09-3844-ag
Qiu v. Holder
BIA
Balasquide, IJ
A098 593 567
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 18 th day of August, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
DENNY CHIN,
Circuit Judges.
_______________________________________
BI YING QIU,
Petitioner,
v. 09-3844-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Shelley R. Goad, Assistant Director;
Kristen Giuffreda Chapman, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is REMANDED.
Petitioner Bi Ying Qiu, a native and citizen of the
People’s Republic of China, seeks review of a August 17, 2009,
order of the BIA, affirming the September 13, 2007, decision
of Immigration Judge (“IJ”) Javier E. Balasquide, denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Bi Ying
Qiu, No. A098 593 567 (B.I.A. Aug. 17, 2009), aff’g No. A098
593 567 (Immig. Ct. N.Y. City Sept. 13, 2007). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Because the BIA stated, “We adopt and affirm the decision
of the Immigration Judge,” we review the IJ’s decision. See
Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d
Cir. 2007). 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).
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The IJ made an adverse credibility determination. 1 In
support of that determination, the IJ relied primarily on
discrepancies as to the year in which three events occurred:
the government’s banning of the Falun Gong, Qui’s becoming
involved with the Falun Gong, and Qui’s first persecution for
his Falun Gong activity. Qui testified that these three
events occurred in 1997, but also testified that all three
occurred in 1999. At times he answered 1999 and immediately
corrected himself to say 1997. However, at all times Qui
linked the year of these events to the time when he was 17
years old. Since He testified that he was born in 1982, he was
17 in 1999, and obviously intended to place the three events
in the year 1999. As he stated when pressed about the
discrepancies as to years, “I only remember that I was 17
years old at that time, that’s what I remember the most, that
I was 17. . . . In terms of which year, I don’t remember.”
When pressed on cross-examination, “You don’t remember what
year you were 17 years old?” he answered, “I didn’t do the
calculation.”
Because Qiu filed her asylum application before May 11, 2005,
1
the amendments made to the Immigration and Nationality Act by the
REAL ID Act of 2005 do not apply to her asylum application. See
Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005).
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Incredibly, Qui’s lawyer conducted no redirect
examination, which could have readily made the record even
clearer that Qui at all times meant to place the key events in
the year 1999, 17 years after the year of his birth.
Although an IJ is entitled to discredit an applicant’s
testimony based on material discrepancies, an IJ is obliged to
consider an applicant’s explanation. See Cao He Lin v. U.S.
Dep’t of Justice, 428 F.3d 391, 403 (2d Cir. 2005). In this
case, the IJ failed to do so. Instead, he simply recounted
the three events that Qui placed in both 1997 and 1999 and did
not reckon with her explanation that she was sure that all
three events occurred in the year when she was 17, i.e., 1999.
This flaw in the IJ’s reasoning requires a remand for
reconsideration.
For the foregoing reasons, the petition for review is
GRANTED, and the case is REMANDED for further consideration.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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