16-2262-ag, 16-2493-ag Gao v. Sessions, Shao v. Sessions 16‐2262‐ag, 16‐2493‐ag Gao v. Sessions, Shao v. Sessions UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2017 (Argued: December 11, 2017 Decided: May 25, 2018) Docket Nos. 16‐2262‐ag, 16‐2493‐ag HONG FEI GAO, AKA Xue Liang Zhang, Petitioner, v. JEFFERSON B. SESSIONS III, United States Attorney General, Respondent.* HAO SHAO, Petitioner, v. JEFFERSON B. SESSIONS III, United States Attorney General, Respondent.* * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson B. Sessions III is substituted for former Attorney General Loretta E. Lynch as respondent. ON PETITIONS FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS Before: WINTER and CHIN, Circuit Judges, and KORMAN, Judge.* Petitions for review heard in tandem from decisions of the Board of Immigration Appeals affirming the decisions of Immigration Judges denying petitioners asylum and related relief on adverse credibility grounds. During removal proceedings, petitioners testified to certain details about their experiences that they had not included in their initial applications and supporting documents. The Immigration Judges relied substantially on these omissions in finding petitioners not credible. PETITIONS GRANTED. MONA LIZA FABULAR LAO, New York, New York, for Petitioner Gao. JOSHUA E. BARDAVID, Law Office of Joshua E. Bardavid, New York, New York, for Petitioner Shao. BRETT F. KINNEY and JESSE LLOYD BUSEN, Trial Attorneys, Jeffery R. Leist, Senior Litigation * Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation. ‐ 2 ‐ Counsel, Holly M. Smith, Senior Litigation Counsel, Laura M. Cover, Law Clerk, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. CHIN, Circuit Judge: These petitions for review heard in tandem challenge two decisions of the Board of Immigration Appeals (the ʺBIAʺ), affirming decisions by two Immigration Judges (ʺIJsʺ), denying asylum, withholding of removal, and protection under the Convention Against Torture (ʺCATʺ) to two petitioners seeking relief from religious persecution in China on adverse credibility grounds. During removal proceedings, petitioners testified regarding the medical attention they received for injuries they sustained from police beatings. The IJs and the BIA relied substantially on the omission of that information from petitionersʹ initial applications and supporting documents to determine that petitioners lacked credibility. On appeal, petitioners principally challenge the agencyʹs adverse credibility determinations. In light of the totality of the circumstances and in the context of the record as a whole, in each case we conclude that the IJ and BIA erred in substantially relying on certain omissions in the record. Accordingly, ‐ 3 ‐ we grant the petitions, vacate the decisions of the BIA, and remand the cases to the BIA for further proceedings consistent with this opinion. BACKGROUND We summarize the facts and procedural history of each case separately, as follows: I. Hong Fei Gao Around April 2010, Gao, a native and citizen of China, entered the United States without inspection. In September 2010, Gao applied for asylum, withholding of removal, and protection ...
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