17-850
Lin v. Whitaker
BIA
Hom, IJ
A205 583 081
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of December, two thousand eighteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 SHIJING LIN, AKA XUE JING LIN,
14 Petitioner,
15
16 v. 17-850
17 NAC
18 MATTHEW G. WHITAKER, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General, Civil Division;
27 Song E. Park, Senior Litigation
28 Counsel, Office of Immigration
29 Litigation; Matt A. Crapo, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Shijing Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a March 15, 2017,
7 decision of the BIA affirming a July 26, 2016, decision of an
8 Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Shijing Lin, No. A205 583 081 (B.I.A. Mar.
11 15, 2017), aff’g No. A205 583 081 (Immig. Ct. N.Y. City Jul.
12 26, 2016). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 We have reviewed the IJ’s decision as modified by the
15 BIA decision, i.e., minus the adverse credibility finding
16 that the BIA did not assess and the BIA’s rejection of the
17 IJ’s finding that there was available evidence to document
18 Lin’s alleged arrest, detention, and fine. See Xue Hong Yang
19 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
20 The applicable standards of review are well established. See
21 8 U.S.C. § 1252(b)(4)(B); Chuilu Liu v. Holder, 575 F.3d 193,
22 196 (2d Cir. 2009).
2
1 “The testimony of the applicant may be sufficient to
2 sustain the applicant’s burden without corroboration, but
3 only if the applicant satisfies the trier of fact that the
4 applicant’s testimony is credible, is persuasive, and refers
5 to specific facts sufficient to demonstrate that the
6 applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
7 also Chuilu Liu, 575 F.3d at 196-97. “In determining whether
8 the applicant has met [his] burden, the trier of fact may
9 weigh the credible testimony along with other evidence of
10 record. Where the trier of fact determines that the
11 applicant should provide evidence that corroborates otherwise
12 credible testimony, such evidence must be provided unless the
13 applicant does not have the evidence and cannot reasonably
14 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii).
15 Because the BIA did not reach the IJ’s adverse
16 credibility determination, we presume Lin to be credible.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 Given this presumption of credibility, the BIA should have
19 identified why Lin’s testimony was lacking to the extent
20 that corroboration was necessary. See 8 U.S.C.
21 § 1158(b)(1)(B)(ii); Poradisova v. Gonzales, 420 F.3d 70,
22 77 (2d Cir. 2005) (“We require a certain minimum level of
3
1 analysis from the IJ and BIA opinions denying asylum . . .
2 if judicial review is to be meaningful.”). Accordingly, we
3 remand for further explanation as to why corroboration was
4 required.
5 In addition, given the BIA’s conclusion that there was
6 likely no available corroboration for Lin’s arrest,
7 detention, and fine, we find insufficient grounds for the
8 BIA’s denial of relief on corroboration grounds as
9 currently explained. There is little support for the
10 agency’s conclusion that documentary evidence of medical
11 treatment is reasonably available because the record does
12 not support the agency’s conclusion that Lin received any
13 treatment. There is no reference to medical treatment in
14 Lin’s application, his direct testimony, or his supporting
15 evidence. The only reference to any medical treatment came
16 when the IJ questioned Lin directly. When asked by the IJ
17 if he saw a doctor, Lin said “[y]es, doctor for injury, um-
18 hum.” But when the IJ asked why Lin did not get a letter
19 from the doctor, Lin said that “the injury doctor just told
20 the person to come and take a look at me. Took a look at
21 me and then just went away.” It is unclear who “the
22 person” was or if Lin actually visited a doctor or a
4
1 hospital. Given this lack of clarity, the agency did not
2 sufficiently explain why a doctor’s affidavit or hospital
3 records were reasonably available. See 8 U.S.C.
4 § 1158(b)(1)(B)(ii); Poradisova, 420 F.3d at 77.
5 The BIA also failed to assess the country conditions
6 evidence in light of Lin’s presumptively credible
7 testimony. The BIA determined that the background evidence
8 was generalized and insufficient to demonstrate that Lin
9 would be singled out for persecution, but conceded that it
10 showed raids on unregistered churches and detention of
11 leaders and missionaries. Assuming the credibility of
12 Lin’s testimony and given both the BIA’s conclusion that
13 evidence of his arrest and detention was not reasonably
14 available, and the problem discussed above with the
15 agency’s demand for medical evidence, the BIA missed a step
16 in its analysis. Given the credible testimony and the lack
17 of available corroboration, the BIA failed to explain why
18 Lin did not establish past persecution and thus why there
19 was no resulting presumption of future persecution. See 8
20 C.F.R. § 1208.13(b)(1) (presumption of future persecution
21 applies where applicant has established past persecution).
22
5
1 We remand for further consideration of Lin’s claims
2 either in light of the IJ’s adverse credibility determination
3 or with explanation of why Lin failed to meet his burden of
4 proof if his testimony is presumed credible.
5 For the foregoing reasons, the petition for review is
6 GRANTED, the BIA’s decision is VACATED, and the case is
7 REMANDED for further proceedings consistent with this order.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
6