Beruflich Dokumente
Kultur Dokumente
3d 135
Petitioner Gui Yin Liu, a native and citizen of the People's Republic of China,
seeks review of an April 2, 2003 order of the BIA affirming the May 2, 2001
decision of Immigration Judge ("IJ") Philip L. Morace denying petitioner's
application for asylum, withholding of removal, and relief under the
Convention Against Torture ("CAT"). In re Gui Yin Liu, No. Alr-gxy-rjx
(B.I.A. Apr. 2, 2003), aff'g No. Alg-nsv-vok (Immig. Ct. N.Y. City May 2,
2001). Liu claims that he fled China in 1999 after government officials forced
his wife to undergo a forcible sterilization procedure. The IJ found Liu's
testimony regarding the time and manner of his arrival in the United States
vague, non-responsive, and implausible, and concluded that Liu's asylum
application was barred as untimely because Liu had failed to demonstrate that
the application was filed within one year of his arrival in the United States, as
required by Title 8, Section 1158(a)(2)(B) of the United States Code. The IJ
also denied Liu's claims for withholding of removal and CAT relief, finding
Liu's testimony regarding the forced sterilization similarly vague,
nonresponsive, and unpersuasive.1
DISCUSSION
2
In finding Liu's claims as to when he entered the United States incredible, the IJ
relied in part on Liu's demeanor, which he found "vague," "non-responsive,"
and "characterized by long delays." Petitioner disputes this characterization of
his testimony. We lack jurisdiction to review the IJ's finding in this respect.
However, because the IJ relied on an inaccurate representation of the record
with respect to Liu's police record, the agency's "analysis cannot be regarded as
based on the evidence of record," and we are deprived of the ability to review
adequately the agency's denial of Liu's asylum claim. See Tian-Yong Chen, 359
F.3d at 127. We are unable to say with confidence that the IJ's findings would
remain the same if Liu's police record were properly characterized. See Xiao Ji
Chen, at 332.
This Court reviews the agency's factual findings, including adverse credibility
determinations, under the substantial evidence standard, treating them as
"conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary." 8 U.S.C. 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS,
386 F.3d 66, 73 & n. 7 (2d Cir.2004). However, we will vacate and remand for
new findings if the agency's reasoning or its fact-finding process was
sufficiently flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d
Cir.2005).
The IJ's adverse credibility finding rests in large part on the finding that Liu's
testimony lacked detail. Where an applicant gives "spare" testimony, the IJ
may "fairly wonder whether the testimony is fabricated," and "may wish to
probe for incidental details, seeking to draw out inconsistencies that would
support a finding of lack of credibility." Jin Shui Qiu v. Ashcroft, 329 F.3d 140,
152 (2d Cir.2003). Without so probing, however, the fact-finder may fail to
create a record that can support an adverse credibility finding. See Jin Chen v.
U.S. Dep't of Justice, 426 F.3d 104, 114 (2d Cir.2005). In this case, we find
significant flaws in the IJ's finding that Liu's testimony was incredible for lack
of detail.
Here, Liu testified that he was not present during his wife's sterilization and that
Here, Liu testified that he was not present during his wife's sterilization and that
she did not tell him details about the procedure. The IJ recognized this, but
nevertheless found Liu's testimony devoid of sufficient detail. However, the IJ
failed to point to any details absent in Liu's testimony that were necessary to
establish his claim. The IJ's opinion cited one particular lacuna in Liu's
testimony: Liu's failure to explain the details of the alleged sterilization
procedure. But such "details [do not] affect[] whether the sterilization entitles
[Liu] to refugee status," Jin Shui Qiu, 329 F.3d at 152 (quotation marks
omitted), and there is nothing in the record to indicate that Liu should have
been expected to know the details of the procedure.
The IJ's finding that Liu's testimony was nonresponsive is to some extent borne
out by the record, although Liu's testimony regarding the critical element of his
claim the sterilization does not appear from the record to have been
particularly evasive or non-responsive. The IJ's finding in this regard is entitled
to deference. See Zhou Yun Zhang, 386 F.3d at 73; Majidi v. Gonzales, 430
F.3d 77, 81 n. 1 (2d Cir.2006). However, given the flaws in the IJ's finding that
Liu's testimony was insufficiently detailed, we cannot predict with confidence
that the IJ would reach the same decision on Liu's credibility if the case were
remanded.
10
We must therefore vacate and remand for further proceedings with respect to
Liu's withholding and CAT claims. We must also vacate the agency's finding
that Liu was ineligible for asylum, and remand for further proceedings with
respect to the timeliness of his application, and, if his application is found to be
timely, with respect to whether he has a well-founded fear of persecution such
as would ultimately entitle him to asylum. 3
CONCLUSION
11
For the foregoing reasons, the petition for review is GRANTED, the BIA's
order is VACATED, and we REMAND for further proceedings consistent with
this Order. Having completed our review, the stay of removal that the Court
previously granted in this petition is VACATED. Any pending request for oral
argument in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).
Notes:
1
Where, as here, the BIA summarily affirms the decision of the IJ without
issuing an opinion,see 8 C.F.R. 1003.1(e)(4), this Court reviews the IJ's
decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54,
58 (2d Cir.2005).
2
The IJ also stated that the record would be "more probative" if it was "[f]or
instance . . . a record to show that he was in the police department on a
particular day, or had a receipt in China for a particular reason, or a medical
record in China on that date." This Court has noted that demands for
contemporaneous documentation must be calibrated to the circumstances of the
petitioner's departureZu Guan Li v. INS, 453 F.3d 129, 140-41 (2d Cir.2006).
The IJ gave no explanation of why it might be reasonable to expect Liu to have
obtained any of the above documents. However, the proper weight to be given
to Liu's police record is a question for the agency on remand.
Because Liu failed to argue before either this Court or the BIA his claims for
relief based on the illegal nature of his departure from China, we consider that
basis for relief abandonedSee 8 U.S.C. 1252(d)(1); Yueqing Zhang v.
Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005).