16

‐ 2 262

‐ ag, 16

‐ 2493

‐ ag

Gao v. Sessions

, Shao v. Sessions

U NITED S TATES C OURT OF A PPEALS

F OR THE S ECOND C IRCUIT

August Term 2017

(Argued: December 11, 2017 Decided: May 25, 2018)

Docket Nos. 16

‐ 2262

‐ ag, 16

‐ 2493

‐ ag

H ONG F EI G AO

, AKA Xue Liang Zhang,

Petitioner

,

v.

J EFFERSON B. S ESSIONS III, United States Attorney General,

Respondent

. *

H AO S HAO

,

Petitioner

,

v.

J EFFERSON B. S ESSIONS III, United States Attorney General,

Respondent .*

* Pursuant to Federal Rule of App ellate Procedure 43(c)(2), Attorney

General Jefferson B. Sessions III is substituted for former Attorney General Loretta E.

Lynch as respondent. 16 -2262-ag, 16-2493-ag

Gao v. Sessions, Shao v. Sessions‐ 2

‐ O N P ETITIONS FOR R EVIEW FROM THE

B OARD OF I MMIGRATION A PPEALS

Before:

W INTER and C HIN

, Circuit Judges

, and K ORMAN

, Judge

. *

Petitions for review heard in tandem from decisions of the Board of

Immigration Appeals affirming the decisions of Immigration Judges denying

petitioners asylum and related relief on adverse credibility grounds. During

removal proceedings, petitioners testified to certain details about their

experiences that they had not included in their initial applications and

supporting documents. The Immigration Judges relied substantially on these

omissions in finding petitioners not credible.

P ETITIONS G RANTED

.

M ONA L IZA F ABULAR L AO

, New York, New York, for

Petitioner Gao

.

J OSHUA E. B ARDAVID

, Law Office of Joshua E. Bardavid,

New York, New York, for Petitioner Shao

.

B RETT F. K INNEY and J ESSE L LOYD B USEN

, Trial

Attorneys, Jeffery R. Leist, Senior Litigation

* Edward R. Korman, of the United States District Court for the Eastern

District of New York, sitting by designation.‐ 3

‐ Counsel, Holly M. Smith, Senior Litigation

Counsel, Laura M. Cover, Law Clerk, for Chad A.

Readler, Acting Assistant Attorney General, Civil

Division, United States Department of Justice,

Washington, D.C., for Respondent.

C HIN

, Circuit Judge :

These petitions for review heard in tandem challenge two decisions

of the Board of Immigration Appeals (the ʺ BIA ʺ ), affirming decisions by two

Immigration Judges ( ʺ IJs ʺ ), denying asylum, withholding of removal, and

protection under the Convention Against Torture ( ʺ CAT ʺ ) to two petitioners

seeking relief from religious persecution in China on adverse credibility grounds.

During removal proceedings, petitioners testified regarding the medical

attention they received for injuries they sustained from police beatings. The IJs

and the BIA relied substantially on the omission of that information from

petitioners ʹ initial applications and supporting documents to determine that

petitioners lacked credibility.

On appeal, petitioners principally challenge the agency ʹ s adverse

credibility determinations. In light of the totality of the circumstances and in the

context of the record as a whole, in each case we conclude that the IJ and BIA

erred in substantially relying on certain omissions in the record. Accordingly,‐ 4

‐ we grant the petitions, vacate the decisions of the BIA, and remand the cases to

the BIA for further proceedings consistent with this opinion.

BACKGROUND

We summarize the facts and procedural history of each case

separately, as follows:

I. Hong Fei Gao

Around April 2010, Gao, a native and citizen of China, entered the

United States without inspection. In September 2010, Gao applied for asylum,

withholding of removal, and protection under the CAT.

In his application, which included a short personal statement in

Chinese, Gao explained that in February 2009, influenced by his mother, he

began practicing Christianity in China. In November 2009, while he was praying

at a friend ʹ s house with other church members, the police broke into the house

and arrested Gao and his friends. Gao was brought to the police station and was

detained for ten days, during which he was repeatedly interrogated and beaten.

His family spent money and relied on connections to secure Gao ʹ s release, and

the police required Gao to sign a letter promising not to attend church activities

anymore. After his release and before he recovered from his detention, Gao was‐ 5

‐ fired from his restaurant job. He left China in March 2010 and continued to

practice Christianity in the United States. The statement did not provide any

description of any medical treatment.

In December 2010, Gao was served with a notice to appear in

removal proceedings. Through counsel, Gao conceded removability.

On September 12, 2014, following a hearing on September 27, 2012,

the IJ (Loprest, IJ ) issued written orders denying Gao ʹ s application for asylum,

withholding of removal, and protection under the CAT, and ordered Gao

removed to China. The IJ denied relief principally on adverse credibility

grounds. 1 The IJ cited the following ʺ evidentiary shortcomings that might not

undermine [Gao ʹ s] case individually, but when considered cumulatively, ʺ led the

IJ to conclude that Gao lacked credibility, Gao Cert. Admin. R. 64:

 Gao testified that he was interrogated by police four times and

was beaten during those interrogations, but his application omitted the number

of interrogations and the fact that his injuries required medical attention. 2

1 The IJ also denied Gao ʹ s asylum application on the ground that it was not timely.

Because the BIA declined to address that ground, the timeliness of Gao ʹ s application is

not before us on appeal.

