12-1465
Zheng v. Holder
BIA
Cheng, IJ
A095 764 339
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
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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 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
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 24th day of July, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
QIUYUN ZHENG,
Petitioner,
v. 12-1465
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Farah Loftus, Century City, CA.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Francis Fraser,
Assistant Director; Kate D. Balaban,
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 and the matter is remanded for further
consideration.
Qiuyun Zheng, a native and citizen of the People’s
Republic of China, seeks review of a March 15, 2012,
decision of the BIA affirming the May 11, 2010, decision of
Immigration Judge (“IJ”) Mary M. Cheng, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Qiuyun
Zheng, No. A095 764 339 (B.I.A. Mar. 15, 2012), aff’g No.
A095 764 339 (Immig. Ct. N.Y. City May 11, 2010). 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 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
For applications such as Zheng’s, governed by the
amendments made to the Immigration and Nationality Act by
the REAL ID Act of 2005, the agency may, considering the
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totality of the circumstances, 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 . . . claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
Cir. 2008). We will “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.
Although the IJ based her credibility finding on some
portions of Zheng’s testimony that were inconsistent and
some inconsistencies between his testimony and the
documentary evidence, she also relied on two related
inconsistencies in his testimony that are trivial. First,
she noted that at the hearing on May 11, 2010, Zheng
testified on direct examination that his fiancée’s abortion
occurred on October 18, 2008, and on cross-examination that
it occurred on October 19, 2008. Second, the IJ noted that
Zheng testified on direct examination that his fiancée came
home from the hospital on October 20, and on cross-
examination that she came home on October 18. When
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confronted with these inconsistencies, he testified that the
October 18 date for both events was correct.
These one- and two-day inconsistencies, which Zheng
promptly corrected, in testimony given more than a year and
one half after the events, are too trivial to lend support
to a finding that Zheng lacked credibility. See Xiu Xia Lin,
534 F.3d at 166 (“We must assess whether the IJ has provided
specific, cogent reasons for the adverse credibility finding
. . . .”) (internal quotation marks omitted). In view of
the fact that the other inconsistencies noted by the IJ are
at best of only marginal significance, we conclude that a
remand is warranted for reconsideration of Zheng’s
credibility, without regard to the two items concerning the
October dates. And, although we have no doubt that the IJ
could reconsider the matter impartially, putting these two
items out of her consideration, we believe there is a risk
of an appearance of partiality if the same IJ reconsiders
the matter. We therefore direct that reconsideration occur
at a new hearing before a different IJ.
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For the foregoing reasons, the petition for review is
GRANTED, and the matter is remanded for reconsideration
before a different IJ.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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