12‐4888
Jiang v. Holder
BIA
Balasquide, IJ
A087 467 425
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 Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 9th day of April, two thousand
fourteen.
PRESENT:
JON O. NEWMAN,
PIERRE N. LEVAL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
RONG JIANG,
Petitioner,
v. 12‐4888
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney
General; Jennifer L. Lightbody, Senior Litigation
Counsel; Kiley L. Kane, 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 DENIED in part and GRANTED
in part, the decision of the BIA is VACATED insofar as the petition is granted,
and the case is REMANDED for further proceedings consistent with this
decision.
Petitioner Rong Jiang, a native and citizen of China, seeks review of a
November 19, 2012 decision of the BIA affirming a January 24, 2011 decision of
Immigration Judge (“IJ”) Javier Balasquide, denying Jiang’s application for
asylum, withholding of removal and relief under the Convention Against Torture
(“CAT”). In re Rong Jiang, No. A087 467 425 (B.I.A. Nov. 19, 2012), aff’g No.
A087 467 425 (Immig. Ct. N.Y. City Jan. 24, 2011). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
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As an initial matter, although Jiang challenges the denial of relief in
“asylum‐only” proceedings, as opposed to an actual removal order, we
nonetheless have jurisdiction under 8 U.S.C. § 1252(a)(1) because the denial of
relief in these circumstances is the functional equivalent of a removal order. See
Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir. 2006). Under the circumstances of
this case, we have reviewed the IJ’s decision as modified by the BIA. See Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The BIA
affirmed the IJ’s adverse credibility finding and did not reach the IJ’s alternate
findings that even if Jiang was credible, her petition was untimely and she failed
to satisfy her burden of proof on her asylum and withholding of removal claims.
Accordingly, the IJ’s alternate findings are not before us. We review the IJ’s
factual findings under the substantial evidence standard. See 8 U.S.C. §
1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004).
Nonetheless, we may vacate the agency’s decision and remand if the agency has
committed substantial errors, and we cannot state with confidence that the
agency would have made the same decision in the absence of the errors. See Xiao
Ji Chen v. U.S Dep’t of Justice, 434 F.3d 144, 159 (2d Cir. 2006); Cao He Lin v. U.S.
Dep’t of Justice, 428 F.3d 391, 401‐02 (2d Cir. 2005).
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The IJ denied Jiang’s petition on the ground that her testimony was not
credible. Because the IJ’s adverse credibility determination was based on a
mischaracterization of the record and flawed reasoning this determination does
not support the denial of Jiang’s petition. See Zhi Wei Pang v. Bureau of
Citizenship and Immigration Servs., 448 F.3d 102, 107 (2d Cir. 2006); Zhou Yun
Zhang, 386 F.3d at 74 (“[O]ur review is meant to ensure that credibility findings
are based upon neither a misstatement of the facts in the record nor bald
speculation or caprice.”). For example, the IJ inaccurately stated that Jiang
“indicated that she and [her] witness attended church services for two weeks in a
row,” leading him to conclude that Jiang’s testimony was “obviously . . .
inconsistent with the witness testimony.” CAR 16 (emphasis added). In fact,
however, Jiang merely testified that she saw her witness at church the past two
Sundays, CAR 108 (emphasis added), while her witness testified that she had not
attended services the Sunday before last, but that she had gone to the church later
in the day to pray. CAR 120‐21. These statements are not inconsistent, let alone
obviously so, and the IJ erred in basing his credibility determination on a
misconstruction of this testimony. Although the IJ additionally based his adverse
credibility determination on the fact that Jiang presented witnesses who
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impeached each other, we cannot state with confidence that the IJ would have
still reached the same conclusion about Jiang’s credibility had he not made the
error in reasoning we have identified. That is particularly the case because the IJ
declined to decide which of petitioner’s witnesses testified truthfully about
whether one witness had been paid to testify at the other witness’s merits
hearing, and absent such a determination it would be unclear what impact the
witnesses’ contradictory testimony on a matter not material to Jiang’s claims
should have on Jiang’s own credibility.
With respect to petitioner’s application for relief under CAT, the IJ
concluded that even if petitioner’s testimony was credited, Jiang had failed to
prove that it is more likely than not that she would be tortured if removed to
China. 8 C.F.R. § 208.16(c)(2). The BIA affirmed this aspect of the IJ’s decision.
Because Jiang failed to contest the agency’s finding with respect to her CAT claim
in her brief to this Court, any challenge to the agency’s resolution of that claim is
deemed waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 546 n.7
(2d Cir. 2005).
For the foregoing reasons, the petition for review is DENIED in part and
GRANTED in part, the decision of the BIA is VACATED insofar as the petition is
5
granted, and the case is REMANDED for further proceedings consistent with this
decision.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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