570 F. App'x 96
2d Cir.2014Background
- Wenxing Su, a PRC citizen, petitions for review of a BIA decision affirming an IJ's pretermitted asylum denial and denials of withholding and CAT relief.
- The asylum claim was deemed untimely under 8 U.S.C. § 1158(a)(2)(B) and was pretermitted; the court lacks jurisdiction over the factual timeliness determination.
- The IJ found adverse credibility based on purported inconsistencies and speculation about Chinese documentary practices.
- The BIA affirmed the IJ's adverse credibility finding, which formed the basis for denying withholding and CAT relief.
- The panel remands to have a different IJ reconsider Su’s credibility and thus reconsider the withholding and CAT claims.
- Pending motion for stay of removal is denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Asylum timeliness review and jurisdiction | Su contends timeliness determination affects reviewable legal questions. | Agency findings on timeliness are factual and unreviewable; court lacks jurisdiction over those facts. | Timeliness is unreviewable; remand not on asylum merits. |
| Legal effect of IJ credibility findings on withholding/CAT | Adverse credibility under totality of the circumstances supports withholding/CAT relief. | Credibility findings were supported or at least not clearly erroneous. | Credibility ruling insufficiently supported; remand for reconsideration. |
| Proper basis for adverse credibility in this record | Discrepancies were minor and documentary practices in China were not properly relied on. | Discrepancies and demeanor support adverse credibility. | Findings were based on impermissible speculation; not substantial evidence. |
| Remand and new fact-finder | Credibility should be reevaluated by a new IJ without bias. | Original IJ credibility could be revisited. | Remand to a new IJ for reconsideration of credibility. |
Key Cases Cited
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (establishes standard for reviewing BIA determinations)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (totality of the circumstances in credibility determinations)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (limits on challenging IJ fact-finding as legal questions)
- Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391 (2d Cir. 2005) (prohibits basing credibility on generic documentary practices without evidence)
- Wensheng Yan v. Mukasey, 509 F.3d 63 (2d Cir. 2007) (requires substantial evidence for unfavorable credibility findings)
- Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99 (2d Cir. 2006) (demeanor-based credibility assessments must be tethered to specific instances)
- Dong Zhong Zheng v. Mukasey, 552 F.3d 277 (2d Cir. 2009) (guides review of credibility and procedural remand considerations)
- Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) (adverse credibility findings require plausible grounds under totality of circumstances)