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United States Court of Appeals,Second Circuit.

Gui Yin LIU, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.

Docket No. 03-4803-AG.

Decided: January 30, 2007

Before OAKES, CALABRESI and STRAUB, Circuit Judges. Gui Yin Liu, Petitioner, pro se. Michael J. Garcia, David N. Kelley, United States Attorneys for the Southern District of New York, James L. Cott, Meredith E. Kotler, Benjamin H. Torrance, Assistant United States Attorneys, New York, NY, for Respondent. C. Mario Russell, Mark R. Von Sternberg, Catholic Charities Community Services, Maame Agyeiwaah, Katie Brandes, Molly Thomas-Jensen, Student Attorneys, Catholic Charities Community Services, New York, NY, Amicus Curiae in Support of Petitioner.

 Petitioner Gui Yin Liu, a native and citizen of the People's Republic of China, seeks review of an April 2, 2003 order of the BIA affirming the May 2, 2001 decision of Immigration Judge (“IJ”) Philip L. Morace denying petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).   In re Gui Yin Liu, No. A 78 208 279 (B.I.A. Apr. 2, 2003), aff'g No. A 78 208 279 (Immig.   Ct. N.Y. City May 2, 2001).   Liu claims that he fled China in 1999 after government officials forced his wife to undergo a forcible sterilization procedure.   The IJ found Liu's testimony regarding the time and manner of his arrival in the United States vague, non-responsive, and implausible, and concluded that Liu's asylum application was barred as untimely because Liu had failed to demonstrate that the application was filed within one year of his arrival in the United States, as required by Title 8, Section 1158(a)(2)(B) of the United States Code. The IJ also denied Liu's claims for withholding of removal and CAT relief, finding Liu's testimony regarding the forced sterilization similarly vague, nonresponsive, and unpersuasive.1


 As a preliminary matter, we must determine whether we have jurisdiction to consider Liu's challenge to the IJ's finding of untimeliness.   Title 8, Section 1158(a)(3) of the United States Code provides that we have no jurisdiction to review the agency's determinations under 8 U.S.C. § 1 158(a)(2)(B).  Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and “questions of law.”  8 U.S.C. § 1252(a)(2)(D).  “Questions of law” encompass the same issues traditionally reviewed by courts in habeas petitions challenging executive detentions.  Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 327 (2d Cir.2006).   Because the scope of habeas review traditionally encompassed the application of law to fact, including what evidence may satisfy a party's burden of proof, see Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003), we find jurisdiction to review whether any rational trier of fact would be compelled to conclude that Liu proved by clear and convincing evidence that he timely filed his asylum application.   See Francis v. Gonzales, 442 F.3d 131, 138-39 (2d Cir.2006);  see also Xiao Ji Chen, at 327.   Moreover, while we lack jurisdiction to consider “mere disagreement[s] with the IJ's factual findings and exercise of discretion,” Xiao Ji Chen, at 331, a reviewable issue of law may arise in the case of “fact-finding which is flawed by an error of law, such as might arise where the IJ states that his decision was based on petitioner's failure to testify to some pertinent fact when the record of the hearing reveals unambiguously that the petitioner did testify to that fact,” id. at 331 (citing Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir.2004)).

 Here, the IJ unambiguously mischaracterized a central element of the record:  Liu's record with the Chinese police.   The IJ stated that the document did not “indicat[e] for certain that the respondent was indeed there [in China] during the aforementioned time period.   It just indicates that there's no record of arrest for him on that day.”   In fact the document expressly stated that Liu “had no record of committing offenses against the criminal law up to the date when he left China on June 28, 1999, during his residence in China” (emphasis added).   The IJ's unambiguous mischaracterization of the record raises a question of law.   See id. (noting that the agency's reliance on an inaccurate account of the record raises a question of law).2

 In finding Liu's claims as to when he entered the United States incredible, the IJ relied in part on Liu's demeanor, which he found “vague,” “non-responsive,” and “characterized by long delays.”   Petitioner disputes this characterization of his testimony.   We lack jurisdiction to review the IJ's finding in this respect.   However, because the IJ relied on an inaccurate representation of the record with respect to Liu's police record, the agency's “analysis cannot be regarded as based on the evidence of record,” and we are deprived of the ability to review adequately the agency's denial of Liu's asylum claim.   See Tian-Yong Chen, 359 F.3d at 127.   We are unable to say with confidence that the IJ's findings would remain the same if Liu's police record were properly characterized.   See Xiao Ji Chen, at 332.

