Sichuan Province for six months, she paid

 7   to have her IUD removed and she became homeless for one month.

8    She never testified, however, that these circumstances occurred

9    at the same time during that six-month period, nor was she

10   questioned as to the chronology.   Accordingly, the IJ’s finding

11   that it was implausible that Zheng paid to remove her IUD while

12   homeless was impermissibly speculative.    See Wensheng Yan, 509

13   F.3d at 66-67; Siewe, 480 F.3d at 168-69.

14       Given these weaknesses in the IJ’s inconsistency and

15   implausibility findings, all that remains to support the

16   agency’s adverse credibility determination is the IJ’s finding

17   that Zheng’s demeanor was questionable.     Although particular

18   deference is given to the trier of fact’s assessment of

19   demeanor, see Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.

20   2005), we have never held that a demeanor finding alone may

21   constitute   substantial   evidence   to   support   an   adverse

22   credibility determination, cf. Li Hua Lin v. U.S. Dep’t of


                                    6
1    Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be . . . more

2    confident in our review of observations about an applicant’s

3    demeanor where . . . they are supported by specific examples

4    of inconsistent testimony.”).       Moreover, the IJ’s demeanor

5    finding was not particularly strong in this case.   Although the

6    IJ faulted Zheng for frequently pausing during her testimony

7    and for appearing to have a difficult time recalling several

8    details of the events surrounding her abortions, it is difficult

9    to discern whether Zheng’s hesitation and lack of recall were

10   “extremely troubling,” as the IJ found, or a result of the

11   passage of more than a decade since the events in question.

12       In the absence of an adequate basis for questioning Zheng’s

13   credibility, the agency may not rely solely on a failure to

14   corroborate to find Zheng not credible.    See Diallo, 232 F.3d

15   at 287; see also Chuilu Liu v. Holder, 575 F.3d 193, 198 n.5

16   (2d Cir. 2009).    Indeed, the IJ did not find that Zheng’s

17   failure to produce certain evidence provided an independent

18   basis for finding her not credible.

19       Because we cannot confidently predict that the agency would

20   have made the same decision absent the identified errors, remand

21   is required.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

22   F.3d 315, 339 (2d Cir. 2006).


                                     7
1        For the foregoing reasons, the petition for review is

2    GRANTED and the case is REMANDED for further proceedings

3    consistent with this order.    As we have completed our review,

4    any stay of removal that the Court previously granted in this

5    petition is VACATED, and any pending motion for a stay of removal

6    in this petition is DISMISSED as moot.   Any pending request for

7    oral argument in this petition is DENIED in accordance with

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

9    Circuit Local Rule 34.1(b).

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




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