Chen v. Garland

75 F.4th 109

Zhi Bo CHEN, aka Zhibo Chen, aka Chen Zhibo, aka Bo Lin, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.

Docket No. 19-715-ag

August Term, 2022

United States Court of Appeals, Second Circuit

Submitted: November 18, 2022

Decided: July 25, 2023

Gary J. Yerman, The Yerman Group, LLC, New York, NY, for Petitioner Zhi Bo Chen, AKA Zhibo Chen, AKA Chen Zhibo, AKA Bo Lin

Jennifer A. Bowen, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Anthony C. Payne, Assistant Director, on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent Merrick B. Garland, United States Attorney General

Before: JACOBS, LOHIER, and NATHAN, Circuit Judges.

LOHIER, Circuit Judge:

Petitioner Zhi Bo Chen petitions for review of a March 8, 2019 order of the Board of Immigration Appeals (BIA) affirming a November 20, 2017 decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The IJ determined that Chen was not credible based on inconsistencies in his testimony during his removal hearing and omissions in his original applications for asylum and withholding of removal on Form I-589, which asks applicants to provide information about their personal and family backgrounds and details about the harm or mistreatment that they experienced in their home country. We conclude that the IJ misidentified part of Chen's testimony as inconsistent, improperly relied on trivial inconsistencies, and misconstrued as an omission a part of Chen's testimony that comported with his Form I-589 asylum statement. Because we are not confident that the IJ would have made the same adverse credibility determination absent those errors, Chen's petition for review is GRANTED, the BIA's decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.

BACKGROUND

On November 20, 2017, Chen, a native and citizen of China, testified as follows before the IJ in support of his applications for asylum, withholding of removal, and protection under the CAT. Considered an illegal cult, Falun Gong is banned by the Chinese government. Chen began secretly practicing Falun Gong in China in 2009. In September 2010 police officers came to Chen's home, arrested him for practicing Falun Gong, and took him to a police station. At the station the officers locked him in a dark room and then interrogated and beat him. A week later, the officers released Chen after instructing him to report back to the police station every month and to avoid Falun Gong-related activities. When Chen returned to the police station in October 2010 as instructed, however, police officers again detained, interrogated, and beat him. Fearing further persecution in China, Chen fled to the United States, where he continues to practice Falun Gong. Even after Chen fled, however, Chinese police officers continued to search for him at his mother's home.

In support of his applications for asylum, withholding of removal, and CAT relief, Chen submitted, among other documents, a Form I-589 and affidavits from his wife and cousin. Chen and his wife also testified before the IJ at Chen's removal hearing.

After the hearing, the IJ pretermitted Chen's asylum application because it determined that Chen had not demonstrated by clear and convincing evidence that it was timely filed. The IJ also denied Chen's applications for withholding of removal and relief under the CAT because it determined that Chen was not credible. The IJ based its adverse credibility finding on inconsistencies between his Form I-589 and the hearing testimony, and the fact that Chen's testimony contained information that he had omitted from his Form I-589.

After the IJ ordered Chen removed from the United States, Chen appealed to the BIA, which affirmed the IJ's adverse credibility finding and dismissed his appeal.

This petition followed.

DISCUSSION

I. Applicable Law

"Where, as here, the BIA's decision affirms the IJ's adverse credibility finding without rejecting any portion of the IJ's decision, but emphasizing particular aspects of the reasoning, we review both decisions." Xiao Xing Ni v. Gonzales, 494 F.3d 260, 262 (2d Cir. 2007). "We review the agency's findings, including credibility findings, for substantial evidence, treating the agency's findings as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Id. (quotation marks omitted).

