530 F. App'x 87
2d Cir.2013Background
- Petitioner Qiuyun Zheng, a Chinese national, sought asylum, withholding of removal, and CAT relief; IJ denied relief and BIA affirmed (IJ Mary M. Cheng; BIA decision Mar. 15, 2012).
- The IJ’s adverse credibility finding relied on testimony inconsistencies and differences between Zheng’s testimony and documentary evidence.
- Two specific inconsistencies noted by the IJ involved one- and two-day discrepancies about dates in October 2008 (date of fiancée’s abortion and date she returned from hospital); Zheng promptly corrected these at the hearing.
- The hearing took place more than 18 months after the events; Zheng explained the October 18 dates were correct when confronted.
- The Second Circuit reviewed the IJ decision as supplemented by the BIA and applied the REAL ID Act standard for credibility determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ’s credibility finding was supported given minor date inconsistencies | Zheng argued the one- and two-day date errors were trivial, promptly corrected, and insufficient to undermine credibility | Government argued the inconsistencies (including documentary mismatches) supported an adverse credibility finding under the REAL ID Act | Court held the one- and two-day inconsistencies were too trivial to support the adverse credibility finding and warranted remand |
| Whether other inconsistencies justified denial | Zheng contended other inconsistencies were marginal and insufficient | Government relied on additional inconsistencies and documentary differences to support denial | Court found other inconsistencies at best marginal and ordered reconsideration |
| Standard of review for credibility under REAL ID Act | Zheng accepted deference but argued no reasonable fact-finder could sustain finding here | Government urged deference to IJ’s credibility determination | Court applied REAL ID Act/ Second Circuit precedent, concluding deference inappropriate on these facts and remanded |
| Whether same IJ should reconsider case | Zheng argued for a new IJ to avoid appearance of partiality | Government did not oppose reconsideration before same IJ implicitly | Court directed rehearing before a different IJ to avoid appearance of partiality |
Key Cases Cited
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (procedure for reviewing BIA decision supplemented by IJ)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (standards of review for immigration decisions)
- Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) (REAL ID Act credibility standards; deference to IJ unless no reasonable fact-finder could make finding)