2 In fact, the application stated that ʺ [the police] interrogated me several times. ʺ

Gao Cert. Admin. R. 302.‐ 6

‐  Gao testified that he was beaten and visited a clinic, but Gao ʹ s

mother ʹ s letter did not mention that Gao was physically injured or that she and

Gao ʹ s father took him to a clinic. Instead, her letter stated that she was ʺ afraid

that [he] would be beaten by the police. ʺ Id. at 251.

 Gao could not explain why his Chinese birth certificate and a

letter from his underground church used identical photographs.

 Gao could not explain how he traveled under an electronic

airline ticket in his real name while simultaneously using a fraudulent passport.

 Gao lacked candor and responsiveness, as he responded to

questions vaguely, asked for many questions to be repeated, and paused for a

long time before answering.

Gao failed to explain the inconsistencies and omissions to the IJ ʹ s

satisfaction. The IJ was not persuaded by Gao ʹ s explanation that he did not

know why his mother failed to mention the clinic visit in her letter. The IJ noted

that he reached the adverse credibility determination ʺ with some reluctance ʺ as

ʺ the documentary record appears to corroborate certain aspects of Gao ʹ s claim, ʺ

citing letters, photographs, and statements relating to Gao ʹ s mistreatment in‐ 7

‐ China and his practice of Christianity in the United States, as well as U.S.

Department of State reports on religious persecution in China. Id. at 64.

On June 6, 2016, the BIA affirmed the IJ ʹ s decision and dismissed

Gao ʹ s appeal, finding no clear error in the IJ ʹ s determination that Gao lacked

credibility. In re Hong Fei Gao

, No. A200 922 341 (B.I.A. June 6, 2016), aff’g No.

A200 922 341 (Immig. Ct. N.Y. City Sep. 12, 2014). Although it noted that some

of the IJ ʹ s findings did not support an adverse credibility determination, citing

one example of the discrepancy relating to the number of interrogations, the BIA

upheld the adverse credibility determination based on two omissions: (1) the

omission in Gao ʹ s mother ʹ s letter of the facts that he was physically injured and

that his parents took him to a clinic, and (2) the omission in Gao ʹ s asylum

application of the fact that he required medical treatment and the extent of his

mistreatment. After considering Gao ʹ s proffered explanations

‐‐ he did not know

why his mother failed to mention his medical treatment, he did not request that

her letter include all details about what happened after his release, and he could

not produce a receipt because the clinic did not give him one ‐‐ the BIA found no

error in the IJ ʹ s conclusion that Gao did not reasonably explain the omissions.‐ 8

‐ On appeal, Gao challenges the adverse credibility determination,

arguing that his testimony was not inconsistent with his asylum application or

his mother ʹ s letter. He contends that the omissions were minor, collateral, and

insufficient to support an adverse credibility determination.

II. Hao Shao

Around September 2010, Shao, a native and citizen of China, entered

the United States without inspection. In May 2011, Shao applied for asylum,

withholding of removal, and protection under the CAT.

In his updated application, Shao explained that he began practicing

Christianity in January 2003 through a neighbor ʹ s influence and he was baptized

in October 2005. One night in April 2010, while he was gathered with other

Christians at someone else ʹ s house, the police broke into the house, confiscated

their religious texts, and arrested Shao and others. Shao was brought to the

police station, interrogated, and severely beaten. He was detained for eleven

days and interrogated two more times, but as he testified during immigration

proceedings, he was not physically injured the other two times. Shao ʹ s

application further explained that his family spent money to secure his release,

and the police required Shao to report to the station twice a month and sign a‐ 9

‐ letter promising not to participate in the underground church anymore. Shao

was later dismissed by his employer and was regularly monitored by police. He

left China in August 2010 and continued to practice Christianity in the United

States. Shao ʹ s application did not provide any description of his medical

treatment, other than to say that ʺ [a]fter I returned home, my mother salved my

wounds with tear[s]. ʺ Shao Cert. Admin. R. 423.

In July 2011, Shao was served with a notice to appear in removal

proceedings. Through counsel, Shao conceded removability.

On June 24, 2015, following a hearing, the IJ (Cheng, IJ ) denied by

oral decision and written order Shao ʹ s application for asylum, withholding of

removal, and protection under the CAT, and ordered Shao removed to China.

The IJ denied relief principally on adverse credibility grounds. The IJ noted that

the following ʺ serious concerns about [Shao ʹ s] credibility ʺ warranted an adverse

credibility determination, Shao Cert. Admin. R. 74:

 Shao lacked responsiveness and his demeanor ʺ changed

dramatically ʺ when discussing how many times he reported to the police. Id. at

74.‐ 10

‐  Shao testified that he sustained injuries from the police

beating, his parents took him to a local village clinic for treatment, his mother

helped him apply ʺ medical liquid ʺ to his wounds, he went to the clinic for a

follow

‐ up visit, and it took one month for him to recover, but he omitted these

facts from his application.

