14-3523
Li v. Lynch
BIA
Hom, IJ
A087 787 895
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 TO 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
26th day of April, two thousand sixteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
XUE HUA LI,
Petitioner,
v. 14-3523
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jim Li, Flushing, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Daniel
E. Goldman, Senior Litigation
Counsel; Nicole N. Murley, 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 case REMANDED for further proceedings.
Petitioner Xue Hua Li, a native and citizen of the People’s
Republic of China, seeks review of an August 29, 2014, decision
of the BIA, affirming a September 24, 2012, decision of an
Immigration Judge (“IJ”) denying Li’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Xue Hua Li, No. A087 787 895 (B.I.A.
Aug. 29, 2014), aff’g No. A087 787 895 (Immig. Ct. N.Y. City
Sept. 24, 2012). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA, i.e., minus the basis for
denying relief that the BIA found waived (the IJ’s pretermission
of asylum). See Xue Hong Yang v. U.S. Dep’t of Justice, 426
F.3d 520, 522 (2d Cir. 2005). Li expressly waives any challenge
to the agency’s denial of CAT relief. The only issue before
us is the agency’s denial of withholding of removal for lack
of corroboration notwithstanding that the IJ found “that
respondent was a credible witness about her forcible abortion.”
The applicable standards of review are well established. 8
2
U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 193,
194-96 (2d Cir. 2009).
“While consistent, detailed, and credible testimony may
be sufficient to carry the alien’s burden, evidence
corroborating h[er] story, or an explanation for its absence,
may be required where it would reasonably be expected.” Diallo
v. INS, 232 F.3d 279, 285 (2d Cir. 2000); see also 8 U.S.C. §
1231(b)(3)(C) (citing § 1158(b)(1)(B)(ii)). Before denying a
claim solely based on an applicant’s failure to provide
corroborating evidence, the IJ must, either in his decision or
otherwise in the record, (1) identify the specific evidence
missing and explain why it was reasonably available,
(2) provide an opportunity to explain the omission, and
(3) assess any explanation given. See Chuilu Liu, 575 F.3d at
198.
Here, the IJ determined that Li testified credibly, but the
IJ unreasonably required her to provide a hospital certificate
as evidence of her forced abortion. This Court and the BIA have
held that an applicant’s credibility may be damaged by the
submission of an abortion certificate as evidence of a forced
abortion because U.S. State Department reports inform us that
hospitals in China issue such certificates for voluntary
abortions only. See Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d
3
Cir. 2006); see also Cao He Lin v. U.S. Dep’t of Justice, 428
F.3d 391, 405 (2d Cir. 2005). The agency thus erred in finding
such evidence reasonably available. See Cao He Lin, 428 F.3d
at 405.
Furthermore, the agency did not properly evaluate Li’s
explanations for the missing evidence, confusing Li’s
explanations as to why she did not have evidence of her pregnancy
or subsequent fertility treatments as her explanation for her
lack of corroborating evidence of her abortion. See id. at 403.
Because we cannot confidently predict that the agency would have
made the same decision absent the identified errors, remand is
required. See id. at 395.
For the foregoing reasons, the petition for review is
GRANTED, and the case is REMANDED for further proceedings
consistent with this order.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
4