11-5348

Zhu v. Holder

BIA

Nelson, IJ

A089 252 283

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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 23rd day of January, two thousand fourteen.

PRESENT:

REENA RAGGI,

PETER W. HALL,

DENNY CHIN,

Circuit Judges.

_____________________________________

CHANG QIANG ZHU, AKA HUA XING LIN,

Petitioner, 

 v. 11-5348

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Wendy Tso, New York, New York.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Daniel E. Goldman,

Senior Litigation Counsel; Jonathan

F. Potter, 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 GRANTED, the decision below is VACATED, and the matter is

REMANDED for further proceedings not inconsistent with this

order.

Chang Qiang Zhu, a native and citizen of the People’s

Republic of China, seeks review of a November 30, 2011,

decision of the BIA affirming the August 27, 2009, decision

of Immigration Judge (“IJ”) Barbara A. Nelson, which denied

his application for asylum, withholding of removal, and

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

Chang Qiang Zhu, No. A089 252 283 (B.I.A. Nov. 30, 2011),

aff’g No. A089 252 283 (Immig. Ct. N.Y. City Aug. 27, 2009). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented and modified by the BIA. 

See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271

(2d Cir. 2005). The applicable standards of review are

well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For

applications such as Zhu’s, governed by the amendments to

the Immigration and Nationality Act by the REAL ID Act of

2005, Matter of S-B-, 24 I. & N. Dec. 42, 45 (BIA 2006), the

agency may, “[c]onsidering the totality of the circumstances

. . . base a credibility determination on the demeanor,

candor, or responsiveness of the applicant[, and] . . . the

consistency [of the applicant’s] statements with other

evidence of record . . . without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see

also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

2008) (per curiam).

Although we “defer to an IJ’s credibility determination

unless, from the totality of the circumstances, it is plain

that no reasonable fact-finder could make” such a ruling,

Xiu Xia Lin, 534 F.3d at 167, we remand because given the

errors in what the IJ characterized as the “[m]ore

significant” bases of the adverse credibility determination,

we cannot conclude that the agency would reach the same

decision on remand considering the totality of the

circumstances. See Cao He Lin v. U.S. Dep’t of Justice, 428

F.3d 391, 406-07 (2d Cir. 2005). 

2
The agency based its credibility determination

primarily on Zhu’s testimony concerning his telling of the

story of the biblical figure Paul to Chinese authorities

during his detention. The agency found that Zhu’s demeanor

while testifying was “hesitant” and “evasive” and his

account of the story was inconsistent. The record, however,

reveals that Zhu’s demeanor began to suffer only when the IJ

required him to provide highly detailed information

regarding the story of Paul. Indeed, while Zhu was able to

explain that Paul was a disciple of Jesus Christ who 

persecuted Christians, and later converted to Christianity

after being blinded on the road to Damascus, he struggled to

answer more detailed questions such as what form Paul’s 

persecution of Christians took or in what year Paul

converted to Christianity. By inquiring of Zhu and

expecting him to provide this extensive detail, virtually

all of which he testified to accurately in any event, the IJ

contravened our holding in Rizal v. Gonzales, 442 F.3d 84,

90 (2d Cir. 2006), which prohibits relying on a petitioner’s

lack of doctrinal knowledge as the basis for an adverse

credibility determination or denying relief. 

Although the agency indicated, and the government now

asserts, that the adverse credibility determination was

based not on Zhu’s failure to remember the details of the

story of Paul, but rather on his inability correctly to

recall what he told the officers in China and his poor

demeanor in recalling those events, this categorization is

not supported by the record. First, to the extent Zhu

exhibited questionable demeanor during this line of inquiry

by the IJ, the change in demeanor coincides with the IJ’s

demand for detailed information about the story of Paul, not

about what he told the officers, and thus was triggered by a

line of inquiry inconsistent with our holding in Rizal. See

Rizal, 442 F.3d at 90. Second, to the extent the agency

determined that Zhu’s testimony was inconsistent with

respect to the story of Paul, it failed to identify what

inconsistencies it was considering, nor did the agency give

Zhu an opportunity to explain any so-called inconsistencies. 

Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir. 2006) (the

agency may not rest an adverse credibility determination on

non-obvious inconsistencies without first giving the

applicant a chance to explain the inconsistency).

3
Furthermore, the two additional findings the agency

relied on to support the adverse credibility determination

are insufficient on their own to support an adverse

credibility determination under a totality of the

circumstances. First, the agency’s finding that Zhu lacked

a credible demeanor while testifying about why he enjoyed

attending Christian gatherings is not apparent from the

record, which shows that while Zhu struggled to understand

the IJ’s questions, he provided responsive, though

unspecific, answers. Without what the IJ perceived to be

problematic testimony during her questioning of petitioner

regarding the story of Paul, this minor incident would not

be enough, under the totality of the circumstances, to

support an adverse credibility determination. See Xiu Xia

Lin, 534 F.3d at 167. In addition, while the agency noted

that Zhu provided an inconsistent account of the dates that

the police originally began looking for him, the record

demonstrates that, at most, Zhu was confused by the

question, as he immediately corrected the date once he

understood what was asked. Given Zhu’s quick correction of

that date, especially in light of the other significant

problems we have identified with regard to the credibility

determination discussed above, this minor inconsistency (if

it is an inconsistency at all) is insufficient to support

the adverse credibility determination. Id. 

Because the IJ’s adverse credibility determination

relied primarily on a determination at odds with Rizal v.

Gonzales, 442 F.3d at 90, and because the other credibility

findings are insufficient on their own to uphold the

determination, we remand for further proceedings regarding

Zhu’s eligibility for relief. See Cao He Lin, 428 F.3d at

406-07. Moreover, it is unclear whether, as the government

argues, Zhu has fully exhausted his claim that there is a

pattern or practice of persecuting Christians in China. Zhu

argued before the BIA, albeit briefly, that the IJ erred in

failing to consider his pattern or practice claim, but

neither the IJ or the BIA fully considered that claim or

addressed whether it was sufficiently raised. If upon

remand Zhu is found credible as to his practice of

Christianity in China or in the United States, or both, the

agency should either address his claim that there is a

“pattern or practice” of persecution of Christians in China

or explain why it was not sufficiently presented, to the

extent that reaching this claim is necessary to resolve his

eligibility for asylum or withholding of removal. See 8

C.F.R. § 1208.13(b)(2)(iii). 

4
For the foregoing reasons, the petition for review is

GRANTED, the decision below is VACATED, and the matter is

REMANDED for further proceedings not inconsistent with this

order.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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