 Shao ʹ s father ʹ s letter did not mention that Shao ʹ s parents took

him to a clinic or that his mother helped apply ʺ medical liquid ʺ to his wounds.

 Shao vacillated regarding how many times he reported to the

police

‐‐ he answered ʺ five times, wait, 15 times, seven times, ʺ and after an

approximately ten

‐ second pause, finally ʺ seven times. ʺ Id. at 142.

 Shao offered two different dates

‐‐ September 1 and

September 4, 2010

‐‐ for when he contacted his cousin in the United States.

 The letter Shao submitted from his church ʹ s pastor did not

mention his arrest, even though the pastor was aware of it.

After giving Shao ʺ ample opportunity to reconcile these

inconsistencies, ʺ the IJ concluded that Shao ʹ s explanations were ʺ neither

plausible nor reasonable. ʺ Id. at 78. The IJ was not persuaded by Shao ʹ s

explanations that he did not mention the medical treatment because it was a‐ 11

‐ minor detail akin to picking up medicine at a drug store; he had difficulty stating

the number of times he reported to the police, because he did not keep exact

count; and he only submitted the church letter as proof of membership. Finally,

relying on her credibility determination, the IJ determined that Shao failed to

establish past persecution or a well

‐ founded fear of persecution.

On June 27, 2016, the BIA affirmed the IJ ʹ s decision denying relief

and dismissed Shao ʹ s appeal, finding no clear error in the IJ ʹ s determination that

Shao lacked credibility. In re Hao Shao

, No. A200 168 340 (B.I.A. June 27, 2016),

aff ʹ g No. No. A200 168 340 (Immig. Ct. N.Y. City June 24, 2015). The BIA upheld

the adverse credibility determination based on three omissions and

inconsistencies: (1) omissions regarding Shao ʹ s medical treatment from his

asylum application and his father ʹ s letter; (2) the inconsistent testimony Shao

offered on the number of times he reported to the police; and (3) the omission of

Shao ʹ s arrest in the pastor ʹ s letter. The BIA was not persuaded by Shao ʹ s

arguments that he did not believe the clinic treatment was important enough to

include in his application; he did not know why his father omitted mention of his

medical treatment and his father mainly discussed his arrest, where the letter

was ʺ otherwise detailed, ʺ Shao Cert. Admin. R. 4; he did not keep exact count of‐ 12

‐ the number of times he reported to the police; and the pastor ʹ s letter was only a

certificate intended to confirm his membership. The BIA also affirmed the IJ ʹ s

determinations that Shao failed to establish past persecution or a well

‐ founded

fear of persecution.

On appeal, Shao challenges the adverse credibility determination,

contending that the agency erred in relying on minor inconsistencies when the

record as a whole corroborates his claim. He also contends that the IJ failed to

conduct the required individualized analysis when it concluded that Shao failed

to establish a well

‐ founded fear of persecution.

DISCUSSION

I. Applicable Law

A. Statutory Framework

ʺ Asylum is a discretionary form of relief that hinges on persecution

in the applicant ʹ s country of nationality. ʺ Delgado v. Mukasey

, 508 F.3d 702, 705

(2d Cir. 2007). To be eligible for asylum, a petitioner must establish that he or

she is a ʺ refugee, ʺ 8 U.S.C. § 1158(b)(1)(B)(i), that is, a person who is unable or

unwilling to return to his or her country of nationality ʺ because of persecution or

a well

‐ founded fear of persecution on account of race, religion, nationality,‐ 13

‐ membership in a particular social group, or political opinion, ʺ 8 U.S.C.

§ 1101(a)(42)(A). Asylum based on past persecution is " reserved for persecuted

aliens whose persecution was particularly severe or who may suffer ʹ other

serious harm ʹ if removed. ʺ Kone v. Holder

, 596 F.3d 141, 146 (2d Cir. 2010)

(quoting 8 C.F.R. § 1208.13(b)(1)(iii)). Asylum based on a well

‐ founded fear of

persecution ʺ requires a subjective fear that is objectively reasonable. ʺ Huo Qiang

Chen v. Holder

, 773 F.3d 396, 404 (2d Cir. 2014).

Withholding of removal is a mandatory form of relief that requires a

petitioner to demonstrate ʺ a clear probability of future persecution on account of

a protected characteristic. ʺ Kone

, 596 F.3d at 147; see 8 U.S.C. § 1231(b)(3)(A)

(alien may not be removed if ʺ the alien ʹ s life or freedom would be threatened in

that country because of the alien ʹ s race, religion, nationality, membership in a

particular social group, or political opinion ʺ ). A petitioner ʹ s burden of proof for

withholding of removal is higher than his or her burden of proof for asylum.

