891 F.3d 67 (2nd Cir. 2018), 16-2262-ag, Hong Fei Gao v. Sessions
|Docket Nº:||16-2262-ag, 16-2493-ag|
|Citation:||891 F.3d 67|
|Opinion Judge:||Chin, Circuit Judge|
|Party Name:||HONG FEI GAO, aka Xue Liang Zhang, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent. Hao Shao, Petitioner, v. Jefferson B. Sessions III, United States Attorney General, Respondent.|
|Attorney:||Mona Liza Fabular Lao, New York, New York, for Petitioner Gao. Joshua E. Bardavid, Law Office of Joshua E. Bardavid, New York, New York, for Petitioner Shao. Brett F. Kinney and Jesse Lloyd Busen, Trial Attorneys, Jeffery R. Leist, Senior Litigation Counsel, Holly M. Smith, Senior Litigation Coun...|
|Judge Panel:||Before: Winter and Chin, Circuit Judges, and Korman, Judge.|
|Case Date:||May 25, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: December 11, 2017
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ON PETITIONS FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
Mona Liza Fabular Lao, New York, New York, for Petitioner Gao.
Joshua E. Bardavid, Law Office of Joshua E. Bardavid, New York, New York, for Petitioner Shao.
Brett F. Kinney and Jesse Lloyd Busen, Trial Attorneys, Jeffery R. Leist, Senior Litigation Counsel, Holly M. Smith, Senior Litigation Counsel, Laura M. Cover, Law Clerk, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: Winter and Chin, Circuit Judges, and Korman, Judge.[*]
Chin, Circuit Judge
These petitions for review heard in tandem challenge two decisions of the Board of Immigration Appeals (the "BIA"), affirming decisions by two Immigration Judges ("IJs"), denying asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") to two petitioners seeking relief from religious persecution in China on adverse credibility grounds. During removal proceedings, petitioners testified regarding the medical attention they received for injuries they sustained from police beatings. The IJs and the BIA relied substantially on the omission of that information from petitioners initial applications and supporting documents to determine that petitioners lacked credibility.
On appeal, petitioners principally challenge the agencys adverse credibility determinations. In light of the totality of the circumstances and in the context of the record as a whole, in each case we conclude that the IJ and BIA erred in substantially relying on certain omissions in the record. Accordingly, we grant the petitions, vacate the decisions of the BIA, and remand the cases to the BIA for further proceedings consistent with this opinion.
We summarize the facts and procedural history of each case separately, as follows:
I. Hong Fei Gao
Around April 2010, Gao, a native and citizen of China, entered the United States without inspection. In September 2010, Gao applied for asylum, withholding of removal, and protection under the CAT.
In his application, which included a short personal statement in Chinese, Gao explained that in February 2009, influenced by his mother, he began practicing Christianity in China. In November 2009, while he was praying at a friends house with other church members, the police broke into the house and arrested Gao and his friends. Gao was brought to the police station and was detained for ten days, during which he was repeatedly interrogated and beaten. His family spent money and relied on connections to secure Gaos release, and the police required Gao to sign a letter promising not to attend church activities anymore. After his release and before he recovered from his
detention, Gao was fired from his restaurant job. He left China in March 2010 and continued to practice Christianity in the United States. The statement did not provide any description of any medical treatment.
In December 2010, Gao was served with a notice to appear in removal proceedings. Through counsel, Gao conceded removability.
On September 12, 2014, following a hearing on September 27, 2012, the IJ (Loprest, IJ ) issued written orders denying Gaos application for asylum, withholding of removal, and protection under the CAT, and ordered Gao removed to China. The IJ denied relief principally on adverse credibility grounds.1 The IJ cited the following "evidentiary shortcomings that might not undermine [Gaos] case individually, but when considered cumulatively," led the IJ to conclude that Gao lacked credibility, Gao Cert. Admin. R. 64:
• Gao testified that he was interrogated by police four times and was beaten during those interrogations, but his application omitted the number of interrogations and the fact that his injuries required medical attention.
• Gao testified that he was beaten and visited a clinic, but Gaos mothers letter did not mention that Gao was physically injured or that she and Gaos father took him to a clinic. Instead, her letter stated that she was "afraid that [he] would be beaten by the police." Id. at 251.
• Gao could not explain why his Chinese birth certificate and a letter from his underground church used identical photographs.
• Gao could not explain how he traveled under an electronic airline ticket in his real name while simultaneously using a fraudulent passport.
• Gao lacked candor and responsiveness, as he responded to questions vaguely, asked for many questions to be repeated, and paused for a long time before answering.
Gao failed to explain the inconsistencies and omissions to the IJs satisfaction. The IJ was not persuaded by Gaos explanation that he did not know why his mother failed to mention the clinic visit in her letter. The IJ noted that he reached the adverse credibility determination "with some reluctance" as "the documentary record appears to corroborate certain aspects of Gaos claim," citing letters, photographs, and statements relating to Gaos mistreatment in China and his practice of Christianity in the United States, as well as U.S. Department of State reports on religious persecution in China. Id. at 64.
On June 6, 2016, the BIA affirmed the IJs decision and dismissed Gaos appeal, finding no clear error in the IJs determination that Gao lacked credibility. In re Hong Fei Gao, No. A200 922 341 (B.I.A. June 6, 2016), affg No. A200 922 341 (Immig. Ct. N.Y. City Sep. 12, 2014). Although it noted that some of the IJs findings did not support an adverse credibility determination, citing one example of the discrepancy relating to the number of interrogations, the BIA upheld the adverse credibility determination based on two omissions: (1) the omission in Gaos mothers letter of the facts that he was physically injured and that his parents took him to a clinic, and (2) the omission in Gaos
asylum application of the fact that he required medical treatment and the extent of his mistreatment. After considering Gaos proffered explanations— he did not know why his mother failed to mention his medical treatment, he did not request that her letter include all details about what happened after his release, and he could not produce a receipt because the clinic did not give him one— the BIA found no error in the IJs conclusion that Gao did not reasonably explain the omissions.
On appeal, Gao challenges the adverse credibility determination, arguing that his testimony was not inconsistent with his asylum application or his mothers letter. He contends that the omissions were minor, collateral, and insufficient to support an adverse credibility determination.
II. Hao Shao
Around September 2010, Shao, a native and citizen of China, entered the United States without inspection. In May 2011, Shao applied for asylum, withholding of removal, and protection under the CAT.
In his updated application, Shao explained that he began practicing Christianity in January 2003 through a neighbors influence and he was baptized in October 2005. One night in April 2010, while he was gathered with other Christians at someone elses house, the police broke into the house, confiscated their religious texts, and arrested Shao and others. Shao was brought to the police station, interrogated, and severely beaten. He was detained for eleven days and interrogated two more times, but as he testified during immigration proceedings, he was not physically injured the other two times. Shaos application further explained that his family spent money to secure his release, and the police required Shao to report to the station twice a month and sign a letter promising not to participate in the underground church anymore. Shao was later dismissed by his employer and was regularly monitored by police. He left China in August 2010 and continued to practice Christianity in the United States. Shaos application did not provide any description of his medical treatment, other than to say that "[a]fter I returned home, my mother salved my wounds with tear[s]." Shao Cert. Admin. R. 423.
In July 2011, Shao was served with a notice to appear in removal proceedings. Through...
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