QIAN WU XIAO AKA v. WHITAKER (2018)

SUMMARY ORDER

Petitioner Qian Wu Xiao, a native and citizen of the People's Republic of China, seeks review of an August 18, 2016, decision of the BIA affirming an April 7, 2015, decision of an Immigration Judge (“IJ”) denying Xiao's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Qian Wu Xiao, No. A XXX XX9 688 (B.I.A. Aug. 18, 2016), aff'g No. A XXX XX9 688 (Immig. Ct. N.Y. City Apr. 7, 2015). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Briefly, the claim of persecution is based on the alleged conduct of the police, including beating Xiao while in detention for her participation in an underground church in China.

Under the circumstances of this case, we have reviewed both the IJ's and BIA's decisions “for the sake of completeness.” Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review an adverse credibility determination for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

The agency may, “[c]onsidering the totality of the circumstances,” base an adverse credibility ruling on:

[T]he consistency between the applicant's or witness's written and oral statements ․ the consistency of such statements with other evidence of record ․ and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64, 166-67 & n.3. Since the agency's decision in this case, we have clarified the standards for the agency's reliance on omissions. “Although IJs may rely on non-material omissions and inconsistencies, not all omissions and inconsistencies will deserve the same weight.” Hong Fei Gao v. Sessions, 891 F.3d 67, 77 (2d Cir. 2018). Instead, the agency must “distinguish between (1) omissions that arise merely because an applicant's oral testimony is more detailed than his or her written application, and (2) omissions that tend to show that an applicant has fabricated his or her claim.” Id. at 82.

In this case, the agency relied on omissions regarding Xiao's medical treatment and police visit and calls. When asked on cross examination if she received medical treatment, Xiao testified that she went to a local clinic with her father the day she was released from detention for an exam and an x-ray. She also testified that police officers came to her house a week after her release and then called her house repeatedly demanding that she report to the police station. These facts were not included in Xiao's application, affidavit, or direct testimony, or in her father's letter. Xiao explained that she forgot to tell her lawyer about the medical treatment and police visit and calls and did not know why her father failed to mention them.

Because the omissions in this case are very similar to those at issue in Hong Fei Gao, we remand for the agency to reconsider the adverse credibility determination in the first instance. See 891 F.3d at 79-81. On remand, the agency should consider (1) whether Xiao's testimony regarding her medical treatment and police contact supplemented, or contradicted, the information in her application and affidavit, (2) whether Xiao's father's omissions created any inconsistencies with Xiao's testimony, and (3) the seriousness of the omissions, taking into account the significance of the events Xiao described, whether her testimony about these events was brief or detailed, and whether it arose in response to specific questions from the IJ or on cross examination. Hong Fei Gao, 891 F.3d at 79-82.

In sum, under the framework articulated in Hong Fei Gao, Xiao's and her father's omissions do not appear to provide substantial evidence for the adverse credibility ruling. Thus, we remand for the agency to reconsider Xiao's claim.

For the foregoing reasons, the 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 order. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. 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 34.1(b).