Vanegas

‐ Ramirez v. Holder

, 768 F.3d 226, 237 (2d Cir. 2014).

Protection under the CAT is also a mandatory form of relief and

requires an applicant to ʺ establish that it is more likely than not that he or she

would be tortured if removed to the proposed country of removal. ʺ Kone

, 596‐ 14

‐ F.3d at 147 (quoting 8 C.F.R. § 1208.16(c)(2)). ʺ Unlike asylum and withholding of

removal, ʹ CAT relief does not require a nexus to a protected ground. ʹʺ Id.

(quoting Delgado, 508 F.3d at 708).

Where the same factual predicate underlies a petitioner ʹ s claims for

asylum, withholding of removal, and protection under the CAT, an adverse

credibility determination forecloses all three forms of relief. See Paul v. Gonzales

,

444 F.3d 148, 156

‐ 57 (2d Cir. 2006).

B. Standards of Review

ʺ When the BIA agrees with an IJ ʹ s adverse credibility determination

and adopts particular parts of the IJ ʹ s reasoning, we review the decisions of both

the BIA and the IJ. ʺ Xiu Xia Lin v. Mukasey

, 534 F.3d 162, 166 (2d Cir. 2008) (per

curiam). Our review of the IJ ʹ s decision ʺ includ[es] the portions not explicitly

discussed by the BIA, ʺ Guan v. Gonzales

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

curiam), but not those grounds explicitly rejected by the BIA, see Xue Hong Yang

v. U.S. Dep ʹ t of Justice

, 426 F.3d 520, 522 (2d Cir. 2005) ( ʺ [W]e review the judgment

of the IJ as modified by the BIA ʹ s decision

‐‐ that is, minus the single argument

for denying relief that was rejected by the BIA. ʺ ).‐ 15

‐ We review de novo questions of law and the application of law to

fact. Kone

, 596 F.3d at 146. We review the agency ʹ s factual findings, including

adverse credibility findings, under the substantial evidence standard, ʺ which

requires that they be supported by ʹ reasonable, substantial and probative

evidence in the record when considered as a whole. ʹʺ Id. (quoting Iouri v.

Ashcroft

, 487 F.3d 76, 81 (2d Cir. 2007)). We treat factual findings as ʺ conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary. ʺ 8 U.S.C. § 1252(b)(4)(B); see Majidi v. Gonzales

, 430 F.3d 77, 80 (2d Cir.

2005) ( ʺ A petitioner must do more than offer a plausible explanation for his

inconsistent statements to secure relief; he must demonstrate that a reasonable

fact

‐ finder would be compelled to credit his testimony. ʺ (internal quotation marks

and citation omitted)).

ʺ We defer

. . . to an IJ ʹ s credibility determination unless, from the

totality of the circumstances, it is plain that no reasonable fact

‐ finder could make

such an adverse credibility ruling. ʺ Xiu Xia Lin

, 534 F.3d at 167. Although we

afford particular deference to the IJ ʹ s adverse credibility determination, ʺ the fact

that an IJ ʹ has relied primarily on credibility grounds in dismissing an asylum

application cannot insulate the decision from review. ʹʺ Xiao Ji Chen v. U.S. Dep ʹ t‐ 16

‐ of Justice

, 471 F.3d 315, 335 (2d Cir. 2006) (quoting Ramsameachire v. Ashcroft

, 357

F.3d 169, 178 (2d Cir. 2004)). We must assess whether the agency has provided

ʺ specific, cogent reasons for the adverse credibility finding and whether those

reasons bear a legitimate nexus to the finding. ʺ Xiu Xia Lin

, 534 F.3d at 166

(quoting Zhou Yun Zhang v. INS

, 386 F.3d 66, 74 (2d Cir. 2004)).

Where an IJ relies on erroneous bases to reach an adverse credibility

determination, and ʺ we cannot confidently predict that the IJ would reach the

same conclusion in the absence of these deficiencies, the IJ ʹ s adverse credibility

determination cannot stand. ʺ Pavlova v. INS

, 441 F.3d 82, 88 (2d Cir. 2006); see

also Kone

, 596 F.3d at 151 ( ʺ Because we cannot confidently predict that absent

these errors the IJ would have adhered to its [adverse credibility]

determination, a remand is warranted. ʺ (footnote omitted)).

C. Omissions and Inconsistencies

For cases filed after May 11, 2005, the effective date of the REAL ID

Act, Pub L. No. 109

‐ 13, 119 Stat. 231 (2005), ʺ an IJ may rely on any inconsistency

or omission in making an adverse credibility determination as long as the

ʹ totality of the circumstances ʹ establishes that an asylum applicant is not

credible, ʺ Xiu Xia Lin

, 534 F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The‐ 17

‐ agency may base a credibility finding on an asylum applicant ʹ s ʺ demeanor,

candor, or responsiveness ʺ ; the ʺ inherent plausibility ʺ of his account; the

consistency among his written statements, oral statements, and other record

evidence; and ʺ any inaccuracies or falsehoods in such statements, without regard

to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant ʹ s claim, or any other relevant factor. ʺ 8 U.S.C. § 1158(b)(1)(B)(iii). Even

where the agency ʺ relies on discrepancies or lacunae that, if taken separately,

concern matters collateral or ancillary to the claim, the cumulative effect may

nevertheless be deemed consequential. ʺ Xiu Xia Lin

, 534 F.3d at 167 (quoting Tu

Lin v. Gonzales

, 446 F.3d 395, 402 (2d Cir. 2006)). To resolve the instant appeals,

we first clarify the following principles that govern credibility determinations

based on omissions following the REAL ID Act.

