10-1212-ag
Wang v. Holder
BIA
Nelson, IJ
A099 930 567/568
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 30th day of March, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.
_______________________________________
SHENGHUA WANG, WEIGUANG LIU,
Petitioners,
v. 10-1212-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Guang Jun Gao, Flushing, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Christina Bechak
Parascandola, 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.
Shenghua Wang and Weiguang Liu, natives and citizens of
China, seeks review of a March 5, 2010, decision of the BIA
affirming the July 15, 2008, decision of Immigration Judge
(“IJ”) Barbara A. Nelson, which denied Shenghua Wang’s
application for asylum, withholding of removal and relief
under the Convention Against Torture (“CAT”), on which
Weiguang Liu was named as a derivative beneficiary. In re
Shenghua Wang, Weiguang Liu, Nos. A099 930 567/568 (B.I.A.
Mar. 5, 2010), aff’g Nos. A099 930 567/568 (Immig. Ct. N.Y.
City July 15, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we review 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 Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Manzur v. DHS, 494
F.3d 281, 289 (2d Cir. 2007).
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As a preliminary matter, the Respondent’s motion to
dismiss the petition for review for lack of jurisdiction
under 8 U.S.C. § 1252(b)(1) will be denied because we deem
the petition for review timely filed. See Contino v. United
States, 535 F.3d 124, 127 (2d Cir. 2008) (declining to
conclude that an electronically filed notice of appeal was
untimely despite the appellant’s failure to comply with a
local rule mandating that the notice be filed by physical
mail). Petitioners’ counsel should take note that Second
Circuit Local Rule 25.1(d) sets forth the proper procedure
for filing initiating documents, including petitions for
review.
Because the agency failed to consider material evidence
supporting Wang’s claim, we grant the petition for review
and remand the case to the agency. The IJ’s adverse
credibility determination was based in large part on the
perceived inconsistencies in Wang’s testimony regarding her
first marriage and the child she claimed she and her first
husband had together, in conjunction with the lack of
corroborating evidence showing that the first marriage did
occur, and that a child resulted from the marriage. The
inconsistency that the IJ pointed to as casting doubt on
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whether Wang had in fact previously been married and whether
she had a child in 1988 came from two exchanges during
Wang’s testimony on direct examination. The first exchange
concerned whether Wang had any children:
Q. Okay. And are you married to the gentleman who is
in the court?
A. Correct.
Q. Can you identify him by name please?
A. Liu Wei Guang.
Q. When did you marry?
A. We were married on June 4th, 1998.
Q. Were you married in China?
A. Yes.
Q. Do you have any children?
A. No.
Q. Does your husband have any children?
A. My ex-husband, we had a daughter.
Q. Okay, so you do have a child with a prior
marriage.
A. Correct, correct.
Q. What’s her name?
A. Qua Ray.
Q. And when was she born?
A. She was born on July 16th, 1988.
Q. When did you divorce?
A. I was divorced on May 4th, 1995.
The second exchange concerned how many times Wang had been
pregnant:
Q. Could you tell us the reason that you’re asking
for asylum in the U.S.?
A. In China I suffered two times persecution. Two
pregnancies, two persecutions. Right.
Q. How were you persecuted, in what way?
A. Well the first time when I was pregnant, they
forced me to have an abortion.
Q. And when did that happen?
A. On the first time, the first pregnancy was in
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1998. That’s when I first, just got married.
The IJ found, based on this testimony, that “[Wang’s]
consistently forgetting the fact that she had the pregnancy
in ‘87 or ‘88, and that she had a daughter . . . is the
serious inconsistency in the evidence.” When taken in
context, however, the testimony does not support the IJ’s
determination that there was a serious inconsistency. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)
(“[W]e will reverse where the adverse credibility
determination is based upon . . . an incorrect analysis of
the testimony.”). In the first exchange, based on the prior
questions, Wang interpreted the question “[d]o you have any
children?” as asking whether she and her second husband had
any children together, and after answering “no,” in response
to the next question, she immediately clarified that she and
her ex-husband did have a daughter together. In the second
exchange, it seems clear that Wang was testifying as to how
she had been persecuted; that is, she had two pregnancies
that ended in forced abortions. In the context of the
questions asked, Wang’s testimony was not that she had
gotten pregnant for the first time ever in 1998, but rather
that the first pregnancy that ended in abortion occurred in
1998.
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The IJ further found that Wang “offered no evidence to
establish that she, in fact, gave birth to a child. She has
not offered any evidence that she had a prior marriage.”