Chen applied for asylum, withholding of removal, and relief under the CAT. "To qualify for asylum," Chen was required to "show that he is a 'refugee' — that is, he is 'unable or unwilling to return to [his home country]' " of nationality " 'because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.' " Pinel-Gomez v. Garland, 52 F.4th 523, 528 (2d Cir. 2022) (alterations in original) (quoting 8 U.S.C. §§ 1101(a)(42)(A); 1158(b)(1)(B)(i)). To be eligible for withholding of removal, Chen must satisfy a stricter standard—one that requires "a clear probability of future persecution on account of a protected characteristic." Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (quotation marks omitted). To qualify for CAT protection, Chen must demonstrate that "it is 'more likely than not that he . . . would be tortured if removed to the proposed country of removal,' " though he need not draw a "nexus between the alleged torture and [his] membership in a protected group." Garcia-Aranda v. Garland, 53 F.4th 752, 758 (2d Cir. 2022) (quoting 8 C.F.R. § 1208.16(c)(2)).

"An applicant can generally prove that he is eligible for any of asylum, withholding of removal, or CAT relief based on nothing more than his own testimony, so long as that testimony is credible." Liang v. Garland, 10 F.4th 106, 113 (2d Cir. 2021). Conversely, where, as here, "the same factual predicate underlies a petitioner's claims for asylum, withholding of removal, and protection under the CAT, an adverse credibility determination forecloses all three forms of relief." Hong Fei Gao, 891 F.3d at 76.

"[W]e afford particular deference to the IJ's adverse credibility determination," Singh v. Garland, 6 F.4th 418, 426 (2d Cir. 2021) (quotation marks omitted), which may be based on "any inconsistencies, inaccuracies, or falsehoods, 'without regard to whether [the] inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor,' " id. at 426-27 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Under the REAL ID Act, which applies to Chen's petition, an IJ must "evaluate each inconsistency or omission in light of 'the totality of the circumstances.' " Hong Fei Gao, 891 F.3d at 79 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Thus, an IJ can consider the applicant's demeanor, the inherent plausibility of the account, the internal consistency of the applicant's statements, the consistency between those statements and other evidence in the record, and any inaccuracies or falsehoods in the statements. See Liang, 10 F.4th at 113; see also 8 U.S.C. § 1158(b)(1)(B).

In making an adverse credibility finding, an IJ may also rely on the omission of important information from an applicant's asylum statement in a Form I-589. We have cautioned, however, that "omissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony." Singh, 6 F.4th at 428 (quotation marks omitted). The probative value of a particular omission depends on "whether [the omitted] facts are ones that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances." Hong Fei Gao, 891 F.3d at 79. In part for this reason, "petitioners are not required to list every incident of persecution on their I-589 statement." Liang, 10 F.4th at 114 (quotation marks omitted).

Although an IJ may rely on omissions and inconsistencies in assessing an applicant's credibility, not all omissions and inconsistencies deserve the same weight. "A trivial inconsistency or omission that has no tendency to suggest a petitioner fabricated his or her claim will not support an adverse credibility determination." Hong Fei Gao, 891 F.3d at 77; see Singh, 6 F.4th at 427 (explaining that an adverse credibility finding cannot be based on "an inconsistency so trivial and inconsequential that it has little or no tendency to support a reasonable inference that the petitioner has been untruthful"). As we explained in Singh, "[o]missions are undoubtedly probative of untruthfulness in circumstances where the omission renders what is stated untrue or deceitful, but not necessarily so where the omission constitutes nothing more than non-inclusion of an inessential fact." 6 F.4th at 428. And when an applicant's testimony includes information that does not appear in his asylum statement but that supplements and is consistent with the statement, that information does not qualify as a material omission on which an IJ can rely in making an adverse credibility determination. See Hong Fei Gao, 891 F.3d at 79; Gurung v. Barr, 929 F.3d 56, 61 n.1 (2d Cir. 2019).

As we further explained in Singh, an IJ's adverse credibility determination may sometimes rely on "multiple bases, some of which are erroneous and the remainder of which . . . satisfy the substantial evidence requirement." 6 F.4th at 427. When this happens, "several different dispositions are possible." Id. "Where the remaining grounds . . . are sufficiently probative of untruthfulness," we may "simply affirm the [agency's] ruling based on confidence that [it] would adhere to [its] adverse credibility finding notwithstanding disqualification of some of its asserted bases." Id. "[W]here it is clear that the agency would not adhere to the adverse...