First, although the REAL ID Act authorizes an IJ to rely on ʺ any

inconsistency or omission in making an adverse credibility determination, ʺ even

one ʺ collateral or ancillary ʺ to an applicant ʹ s claims, id. at 167, the Act does not

give an IJ free rein. The REAL ID Act does not erase our obligation to assess

whether the agency has provided ʺ specific, cogent reasons for the adverse

credibility finding and whether those reasons bear a legitimate nexus to the‐ 18

‐ finding. ʺ Id. at 166 (quoting Zhou Yun Zhang

, 386 F.3d at 74); accord Shrestha v.

Holder

, 590 F.3d 1034, 1042 (9th Cir. 2010) ( ʺ The REAL ID Act did not strip us of

our ability to rely on the institutional tools that we have developed, such as the

requirement that an agency provide specific and cogent reasons supporting an

adverse credibility determination, to aid our review. ʺ ). Thus, although IJs may

rely on non

‐ material omissions and inconsistencies, not all omissions and

inconsistencies will deserve the same weight. A trivial inconsistency or omission

that has no tendency to suggest a petitioner fabricated his or her claim will not

support an adverse credibility determination. See Latifi v. Gonzales

, 430 F.3d 103,

105 (2d Cir. 2005) (per curiam) (remanding where we found ʺ any potential

discrepancies that might exist to be far from ʹ significant and numerous, ʹ but

rather insignificant and trivial ʺ ); accord Shrestha

, 590 F.3d at 1044 (noting that

ʺ trivial inconsistencies that under the total circumstances have no bearing on a

petitioner ʹ s veracity should not form the basis of an adverse credibility

determination ʺ ); Kadia v. Gonzales

, 501 F.3d 817, 821 (7th Cir. 2007) (faulting IJ for

ʺ fail[ing] to distinguish between material lies, on the one hand, and innocent‐ 19

‐ mistakes, trivial inconsistencies, and harmless exaggerations, on the other

hand ʺ ). 3

Second, although ʺ [a] lacuna in an applicant ʹ s testimony or omission

in a document submitted to corroborate the applicant ʹ s testimony

. . . can serve as

a proper basis for an adverse credibility determination, ʺ Xiu Xia Lin

, 534 F.3d at

166 n.3, we also recognize that ʺ asylum applicants are not required to list every

incident of persecution on their I–589 statement, ʺ Lianping Li v. Lynch

, 839 F.3d

144, 150 (2d Cir. 2016) (per curiam) (quoting Pavlova

, 441 F.3d at 90); see also

Secaida

‐ Rosales v. INS

, 331 F.3d 297, 308 (2d Cir. 2003) (noting that an applicant ʹ s

ʺ failure to list in his or her initial application facts that emerge later in testimony

will not automatically provide a sufficient basis for an adverse credibility

finding ʺ ), superseded by statute on other grounds as recognized in Xiu Xia Lin

, 534

F.3d at 167; accord Pop v. INS

, 270 F.3d 527, 531

‐ 32 (7th Cir. 2001) ( ʺ We hesitate to

find that one seeking asylum must state in his or her application every incident

of persecution lest the applicant have his or her credibility questioned if the

3 An example of a trivial inconsistency that is entitled to little if any weight is the

difference between Gao ʹ s hearing testimony that he was interrogated by the police ʺ four

times ʺ and his application statement that he was interrogated ʺ several times. ʺ The BIA

correctly held that this ʺ discrepancy ʺ did not support an adverse credibility

determination. Likewise, the difference between September 1, 2010 and September 4,

2010 as the date when Shao contacted his cousin is a trivial discrepancy.‐ 20

‐ incident is later elicited in direct testimony. ʺ ); Abulashvili v. Attorney Gen. of U.S.

,

663 F.3d 197, 206 (3d Cir. 2011). Because of this tension, although we have noted

in dictum that an inconsistency and an omission are ʺ functionally equivalent ʺ for

adverse credibility purposes, Xiu Xia Lin

, 534 F.3d at 166 n.3, in general

ʺ omissions are less probative of credibility than inconsistencies created by direct

contradictions in evidence and testimony, ʺ Lai v. Holder

, 773 F.3d 966, 971 (9th

Cir. 2014). Cf. Lianping Li

, 839 F.3d at 150 (upholding adverse credibility

determination where petitioner ʹ s ʺ asylum application did not simply omit

incidents of persecution.