However, one document that Wang offered as evidence, and the
IJ marked as exhibit 8, was an “Only Child Preferential
Treatment Certificate.” This certificate indicates a date
of issue of August 23, 1988, and states that ShengHua Wang
and KeGang Huang are the parents of Lei Huang, a female born
on July 16, 1988. It is unclear from the record whether the
IJ specifically considered this exhibit. Although the IJ
noted that Petitioners offered an “only child preferential
treatment certificate issued to the wife,” the IJ did not
indicate what weight, if any, she gave to this document, nor
did she discuss its content. The IJ did discuss the
household register, which indicates a date of issue of May
12, 1998, and provides that Lei Huang, born July 16, 1988,
is the daughter of ShengHua Wang, but concluded that the
document was insufficient to show that Wang had given birth
to a daughter.
Although Petitioners explicitly cited the only child
certificate on appeal to the BIA, the BIA found that the
record supported the IJ’s conclusion that Wang failed to
offer evidence of either her prior marriage or that the
6
claimed marriage resulted in her giving birth to a daughter
in 1988. The BIA agreed that the household register was
insufficient corroboration,1 but did not acknowledge the
only child certificate. The BIA based its affirmance of the
adverse credibility determination entirely on the perceived
discrepancies in Wang’s testimony as to how many times she
had been pregnant and given birth, and the perceived lack of
evidence corroborating Wang’s claim of a first marriage and
daughter born in 1988. The BIA also found, pursuant to its
de novo review, that in the absence of corroborating
evidence Wang failed to meet her burden of proof,
irrespective of the IJ’s credibility finding.
In light of the problems with the inconsistency finding
and there being no indication that the agency considered the
only child certificate, the agency’s finding that Wang was
not credible as to the existence of a daughter born in 1988
is flawed. See Delgado v. Mukasey, 508 F.3d 702, 705 (2d
Cir. 2007) (the substantial evidence standard “requires a
certain minimum level of analysis from the IJ and BIA, as
well as some indication that the IJ considered material
evidence supporting a petitioner’s claim.” (internal quotes
1
Despite the BIA’s statement, the household registry
does include the daughter’s date of birth and place of
birth. The listed date of birth matches the date of
birth listed on the only child certificate, and testified
to by Wang.
7
omitted)).
The IJ also based her adverse credibility determination
on the lack of evidence submitted by Wang supporting the
proposition that having a child with her second husband
would be in violation of China’s family planning policy. If
the IJ were to find that Wang did have a daughter in 1988,
such a conclusion might affect her finding regarding
demonstrating a violation of the family planning
regulations, as it is unclear if the IJ’s finding on that
point was based on an assumption that Wang did not have a
child in 1988, and thus would not be in violation of any
existing one-child policy.
The only other bases for the IJ’s adverse credibility
determination were the perceived implausibility of Wang’s
actions when she was six months pregnant in 1999, and an
inconsistency between Wang’s asylum application and her
testimony regarding her conversation with family planning
officials. The IJ calls the latter inconsistency “minor”
and notes that “without the foregoing problems, [she] would
not even consider [it] a basis for finding [Wang]
incredible.” As to the IJ’s finding of implausibility
regarding Wang’s actions during her pregnancy in 1999, that
finding was impermissibly speculative, and did not take into
account Wang’s explanation for her behavior. An IJ’s
8
findings regarding inconsistencies or implausibilities may
not be based upon bald speculation. See Yuanliang Liu v.
U.S. Dep’t of Justice, 455 F.3d 106, 110-111 (2d Cir. 2006);
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 (2d
Cir. 2006). Moreover, the IJ must take into account
explanations for, and responses to, credibility concerns.
See Pavlova v. INS, 441 F.3d 82, 89-90 (2d Cir. 2006)
(“[W]here it is not apparent on the face of the record that
the IJ has considered the applicant’s responses to the IJ’s
credibility concerns, we . . . require the IJ to say enough
to allow us . . . to review [] the reasons for rejecting the
applicant’s testimony.”). Because the agency’s decision
depended upon both impermissible speculation and a perceived
lack of corroboration, we cannot confidently predict that
the same decision would be reached upon remand. See Xiao Ji
Chen, 471 F.3d at 339 (holding that remand is futile “when
the reviewing court can ‘confidently predict’ that the
agency would reach the same decision absent the errors that
were made”) (quoting Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d 391, 406 (2d Cir. 2005)).
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For the foregoing reasons, the petition for review is
GRANTED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
10