BI YING QIU, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent, 391 F. App'x 898

SUMMARY ORDER Petitioner Bi Ying Qiu, a native and citizen of the People’s Republic of China, seeks review of a August 17, 2009, order of the BIA, affirming the September 13, 2007, decision of Immigration Judge (“U”) Javier E. Balasquide, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bi Ying Qiu, No. [ AXXX XXX XXX ] (B.I.A. Aug. 17, 2009), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Sept. 13, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Because the BIA stated, “We adopt and affirm the decision of the Immigration Judge,” we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). The IJ made an adverse credibility determination.

In support of that determination, the IJ relied primarily on discrepancies as to the year in which three events occurred: the government’s banning of the Falun Gong, Qui’s becoming involved with the Falun Gong, and Qui’s first persecution for his Falun Gong activity. Qui testified that these three events occurred in 1997, but also testified that all three occurred in 1999. At times he answered 1999 and immediately corrected himself to say 1997. However, at all times Qui linked the year of these events to the time when he was 17 years old.

Since He testified that he was born in 1982, he was 17 in 1999, and obviously intended to place the three events in the year 1999. As he stated when pressed about the discrepancies as to years, “I only remember that I was 17 years old at that time, that’s what I remember the most, that I was 17....

In terms of which year, I don’t remember.” When pressed on cross-examination, ‘You don’t remember what year you were 17 years old?” he answered, “I didn’t do the calculation.” Incredibly, Qui’s lawyer conducted no redirect examination, which could have readily made the record even clearer that Qui at all times meant to place the key events in the year 1999, 17 years after the year of his birth. Although an IJ is entitled to discredit an applicant’s testimony based on material discrepancies, an IJ is obliged to consider an applicant’s explanation. See Cao He Lin v. U.S.

Dep’t of Justice, 428 F.3d 391, 403 (2d Cir.2005). In this case, the IJ failed to do so. Instead, he simply recounted the three events that Qui placed in both 1997 and 1999 and did not reckon with her explanation that she was sure that all three events occurred in the year when she was 17, i.e., 1999. This flaw in the IJ’s reasoning requires a remand for reconsideration. For the foregoing reasons, the petition for review is GRANTED, and the case is REMANDED for further consideration. .

Because Qiu filed her asylum application before May 11, 2005, the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 do not apply to her asylum application. See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005).