13-2294

Su v. Holder

BIA

IJ, Cheng

A087 973 191

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 25th day of June, two thousand fourteen.

PRESENT:

JOSÉ A. CABRANES,

ROBERT D. SACK, 

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

WENXING SU, AKA WENJIN SU,

Petitioner,

v. 13-2294

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

 

FOR PETITIONER: Lee Ratner, Law Offices of Michael

Brown, New York, New York.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General; Paul Fiorino, Senior
Litigation Counsel; Judith R.

O’Sullivan, 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 DISMISSED in part and GRANTED in part, and the matter is

remanded for further consideration.

Wenxing Su, a native and citizen of the People’s

Republic of China, seeks review of a May 15, 2013, decision

of the BIA affirming the February 13, 2012, decision of an

Immigration Judge (“IJ”), pretermitting his asylum

application and denying withholding of removal and relief

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

Su, No. A087 973 191 (B.I.A. May 15, 2013), aff’g No. A087

973 191 (Immig. Ct. N.Y. City Feb. 13, 2012). 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 decision of the IJ as supplemented by the BIA. See Yan

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

applicable standards of review are well established. See 8

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U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

F.3d 510, 513 (2d Cir. 2009). 

I. Asylum 

Su’s asylum application was pretermitted by the agency

as untimely, as the agency determined that Su failed to

demonstrate by “clear and convincing evidence that the

application had been filed within 1 year after the date of

[Su’s] arrival in the United States.” 8 U.S.C.

§ 1158(a)(2)(B). We lack jurisdiction to review the factual

determination that the application was untimely, but retain

jurisdiction to consider constitutional claims or questions

of law. See 8 U.S.C. §§ 1158(a)(2)(B), (3), 1252(a)(2)(D);

Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 285 (2d Cir.

2009). 

Su argues that the IJ mischaracterized his testimony as

inconsistent with a May 2009 hospital record and March 2009

physical examination report, thus raising a question of law.

However, this argument challenges the “IJ’s fact-finding

. . . and raises neither a constitutional claim nor a

question of law.” Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 329 (2d Cir. 2006). We thus lack jurisdiction

to review it. See 8 U.S.C. §§ 1158(a)(2)(B), (3),

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1252(a)(2)(D). Accordingly, we dismiss Su’s petition

insofar as it challenges the denial of his asylum

application.1

II. Withholding of Removal and CAT Relief

As Su’s application is governed by the REAL ID Act of

2005, the agency may “consider[] the totality of the

circumstances,” and base a credibility finding on the

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his account, and inconsistencies in his

statements, without regard to whether they go “to the heart

of the applicant’s claim.” See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

167 (2d Cir. 2008). 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 an adverse credibility ruling.” Xiu Xia

Lin, 534 F.3d at 167. 

Here, the IJ’s inconsistency findings crucially rest on

mischaracterizations and impermissible speculation, and the

1 As we remand this decision on the grounds listed below,

nothing precludes the agency from reconsidering its

untimeliness finding, particularly as that finding largely

relies on the same credibility findings we find unsupported

by substantial evidence.

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remaining grounds fail to sufficiently support the adverse

credibility determination. 

The IJ based her inconsistency finding on two purported

discrepancies between Su’s testimony and documents that he

submitted. First, the IJ considered the date of a document

from a hospital inconsistent with Su’s testimony about the

date of his hospital stay. Su testified that he was

admitted to the hospital on May 28, 2009, and stayed for two

days. The document reflecting his hospitalization is dated

May 30, 2009. Absent evidence that Chinese hospital records

are always dated on the day of admission, rather than the

day of discharge (a highly dubious proposition), the

document appears consistent with Su’s testimony. Second,

the IJ considered Su’s testimony that he was married

inconsistent with an entry in his father’s household

registration booklet, which listed him as unmarried. But

that entry was made before Su’s marriage, and while the

entry was not updated when a new member was added to the

household registration booklet at a date after Su’s

marriage, that member was Su’s wife, who was listed as Su’s

father’s daughter-in-law. Once again, no meaningful

contradiction is apparent.

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With regards to both of these purported discrepancies,

moreover, the IJ impermissibly speculated regarding

documentary practices in China. See Cao He Lin v. U.S.

Dep’t of Justice, 428 F.3d 391, 405 (2d Cir. 2005) (“Without

some specific evidence concerning practices in China,”

basing credibility findings on failure to satisfy particular

documentary practices is impermissible). The reasons for an

implausibility finding must be evident and not based on

flawed reasoning or speculation. See Wensheng Yan v.

Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). Without further

support, it is speculation to presume that hospital visit

documentation in China is issued upon admission rather than

discharge, and that parental household registries are

inevitably updated in a comprehensive manner. 

The IJ’s remaining findings do not rise to the level of

substantial evidence needed to support an adverse

credibility determination. The IJ observed immaterial

omissions in a letter from Su’s wife, and observed that Su

did not specifically document or precisely remember one

employer during a period of transitory work. These matters

are far too trivial to justify an adverse credibility

finding. Finally, the IJ relied on a tenuous finding that

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Su’s demeanor was non-responsive and evasive. While we

usually defer to adverse demeanor findings, that deference

is diminished when it is not tethered to specific instances

of inconsistent testimony. See Li Hua Lin v. U.S. Dep’t of

Justice, 453 F.3d 99, 109 (2d Cir. 2006). A review of the

record demonstrates that the primary suggestion of

inconsistent testimony related to an exchange in which Su,

in response to an inquiry about documentation demonstrating

his entry date, clarified that his documentation

demonstrated his date of departure from China. Because the

departure evidence was circumstantial evidence of his entry

date, his testimony was not inconsistent or evasive, and

therefore did not support the demeanor finding. The record

as a whole confirms that Su’s testimony was consistent, both

internally and with his documentary evidence. 

In sum, a consideration of the evidence cited by the IJ

in support of her adverse credibility finding, and

reiterated by the BIA, suggests that “no reasonable factfinder could make such an adverse credibility ruling,” Xiu

Xia Lin, 534 F.3d at 167, on the basis of the evidence and

reasoning before us. As this adverse credibility finding

comprised the grounds for denying Su’s withholding and CAT

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applications, we conclude that a remand is warranted for

reconsideration of Su’s credibility. While we have no doubt

that the original IJ in this petition could reconsider the

matter impartially, in order to avoid any risk of the

appearance of partiality, we direct that the reconsideration

occur at a new hearing before a different IJ.

For the foregoing reasons, the petition for review is

DISMISSED with regard to the asylum application and GRANTED

with regard to the withholding and CAT applications. With

regard to the withholding and CAT applications, the matter

is remanded for reconsideration before a different IJ. As

we have completed our review, Su’s pending motion for a stay

of removal is DENIED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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