16-2182
Zhang v. Sessions
BIA
Poczter, IJ
A206 333 845
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
21st day of August, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
FANGYONG ZHANG,
Petitioner,
v. 16-2182
NAC
JEFFERSON B. SESSIONS, III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Zhen Liang Li, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Linda S.
Wernery, Assistant Director;
William C. Minick, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
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 is REMANDED for further proceedings consistent with
this Order.
Petitioner Fangyong Zhang, a native and citizen of China,
seeks review of a May 26, 2016, decision of the BIA affirming
a January 7, 2016, decision of an Immigration Judge (“IJ”)
denying Zhang’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In re
Fangyong Zhang, No. A206 333 845 (B.I.A. May 26, 2016), aff’g
No. A206 333 845 (Immig. Ct. N.Y. City Jan. 7, 2016). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well established.
See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
162, 165-66 (2d Cir. 2008).
The governing REAL ID Act credibility standard provides that
the agency must “[c]onsider[] the totality of the
circumstances,” and may base a credibility finding on an
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applicant’s “demeanor, candor, or responsiveness,” the
plausibility of her account, and inconsistencies in her or her
witness’s statements, “without regard to whether” they go “to
the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
defer . . . to an IJ’s credibility determination unless . . . it
is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
In this case Zhang based her asylum claim on two forced
abortions performed in China. She testified, as the IJ recounted,
“that as a result of a poorly-performed abortion she developed
uterine fibroids, which necessitated a hysterectomy.” Certified
Administrative Record (“CAR”) 46. The IJ determined that she
was not credible, and the BIA upheld this finding.
We conclude that there are ambiguities in the record that
preclude a fair opportunity for even the deferential review we
are obliged to perform. See Poradisova v. Gonzales, 420 F.3d
70, 77 (2d Cir. 2005) (“[M]inimum level of analysis” required
“if judicial review is to be meaningful.”). First, the IJ relied
on what she deemed an inconsistency between Zhang’s testimony
on cross-examination and redirect. On cross, she was asked
whether she had to go for regular checkups in China to make sure
she was not pregnant, and she answered, “No.” CAR 88. On redirect,
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her lawyer asked, “We know that you did not go to the
gynecological checkups, but were you required to attend any in
the period between 2001 and 2005?” Zhang answered, “Yes, but
I didn’t go.” Id. 92-93.
That apparent inconsistency precipitated the following
colloquy:
IJ: “Ma’am, why is it that you told the trial attorney that
you were not required to have gynecological checkups yet you
just told your attorney that you were[?]”
Ms. Zhang to Judge: “In the village it’s very complicated.
Sometimes I go. Sometimes I don’t go. And they call me on the
phone, because too many people.”
Judge to Ms. Zhang: “What I’m asking is why did you give
two different answers to the same question?”
Ms. Zhang to Judge: “Yes, there were regular checkups, but
I didn’t go.”
The matter was not further pursued, either by the IJ or
counsel.
On this record, it is unclear whether Zhang was saying that
she was required to have checkups and that she was not required
to have them, or was saying and endeavoring to explain that her
“two answers” meant that she was required to have checkups but
did not go to have them. The ambiguity could and should have
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been readily cleared up.
Second, the IJ said that Zhang, in her asylum application,
“did not write anything about her husband leaving her because
of [her] surgery,” although she testified that the husband left
her because she could not have any more children. The IJ deemed
the omission about why the husband left significant because “she
should have been able to make the same statements [about the
husband leaving] in a written format.” Id. 47. It is not clear
whether the IJ thought that not stating why the husband left
raised a doubt as to whether the hysterectomy had in fact been
performed. Yet Zhang produced a document on the letterhead of
a California physician stating that “the above named patient
[Zhang] had her uterus removed (hysterectomy). Id. 111.
Third, it is not clear whether the IJ doubted the
authenticity of the doctor’s document. The IJ characterized the
document as a “form letter,” id. 47, when it is in fact a blank
form with the line for a description of the medical procedure
performed filled in by the physician. The document lists a phone
number for any questions. The IJ concluded that the document
“provides very minimal support for [Zhang’s] claim,” id.,
leaving it unclear whether the IJ was doubting the hysterectomy
or the abortions. And the IJ left it unclear why the physician’s
document provided “minimal support.”
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Under all the circumstances, the appropriate course is to
remand to the BIA for a remand to the IJ so that the ambiguities
we have identified can be clarified with a renewed questioning
of Ms. Zhang.
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
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