13-4596
Wu v. Lynch
BIA
Balasquide, IJ
A087 558 317
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 February, two thousand sixteen.
PRESENT:
ROSEMARY S. POOLER,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
YONG JUAN WU,
Petitioner,
v. 13-4596
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Giacchino J. Russo, Flushing, New
York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Blair T. O’Connor,
Assistant Director; John B. Holt,
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.
Petitioner Yong Juan Wu, a native and citizen of the
People’s Republic of China, seeks review of a November 6,
2013, order of the BIA, affirming the April 2, 2012,
decision of an Immigration Judge (“IJ”), which denied
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”) on credibility grounds.
In re Yong Juan Wu, No. A087 558 317 (B.I.A. Nov. 6, 2013),
aff’g No. A087 558 317 (Immig. Ct. New York City Apr. 2,
2012). We assume the parties’ familiarity with the
underlying facts and procedural history in this case. We
refer to the different written statements attached to Wu’s
three asylum applications (the applications are dated May
2009, October 2009, and December 2010) as her first, second,
and third statements, respectively.
Under the circumstances of this case, we review the
IJ’s decision as modified by the BIA decision. See Xue Hong
Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
2
2005). 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).
For asylum applications governed by the REAL ID Act,
such as Wu’s, the agency may base a credibility finding on
an applicant’s demeanor, the plausibility of her account,
and inconsistencies in her statements, without regard to
whether they go “to the heart of the applicant’s claim.” 8
U.S.C. § 1158(b)(1)(B)(iii). “We 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 an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d 162 at 167 (2d Cir. 2008). Here, substantial
evidence does not support the adverse credibility
determination.
The adverse credibility determination was based on five
inconsistencies in Wu’s testimony. Three of the
inconsistencies were between her second statement and her
testimony. The IJ not only acknowledged that the second
statement was incorrectly translated through no fault of
Wu’s, but granted a continuance precisely so that the
statement could be re-translated.
3
As a basis for determining Wu’s lack of credibility,
the agency, however, seized on the clear inadequacy of Wu’s
former counsel’s explanation for the inaccurate translation.
Those reasons for the mistranslation are entirely unrelated
to the fact that Wu’s testimony was, in fact, mistranslated.
The non-responsiveness of the explanation implicates Wu’s
lawyer’s competence and candor, but it does not implicate
Wu’s credibility. Accordingly, it was error for the agency
to rely upon the discrepancies between Wu’s testimony before
the IJ and her second statement with regard to how often she
attended church in Singapore, how long she was detained in
China, and how many times she traveled to Singapore.
The agency properly relied on two other discrepancies:
Wu’s inconsistent testimony regarding when she first
returned to China from Singapore and her testimony regarding
her arrest history in the United States. However, whether
the agency would conclude that a totality of the
circumstances support an adverse credibility determination
based only on these two inconsistencies is unclear.
Accordingly, remand to the agency is not futile. Cf. Cao He
Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.
2005).
4
For the foregoing reasons, the petition for review is
GRANTED and this matter is REMANDED to the BIA for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5