12

‐ 4888

Jiang v. Holder

BIA

Balasquide, IJ

A087 467 425



### 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 9 th day of April, two thousand

fourteen.

PRESENT:

JON O. NEWMAN,

PIERRE N. LEVAL,

GERARD E. LYNCH,

Circuit Judges

.

_____________________________________

RONG JIANG,

Petitioner

,

v. 12

‐ 4888

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent

.

_____________________________________FOR PETITIONER: Dehai Zhang, Flushing, New York.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney

General; Jennifer L. Lightbody, Senior Litigation

Counsel; Kiley L. Kane, 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 DENIED in part and GRANTED

in part, the decision of the BIA is VACATED insofar as the petition is granted,

and the case is REMANDED for further proceedings consistent with this

decision.

Petitioner Rong Jiang, a native and citizen of China, seeks review of a

November 19, 2012 decision of the BIA affirming a January 24, 2011 decision of

Immigration Judge (“IJ”) Javier Balasquide, denying Jiang’s application for

asylum, withholding of removal and relief under the Convention Against Torture

(“CAT”). In re Rong Jiang

, No. A087 467 425 (B.I.A. Nov. 19, 2012), aff’g No.

A087 467 425 (Immig. Ct. N.Y. City Jan. 24, 2011). We assume the parties’

familiarity with the underlying facts and procedural history in this case.

2As an initial matter, although Jiang challenges the denial of relief in

“asylum

‐ only” proceedings, as opposed to an actual removal order, we

nonetheless have jurisdiction under 8 U.S.C. § 1252(a)(1) because the denial of

relief in these circumstances is the functional equivalent of a removal order. See

Kanacevic v. INS

, 448 F.3d 129, 134 (2d Cir. 2006). Under the circumstances of

this case, we have reviewed the IJ’s decision as modified by the BIA. See Xue

Hong Yang v. U.S. Dep’t of Justice

, 426 F.3d 520, 522 (2d Cir. 2005). The BIA

affirmed the IJ’s adverse credibility finding and did not reach the IJ’s alternate

findings that even if Jiang was credible, her petition was untimely and she failed

to satisfy her burden of proof on her asylum and withholding of removal claims.

Accordingly, the IJ’s alternate findings are not before us. We review the IJ’s

factual findings under the substantial evidence standard. See 8 U.S.C. §

1252(b)(4)(B); Zhou Yun Zhang v. INS

, 386 F.3d 66, 73 (2d Cir. 2004).

Nonetheless, we may vacate the agency’s decision and remand if the agency has

committed substantial errors, and we cannot state with confidence that the

agency would have made the same decision in the absence of the errors. See Xiao

Ji Chen v. U.S Dep’t of Justice

, 434 F.3d 144, 159 (2d Cir. 2006); Cao He Lin v. U.S.

Dep’t of Justice

, 428 F.3d 391, 401

‐ 02 (2d Cir. 2005).

3The IJ denied Jiang’s petition on the ground that her testimony was not

credible. Because the IJ’s adverse credibility determination was based on a

mischaracterization of the record and flawed reasoning this determination does

not support the denial of Jiang’s petition. See Zhi Wei Pang v. Bureau of

Citizenship and Immigration Servs.

, 448 F.3d 102, 107 (2d Cir. 2006); Zhou Yun

Zhang

, 386 F.3d at 74 (“[O]ur review is meant to ensure that credibility findings

are based upon neither a misstatement of the facts in the record nor bald

speculation or caprice.”). For example, the IJ inaccurately stated that Jiang

“indicated that she and [her] witness attended church services for two weeks in a

row,” leading him to conclude that Jiang’s testimony was “obviously

. . .

inconsistent with the witness testimony.” CAR 16 (emphasis added). In fact,

however, Jiang merely testified that she saw her witness at church the past two

Sundays, CAR 108 (emphasis added), while her witness testified that she had not

attended services the Sunday before last, but that she had gone to the church later

in the day to pray. CAR 120

‐ 21. These statements are not inconsistent, let alone

obviously so, and the IJ erred in basing his credibility determination on a

misconstruction of this testimony. Although the IJ additionally based his adverse

credibility determination on the fact that Jiang presented witnesses who

4impeached each other, we cannot state with confidence that the IJ would have

still reached the same conclusion about Jiang’s credibility had he not made the

error in reasoning we have identified. That is particularly the case because the IJ

declined to decide which of petitioner’s witnesses testified truthfully about

whether one witness had been paid to testify at the other witness’s merits

hearing, and absent such a determination it would be unclear what impact the

witnesses’ contradictory testimony on a matter not material to Jiang’s claims

should have on Jiang’s own credibility.

With respect to petitioner’s application for relief under CAT, the IJ

concluded that even if petitioner’s testimony was credited, Jiang had failed to

prove that it is more likely than not that she would be tortured if removed to

China. 8 C.F.R. § 208.16(c)(2). The BIA affirmed this aspect of the IJ’s decision.

Because Jiang failed to contest the agency’s finding with respect to her CAT claim

in her brief to this Court, any challenge to the agency’s resolution of that claim is

deemed waived. See Yueqing Zhang v. Gonzales

, 426 F.3d 540, 541 n.1, 546 n.7

(2d Cir. 2005).

For the foregoing reasons, the petition for review is DENIED in part and

GRANTED in part, the decision of the BIA is VACATED insofar as the petition is

5granted, and the case is REMANDED for further proceedings consistent with this

decision.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

6