10-5219

Yu v. Holder

BIA

Nelson, IJ

A094 934 753

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

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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 22nd day of July, two thousand fourteen.

PRESENT:

BARRINGTON D. PARKER,

DEBRA ANN LIVINGSTON,

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

LINGQING YU,

Petitioner, 

 v. 10-5219

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_____________________________________

FOR PETITIONER: Theodore N. Cox, New York, NY.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Stephen J. Flynn, Assistant

Director; James A. Hurley, 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.

Petitioner Lingqing Yu, a native and citizen of China,

seeks review of a December 1, 2010 order of the BIA, denying

her motion to remand and affirming the June 24, 2008

decision of an Immigration Judge (“IJ”), which denied

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”) on credibility grounds. 

In re Lingqing Yu, No. A094 934 753 (B.I.A. Dec. 1, 2010),

aff’g No. A094 934 753 (Immig. Ct. New York City June 24,

2008). We previously granted partial summary denial of the

petition, as it relates to the denial of the motion to

remand, but directed briefing on Yu’s challenge to the

adverse credibility determination. We assume the parties’

familiarity with the underlying facts and procedural history

in this case. 

Under the circumstances of this case, we review the

decisions of both the IJ and the BIA. See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). We

review the agency’s factual findings, including its adverse

credibility determinations, under the substantial evidence

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standard. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per

curiam). 

For applications such as Yu’s, which are governed by

the REAL ID Act, the agency may base a credibility finding

on an applicant’s demeanor, the plausibility of her account,

and inconsistencies in her statements, without regard to

whether they go “to the heart of the applicant’s claim.” 8

U.S.C. § 1158(b)(1)(B)(iii). “When putative inconsistencies

or implausibilities are not dramatic and the need to clarify

is not obvious, an IJ has an obligation to inform the

petitioner that his testimony is being viewed as potentially

flawed, and the IJ must give the petitioner a chance to

explain.” Zhi Wei Pang v. Bureau of Citizenship and

Immigration Servs., 448 F.3d 102, 109-10 (2d Cir. 2006). 

“[I]t is the IJ’s duty to make sure that the record . . .

includes both the alien’s explanation for any non-‘dramatic’

discrepancies, on the one hand, and the IJ’s reasons for

rejecting ‘significant’ explanations, on the other.” Ming

Shi Xue v. Board of Immigration Appeals, 439 F.3d 111, 125

(2d Cir. 2006)(emphasis omitted). “We defer [] to an IJ’s

credibility determination unless, from the totality of the

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circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.” Xiu Xia

Lin, 534 F.3d at 167.

The adverse credibility determination was based solely

on three putative implausibilities in Yu’s account of past

harm. The government concedes that the IJ did not confront

Yu with the perceived, implausible aspects of her account

but contends that the IJ had no obligation to do so because

the implausibilities were obvious. We disagree. 

Initially, the perceived implausibility of Yu’s

departure from China was not so obvious as to relieve the IJ

of her duty to solicit an explanation. Yu’s application

asserted that she was illegally smuggled out of China, and

she testified that she traveled from Shinxian to Hong Kong

by vehicle and had her passport with her when she left Hong

Kong. The IJ found implausible that police were searching

for Yu in Fujian Province but she was able to leave Hong

Kong without incident. “The IJ failed to cite any

materials, reports, or personal knowledge to support this

conclusion,” Zhi Wei Pang, 448 F.3d at 110, and found this

to be the most serious implausibility. However, it is not

obvious that a person wanted for investigation in Fujian

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Province would be prevented from departing Hong Kong. 

Moreover, we have cautioned against implausibility findings

based on foreign practices that are unsupported by any

record evidence. See, e.g., Cao He Lin v. U.S. Dep’t of

Justice, 428 F.3d 391, 405 (2d Cir. 2005). Although the

government points to authority for the proposition that an

alien’s departure account may serve as a basis for an

implausibility finding where the alien fails to adequately

explain the implausibility, see Siewe v. Gonzales, 480 F.3d

160, 169 (2d Cir. 2007), Yu was not afforded an opportunity

to explain. “Even if the [implausibility] finding did have

some support in the record, the putative flaw . . . is not

dramatic enough that the IJ was relieved from the obligation

to inform [Yu] . . . and give h[er] a chance to respond.” 

Zhi Wei Pang, 448 F.3d at 110. Furthermore, although the IJ

did ask Yu whether the Chinese government tried to stop her

from leaving the country, this question “was general and

exploratory in nature,” Zhi Wei Pang, 448 F.3d at 109, and

did not adequately signal to Yu a need to explain her

testimony. 

The IJ also erred by failing to confront Yu with the

perceived implausibility concerning her parents’ treatment

in China. The IJ found implausible that Yu was arrested for

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harboring her friend but her parents, who apparently owned

the home, had no problems. However, this perceived

implausabily was not dramatic because Yu testified that she

was previously arrested for supporting Falun Gong, did not

tell her parents that her friend was a Falun Gong

practitioner, and actively assisted her friend by opening

the backdoor so she could escape. Because it is not obvious

that Yu’s parents would be viewed as equally culpable and

treated accordingly, the IJ was required to confront Yu with

this perceived implausibility and afford her an opportunity

to explain. See Zhi Wei Pang, 448 F.3d at 109-10; Ming Shi

Xue, 439 F.3d at 125. 

The IJ also failed to confront Yu with the perceived

implausibility concerning her willingness to support Falun

Gong in China. Yu indicated that she spoke out in support

of Falun Gong because she was sympathetic to its followers

who have been cruelly mistreated by the government. She

testified that she ceased her public support for Falun Gong

after her first arrest but agreed to harbor her Falun Gong

practitioner friend because she feared that her friend would

be arrested and persecuted. The IJ found implausible that

Yu would be willing to support Falun Gong in China but

unwilling to practice it herself; the IJ assumed that the

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only plausible reason that Yu would speak out publically in

support of Falun Gong and harbor her Falun Gong practitioner

friend is her own adherence to the tenets of Falun Gong. 

This perceived implausibility is non-obvious. Indeed, we

have recognized that the decision to harbor individuals is

often based on “humanitarian or charitable” considerations,

which may nevertheless give rise to persecution on account

of a protected ground. See e.g., Jin Jin Long v. Holder,

620 F.3d 162, 167 (2d Cir. 2010). The IJ was therefore

required to confront Yu with this perceived implausibility

and afford her an opportunity to explain. See Zhi Wei Pang,

448 F.3d at 109-10; Ming Shi Xue, 439 F.3d at 125.

The IJ’s errors in assessing Yu’s past persecution

claim also infect the agency’s assessment of her risk of

future persecution, and the denials of withholding of

removal and CAT relief, because an applicant who

demonstrates past persecution is entitled to a rebuttable

presumption of a well-founded fear and a likelihood of

future persecution, 8 C.F.R. § 1208.13(b)(1); Li Hua Lin v.

U.S. Dep’t of Justice, 453 F.3d 99, 105 (2d Cir. 2006), and

Yu’s claims all shared a common factual predicate, see Paul

v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 

7
 For the foregoing reasons, the petition for review is 

GRANTED and the case is remanded for further proceedings

consistent with this order. As we have completed our

review, the pending motion for a stay of removal in this

petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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