 However, we need not remand Liu's asylum claim if to do so would be futile.   See Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 107 (2d Cir.2006).   We must therefore determine whether the IJ's adverse credibility finding with respect to Liu's withholding of removal and CAT claims is sufficient to establish that Liu's asylum claims-which are predicated on the same facts-would necessarily fail on remand, even if found to be timely.

 This Court reviews the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”  8 U.S.C. § 1252(b)(4)(B);  see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004).   However, we will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed.  Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir.2005).

 The IJ's adverse credibility finding rests in large part on the finding that Liu's testimony lacked detail.   Where an applicant gives “spare” testimony, the IJ may “fairly wonder whether the testimony is fabricated,” and “may wish to probe for incidental details, seeking to draw out inconsistencies that would support a finding of lack of credibility.”  Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir.2003).   Without so probing, however, the fact-finder may fail to create a record that can support an adverse credibility finding.   See Jin Chen v. U.S. Dep't of Justice, 426 F.3d 104, 114 (2d Cir.2005).   In this case, we find significant flaws in the IJ's finding that Liu's testimony was incredible for lack of detail.

Here, Liu testified that he was not present during his wife's sterilization and that she did not tell him details about the procedure.   The IJ recognized this, but nevertheless found Liu's testimony devoid of sufficient detail.   However, the IJ failed to point to any details absent in Liu's testimony that were necessary to establish his claim.   The IJ's opinion cited one particular lacuna in Liu's testimony:  Liu's failure to explain the details of the alleged sterilization procedure.   But such “details [do not] affect [ ] whether the sterilization entitles [Liu] to refugee status,” Jin Shui Qiu, 329 F.3d at 152 (quotation marks omitted), and there is nothing in the record to indicate that Liu should have been expected to know the details of the procedure.

 The IJ's finding that Liu's testimony was nonresponsive is to some extent borne out by the record, although Liu's testimony regarding the critical element of his claim-the sterilization-does not appear from the record to have been particularly evasive or non-responsive.   The IJ's finding in this regard is entitled to deference.   See Zhou Yun Zhang, 386 F.3d at 73;  Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2006).   However, given the flaws in the IJ's finding that Liu's testimony was insufficiently detailed, we cannot predict with confidence that the IJ would reach the same decision on Liu's credibility if the case were remanded.

We must therefore vacate and remand for further proceedings with respect to Liu's withholding and CAT claims.   We must also vacate the agency's finding that Liu was ineligible for asylum, and remand for further proceedings with respect to the timeliness of his application, and, if his application is found to be timely, with respect to whether he has a well-founded fear of persecution such as would ultimately entitle him to asylum.3


For the foregoing reasons, the petition for review is Granted, the BIA's order is Vacated, and we Remand for further proceedings consistent with this Order.   Having completed our review, the stay of removal that the Court previously granted in this petition is Vacated.   Any pending request for oral argument in this petition is Denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).


1.   Where, as here, the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ's decision as the final agency determination.   See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005).

2.   The IJ also stated that the record would be “more probative” if it was “[f]or instance ․ a record to show that he was in the police department on a particular day, or had a receipt in China for a particular reason, or a medical record in China on that date.”   This Court has noted that demands for contemporaneous documentation must be calibrated to the circumstances of the petitioner's departure.  Zu Guan Li v. INS, 453 F.3d 129, 140-41 (2d Cir.2006).   The IJ gave no explanation of why it might be reasonable to expect Liu to have obtained any of the above documents. However, the proper weight to be given to Liu's police record is a question for the agency on remand.

3.   Because Liu failed to argue before either this Court or the BIA his claims for relief based on the illegal nature of his departure from China, we consider that basis for relief abandoned.   See 8 U.S.C. § 1252(d)(1);  Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005).


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