. . . [but rather] described the same incidents of

persecution differently ʺ ).

Although the federal evidentiary rules do not apply in immigration

proceedings, Aslam v. Mukasey

, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam), it is

nonetheless instructive to analogize the use of omissions in adverse credibility

determinations to the use of a witness ʹ s prior silence for impeachment. In the

latter context, we have indicated that ʺ [w]here the belatedly recollected facts

merely augment that which was originally described, the prior silence is often

simply too ambiguous to have any probative force, and accordingly is not

sufficiently inconsistent to be admitted for purposes of impeachment. ʺ United‐ 21

‐ States v. Leonardi

, 623 F.2d 746, 756 (2d Cir. 1980) (citation omitted). In addition,

the probative value of a witness ʹ s prior silence on particular facts depends on

whether those facts are ones the witness would reasonably have been expected to

disclose. See Jenkins v. Anderson

, 447 U.S. 231, 239 (1980) ( ʺ Common law

traditionally has allowed witnesses to be impeached by their previous failure to

state a fact in circumstances in which that fact naturally would have been asserted

. ʺ

(emphasis added)). In the immigration context, in assessing the probative value

of the omission of certain facts, an IJ should consider whether those facts are ones

that a credible petitioner would reasonably have been expected to disclose under

the relevant circumstances.

Finally, the REAL ID Act requires IJs to evaluate each inconsistency

or omission in light of the ʺ totality of the circumstances, and all relevant factors, ʺ

8 U.S.C. § 1158(b)(1)(B)(iii). That requirement is consistent with our well

‐

established rule that review of an agency ʹ s adverse credibility determination ʺ is

conducted on the record as a whole. ʺ Tu Lin

, 446 F.3d at 402; see also Xiu Xia Lin

,

534 F.3d at 167 (an applicant ʹ s testimony must be considered ʺ in light of

. . . the

manner in which it hangs together with other evidence ʺ (citation omitted)); accord

Shrestha

, 590 F.3d at 1040 ( ʺ [T]he totality of the circumstances approach also‐ 22

‐ imposes the requirement that an IJ not cherry pick solely facts favoring an

adverse credibility determination while ignoring facts that undermine that

result. ʺ ). Thus, ʺ an applicant ʹ s testimonial discrepancies

‐‐ and, at times, even

outright lies

‐‐ must be weighed in light of their significance to the total context

of his or her claim of persecution. ʺ Zhong v. U.S. Dep ʹ t of Justice

, 480 F.3d 104, 127

(2d Cir. 2007). An IJ must also ʺʹ engage or evaluate ʹ an asylum applicant ʹ s

explanations for apparent inconsistencies in the record. ʺ Diallo v. Gonzales

, 445

F.3d 624, 629 (2d Cir. 2006) (quoting Latifi

, 430 F.3d at 105); see also Cao He Lin v.

U.S. Dep ʹ t of Justice

, 428 F.3d 391, 403 (2d Cir. 2005) ( ʺ Absent a reasoned

evaluation of [petitioner ʹ s] explanations, the IJ ʹ s conclusion that his story is

implausible was based on flawed reasoning and, therefore, cannot constitute

substantial evidence supporting her conclusion. ʺ ).

II. Application

In light of the foregoing principles, we conclude that in both cases,

the IJs and the BIA erred by substantially relying on certain inconsistencies and

omissions that had no tendency to show that petitioners fabricated their claims

when considered in light of the totality of the circumstances and in the context of

the record as a whole. Because we cannot confidently predict that the IJs would‐ 23

‐ have adhered to their adverse credibility determinations absent these erroneous

bases, we remand for further evaluation.

A. Omissions Regarding Medical Treatment

In both cases, the agency relied on the omission from petitioners ʹ

initial applications of discussion of their medical treatment for their injuries after

their release from custody. Although the fact that petitioners visited clinics for

medical treatment may be probative of the degree of harm they suffered, the

omissions of these details from petitioners ʹ initial applications did not warrant

the heavy weight afforded to them by the IJs and the BIA.

First, Gao ʹ s and Shao ʹ s testimony regarding medical treatment was

not inconsistent with their initial accounts. The information was supplementary,

not contradictory: that their beatings warranted medical attention reinforces

their claims of persecution. See Lai

, 773 F.3d at 974 ( ʺ This is not a case where

contradictory or even impeaching information came out; rather, it was

information consistent with [the applicant ʹ s] own claimed experiences that

would have helped his claim had he brought it out himself. ʺ ). Here, the IJs erred

to the extent that they characterized these omissions as inconsistencies. See Shao

Cert. Admin. R. 75 (characterizing Shao ʹ s failure to mention that he visited a‐ 24

‐ clinic as a ʺ troubling significant inconsistency ʺ ); Gao Cert. Admin. R. 65

(characterizing Gao ʹ s mother ʹ s letter ʹ s failure to mention that she took Gao to a

clinic as an ʺ inconsistenc[y] ʺ ).

