17-3586 Lin v. Barr BIA Loprest, IJ A201 124 147 

### 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 TO 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** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 24 th**  **day of July, two thousand nineteen.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **DEBRA ANN LIVINGSTON,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **ZHONGHUANG LIN,** 13 Petitioner **,** 14 15 **v. 17-3586** 16 **NAC** 17 **WILLIAM P. BARR, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Richard Tarzia, Belle Mead, NJ. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Holly M. Smith, 26 Kohsei Ugumori, Senior Litigation 27 Counsel, Office of Immigration 28 Litigation, United States 29 Department of Justice, Washington, 30 DC. 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is GRANTED. 4 Petitioner Zhonghuang Lin, a native and citizen of the 5 People’s Republic of China, seeks review of an October 11, 6 2017, decision of the BIA affirming a February 1, 2017, 7 decision of an Immigration Judge (“IJ”) denying Lin’s 8 application for asylum and withholding of removal. In re 9 Zhonghuang Lin, No. A201 124 147 (B.I.A. Oct. 11, 2017), aff’g 10 No. A201 124 147 (Immig. Ct. N.Y. City Feb. 1, 2017). We 11 assume the parties’ familiarity with the underlying facts and 12 procedural history in this case. 13 Under the circumstances of this case, we have reviewed 14 the IJ’s decision as modified by the BIA, i.e., minus the 15 IJ’s burden findings that the BIA declined to reach. See Xue 16 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d 17 Cir. 2005). The applicable standards of review are well 18 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 19 Sessions , 891 F.3d 67, 76 (2d Cir. 2018). 20
One Year Bar 21 Under 8 U.S.C. § 1158(a)(2)(B), an alien is ineligible 22 for asylum “unless the alien demonstrates by clear and 233 convincing evidence that the application has been filed 1 within 1 year after the date of the alien’s arrival in the 2 United States.” Our jurisdiction to review findings 3 regarding the timeliness of an asylum application is limited 4 to “constitutional claims or questions of law.” 8 U.S.C. 5 § 1252(a)(2)(D); see 8 U.S.C. § 1158(a)(3). The agency erred 6 as a matter of law in its determination that Lin failed to 7 satisfy his burden of proving that he arrived in the United 8 States within the year prior to filing his application in 9 February 2011. 10 The agency errs as a matter of law when it “totally 11 overlook[s]” or “seriously mischaracterize[s]” material 12 facts. Mendez v. Holder , 566 F.3d 316, 323 (2d Cir. 2009). 13 The IJ incorrectly determined that Lin failed to provide 14 details of the circumstances of his arrival in the United 15 States when Lin testified ex tensively and provided specific 16 details of his travels from China to New York. The IJ also 17 erred in finding that Lin’s sister-in-law’s corroborating 18 affidavit was not based on personal knowledge regarding Lin’s 19 arrival because she attested to having picked Lin up after he 20 arrived in New York with the assistance of a human trafficker. 21 Otherwise, the IJ relied on his adverse credibility 22 determination, which as discussed below, is problematic. 234 Accordingly, the agency erred as a matter of law in 1 pretermitting Lin’s asylum application as untimely. See 2 8 U.S.C. §§ 1158(a)(2)(B), 1252(a)(2)(D); Mendez , 566 F.3d at 3 323. 4 Asylum and Withholding: Adverse Credibility Determination 5 “Considering the totality of the circumstances, and all 6 relevant factors, a trier of fact may base a credibility 7 determination on the demeanor, candor, or responsiveness of 8 the applicant . . . , the consistency between the applicant’s 9 or witness’s written and oral statements . . . , the internal 10 consistency of each such statement, the consistency of such 11 statements with other evidence of record . . . without regard 12 to whether an inconsistency, inaccuracy, or falsehood goes to 13 the heart of the applicant’s claim, or any other relevant 14 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. 15 Mukasey , 534 F.3d 162, 163-64 (2d Cir. 2008). The agency’s 16 determination that Lin was not credible as to his claim that 17 he was detained and beaten in China on account of his 18 religious practice is not supported by substantial evidence. 19 Although the agency reasonably found Lin’s demeanor 20 problematic given his hesitant and evasive testimony, see 21 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales , 430 F.3d 22 77, 81 n.1 (2d Cir. 2005), the agency’s findings that Lin’s 235 testimony was inconsistent are not supported by the record. 1 First, Lin’s affirmative response to his attorney’s leading 2 question about whether he came to the United States to gain 3 independence from his family and his testimony that he came 4 to the country for fear of persecution were not inconsistent 5 as those statements were not mutually exclusive. Further, 6 Lin’s testimony that police beat him with a baton was not 7 inconsistent with his application statement that police 8 slapped him in the face and hit him with a baton. Contrary 9 to the IJ’s finding that Lin submitted a letter from a fellow 10 church member in China, but inconsistently testified that he 11 stopped all communication with members of his unregistered 12 church after his release from detention, Lin testified that 13 he had maintained contact with one or two church members (he 14 testified that he had no further contact with government 15 cadres). 16 The IJ also erroneously found that “Lin took pains in 17 his testimony to indicate that his congregation conducted its 18 meetings in a clandestine manner in order to avoid police 19 detection and that its members considered it ‘very important’ 20 to keep all information about the congregation secret,” and 21 then testified inconsistently that he and other church 22 members passed out religious flyers on the street. The IJ’s 236 characterization of Lin’s testimony is flawed. Lin testified 1 that he told his classmates that he attended church and his 2 only testimony that his church operated in secret resulted 3 from his attorney’s repeated leading questions. Therefore, 4 given his testimony that he did not hide his religious 5 practice from his classmates, his claim that he passed out 6 flyers on the street was not incongruent. 7 The only discrepancy that has support in the record is a 8 minor date discrepancy regarding whether a hotel receipt—used 9 to establish that Lin was in China within one year of filing 10 his asylum application—was dated February or March 2010. 11 However, such an isolated and minor date discrepancy “need 12 not be fatal to credibility.” Diallo v. INS , 232 F.3d 279, 13 288 (2d Cir. 2000). 14 Accordingly, the only error-free basis for questioning 15 Lin’s credibility was his demeanor, which we have stated may 16 alone be insufficient to support an adverse credibility. 17 See, e.g. , Feng Lin v. Holder , 433 F. App’x 39, 40 (2d Cir. 18 2011) (summary order). Although the IJ did not err in finding 19 that Lin’s corroborating evidence was insufficient to 20 rehabilitate credibility, given the errors in the adverse 21 credibility determination, it is not clear that his 22 credibility needed rehabilitating. See Biao Yang v. 237 Gonzales , 496 F.3d 268, 273 (2d Cir. 2007); cf. Wei Sun v. 1 Sessions , 883 F.3d 23, 31 (2d Cir. 2018) (discussing 2 procedural safeguards the IJ must follow before relying on 3 lack of corroboration to deny relief to a credible applicant). 4 Because of the significant errors in the agency’s 5 inconsistency findings, we cannot “confidently predict” 6 whether the agency would reach the same result absent the 7 errors and remand is required. Xiao Ji Chen v. U.S. Dep’t 8 of Justice , 471 F.3d 315, 339 (2d Cir. 2006). 9 For the foregoing reasons, the petition for review is 10 GRANTED. As we have completed our review, any stay of removal 11 that the Court previously granted in this petition is VACATED, 12 and any pending motion for a stay of removal in this petition 13 is DISMISSED as moot. Any pending request for oral argument 14 in this petition is DENIED in accordance with Federal Rule of 15 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 16 34.1(b). 17
FOR THE COURT: 18 Catherine O’Hagan Wolfe 19 Clerk of Court 20