Second, although we would not necessarily characterize these

omissions as trivial or minor, we are not convinced that the omissions were as

serious as the IJs suggested. We have recognized that ʺ asylum applicants are not

required to list every incident of persecution on their I–589 statement. ʺ Lianping

Li

, 839 F.3d at 150. By logical extension, nor are asylum applicants required to

list every incident that occurs in the aftermath of the alleged persecution. Neither

application attempted to describe the medical attention petitioners received, and

in describing why they believed they were entitled to asylum, there is no reason

petitioners would have described receiving medicine from a clinic.

In Shao ʹ s case, the IJ concluded that during testimony Shao

ʺ explained to this Court in detail that a doctor saw him, examined him, and

provided medical treatment and even had a follow

‐ up visit or appointment, ʺ but

the information was omitted from Shao ʹ s application and Shao ʹ s father ʹ s letter.

Shao Cert. Admin. R. 76. The IJ characterized this discrepancy as a ʺ troubling

significant inconsistency ʺ and ʺ significant omission ʺ because it ʺ implicates a‐ 25

‐ degree of alleged harm that he suffered which is a central element of his claim. ʺ

Id. at 75

‐ 76. Our review of the record suggests that the discrepancy was not so

stark. Shao disclosed in his initial application that his mother helped salve his

wounds. During testimony, Shao twice testified, in response to the IJ ʹ s questions,

that he visited the clinic simply to procure the medicine his mother applied. Id.

at 146 ( ʺ Q. And what did this private small clinic do for you? A. He provide me

with those medical liquid and my mother helped me to put on. ʺ ); id. at 147 ( ʺ Q.

Sir, can you explain to me why both your statements

. . . don ʹ t mention you going

to see this doctor in your village for treatment? A. At the time [I] got released,

my parents and I just went to this small clinic and took, and grabbed some

medicines and then went back. ʺ ). Although he did affirmatively respond to the

IJ ʹ s question about whether he sought ʺ follow

‐ up treatment, ʺ nothing in Shao ʹ s

short response ‐‐ that the doctor ʺ just check[ed] on me, what happened to those

areas, ʺ id. at 146

‐‐ indicates that the treatment was particularly significant. A

fairer reading of Shao ʹ s testimony is that, in response to questioning, he provided

additional detail regarding how his family procured the medicine his mother

used to treat his injuries.‐ 26

‐ Similarly, in Gao ʹ s case, the IJ faulted Gao because he testified that

his parents took him to a clinic immediately after his release, but neither his

application nor his mother ʹ s letter disclosed that his injuries required medical

attention. Gao Cert. Admin. R. 64

‐ 65. Again, our review of the record suggests

that the discrepancy was not so serious. On cross

‐ examination, Gao described

his clinic visit as follows: ʺ They just took a look at me, gave me some liquid

medication, gave me some medication and that was that. ʺ Id. at 176. Nothing in

Gao ʹ s response and the short colloquy regarding his clinic visit indicates that the

treatment was particularly significant.

We also note that petitioners ʹ testimony regarding their clinic visits

was relatively short

‐‐ accounting for less than three pages of transcript in Shao ʹ s

case, and about one page in Gao ʹ s case ‐‐ and was elicited through cross

‐

examination (in Gao ʹ s case) and IJ questioning (in Shao ʹ s case). It was not as

though Gao or Shao volunteered the information on direct examination in an

effort to falsely buttress their claims through testimony. Cf. Zamanov v. Holder

,

649 F.3d 969, 974 (9th Cir. 2011) (upholding adverse credibility determination

where applicant ʹ s ʺ supplemental declaration and his testimony before the IJ tell a

much different

‐‐ and more compelling

‐‐ story of persecution than his initial‐ 27

‐ application and testimony before the asylum officer ʺ ). We hesitate to suggest

that petitioners ʹ initial submissions must detail not only the persecution they

faced, but also the aftermath of the alleged persecution, lest they be found not

credible.

Third, in both cases, when considering the ʺ record as a whole, ʺ Tu

Lin

, 446 F.3d at 402, there was corroborating evidence of petitioners ʹ claims that

they were severely beaten by police. In Shao ʹ s case, Shao ʹ s sister, brother, and

father all submitted letters substantiating his claim that he was beaten in police

detention. In Gao ʹ s case, Gao ʹ s friend

‐‐ the same friend in whose house Gao was

praying when the police arrived

‐‐ submitted a letter corroborating Gao ʹ s account

of what happened in the house and at the police station.

Finally, as far as the omissions in Gao ʹ s mother ʹ s letter and Shao ʹ s

father ʹ s letter regarding the clinic visits, in both cases petitioners were asked to

speculate about the state of mind of the letters ʹ authors. Although an omission

by a third party may form a basis for an adverse credibility determination, see

Xiu Xia Lin

, 534 F.3d at 167, under these circumstances

‐‐ where a third party ʹ s

omission creates no inconsistency with an applicant ʹ s own statements

‐‐ an

applicant ʹ s failure to explain third

‐ party omissions is less probative of credibility‐ 28

‐ than an applicant ʹ s failure to explain his or her own omissions. Cf. id. (relying on

omission in third

‐ party friend ʹ s letter where ʺ the failure of [applicant ʹ s] friend to

mention that the friend was in hiding from Chinese authorities contradicted

[applicant ʹ s] testimony that her friend feared further persecution ʺ ).

We therefore conclude that, under the totality of circumstances, the

omissions regarding Gao ʹ s and Shao ʹ s clinic visits warranted little, if any,

weight. 4

B. Remaining Issues in Shao ʹ s Case

In Shao ʹ s case, the IJ also relied on the omission of the fact that Shao

was arrested in a letter from Shao ʹ s pastor, who was aware of Shao ʹ s arrest. The

IJ did not accept Shao ʹ s explanation that he submitted the letter only to prove his

church attendance and baptism. Although the BIA concluded that the omission

ʺ would not be sufficient by itself to support the adverse credibility

determination,

. . . it [could] be cited ʺ in light of other discrepancies. Shao Cert.

Admin. R. 5.

4 We do not suggest that omissions regarding medical treatment can never be the

basis of an adverse credibility determination. We emphasize simply that such

omissions must be evaluated on a case

‐ by

‐ case basis and weighed in light of the totality

of the circumstances.‐ 29

‐ We are not persuaded that reliance on this omission was

appropriate. Although the document at issue is handwritten, it is plainly titled a

ʺ Certificate, ʺ and includes no details other than Shao ʹ s date of his birth, the date

he ʺ accepted Jesus Christ as Savior, ʺ and the date he was baptized. Id. at 230.

The absence of Shao ʹ s arrest in this document is unremarkable given the purpose

for which Shao offered the document, and it is not apparent to us why the IJ

would expect a discussion of Shao ʹ s arrest in the certificate. Moreover, although

an IJ is not compelled to accept a petitioner ʹ s explanation, an IJ is required to

ʺ engage or evaluate ʺ the explanation. Diallo

, 445 F.3d at 629 (quoting Latifi

, 430

F.3d at 105). The IJ ʹ s summary conclusion that ʺ the Court does not accept

[Shao ʹ s] explanation ʺ did not meet this requirement. Shao Cert. Admin. R. 77.

We recognize that other aspects of Shao ʹ s testimony

‐‐ such as his

vacillating answers regarding how many times he reported to the police and his

demeanor during that exchange

‐‐ support the IJ ʹ s adverse credibility finding.

But because we cannot confidently predict that the IJ would have adhered to her

determination absent the other errors we have identified, remand is warranted.‐ 30

‐ C. Remaining Issues in Gao ʹ s Case

In Gao ʹ s case, the IJ also relied on other inconsistencies and

omissions that do not support the adverse credibility determination. The BIA

correctly rejected the IJ ʹ s improper reliance on the purported discrepancy in

Gao ʹ s statements regarding the number of times he was interrogated. We also

note that Gao ʹ s failure to mention in his application that his interrogation room

had a ʺ small window, ʺ a fact he later recounted in testimony, was an utterly

trivial omission that had no bearing on Gao ʹ s credibility. See Latifi

, 430 F.3d at

105; accord Shrestha

, 590 F.3d at 1044; Kadia

, 501 F.3d at 821.

We recognize that other discrepancies support the IJ ʹ s adverse

credibility finding. For example, Gao ʹ s mother mentions in her letter that, upon

hearing that Gao was arrested, she was ʺ afraid that [her] son would be beaten by

the police. ʺ Gao Cert. Admin. R. 251. She does not, however, mention that he

was in fact beaten and injured, although she discusses other post

‐ arrest events.

But because we cannot confidently predict that the IJ would have adhered to his

determination absent the errors we have identified

‐‐ especially as the IJ

commented that he reached the adverse credibility determination ʺ with some

reluctance, ʺ id. at 64

‐‐ remand is warranted.‐ 31

‐ * * *

Omissions need not go to the heart of a claim to be considered in

adverse credibility determinations, but they must still be weighed in light of the

totality of the circumstances and in the context of the record as a whole. In

deciding on the appropriate weight to afford an omission, IJs must distinguish

between (1) omissions that arise merely because an applicant ʹ s oral testimony is

more detailed than his or her written application, and (2) omissions that tend to

show that an applicant has fabricated his or her claim. In light of the foregoing,

we conclude that a remand is appropriate in both cases to allow the BIA ‐‐ ʺ or the

IJ, if that is the most appropriate decision

‐ maker in the first instance

, ʺ Mahmood

v. Holder

, 570 F.3d 466, 471 (2d Cir. 2009)

‐‐ to afford the omissions discussed

above their appropriate weight when evaluating petitioners ʹ credibility.

CONCLUSION

For the reasons set forth above, we GRANT the petitions, VACATE

the decisions of the BIA, and REMAND the cases to the BIA for further

proceedings consistent with this opinion. As we have completed our review,

Gao ʹ s pending motion for a stay of removal in this petition is DENIED as moot.