Yan Qing Chen v. Holder ( 2014 )

13-4908
Chen v. Holder
BIA
Vomacka, IJ
A087 736 736
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of December, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 YAN QING CHEN,
14 Petitioner,
15
16 v. 13-4908
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Joshua E. Bardavid, New York, New
25 York.
26
27 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
28 Attorney General; Jennifer
29 Lightbody, Senior Litigation
1 Counsel; Nicole J. Thomas-Dorris,
2 Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Yan Qing Chen, a native and citizen of the
12 People’s Republic of China, seeks review of a December 17,
13 2013, decision of the BIA, affirming the July 2, 2012
14 decision of an Immigration Judge (“IJ”), denying her
15 application for asylum, withholding of removal, and relief
16 under the Convention Against Torture (“CAT”). In re Yan
17 Qing Chen, No. A087 736 736 (B.I.A. Dec. 17, 2013), aff’g
18 No. A087 736 736 (Immig. Ct. N.Y. City July 2, 2012). We
19 assume the parties’ familiarity with the underlying facts
20 and procedural history of the case.
21 Under the circumstances of this case, we have reviewed
22 both the BIA and the IJ’s opinions. See Yun-Zui Guan v.
23 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005)(per curiam). The
24 applicable standards of review are well established. See 8
25 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
21 162, 165-66 (2d Cir. 2008) (per curiam). Chen applied for
2 relief based on past persecution on account of her religious
3 beliefs as well as a fear of future persecution based on her
4 continuing religious practice. However, her brief argues
5 error only in the agency’s adverse credibility
6 determination, not its finding that she failed to carry her
7 burden of proof. Accordingly, we limit our review to the
8 adverse credibility determination.
9 For asylum applications like Chen’s, governed by the
10 REAL ID Act, the agency may, “[c]onsidering the totality of
11 the circumstances,” base a credibility finding on
12 inconsistencies in an applicant’s statements and other
13 record evidence “without regard to whether” they go “to the
14 heart of the applicant’s claim.” 8 U.S.C.
15 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
16 In this case, substantial evidence supports the
17 agency’s adverse credibility determination. Chen’s failure
18 to tell the asylum officer of her 2007 arrest and her
19 inconsistent explanations for that omission are material to
20 her claim of past persecution. The agency reasonably relied
21 on those inconsistencies in making its credibility
22 determination, particularly given that these discrepancies
3
1 go to the heart of Chen’s claim of past persecution. See
2 Zhou Yun Zhang v. I.N.S., 386 F.3d 66, 74-77 (2d Cir. 2004),
3 overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of
4 Justice, 494 F.3d 296 (2d Cir. 2007); cf. Xiu Xia Lin, 534
5 F.3d at 166-67.
6 Chen argues that her explanation for this omission–that
7 she was threatened by the smuggler–was consistent throughout
8 the proceedings. We will not second guess the IJ’s
9 conclusion that the explanations are inconsistent, given
10 that his reading is supported by the record. Majidi v.
11 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). While Chen’s
12 written statement does use the word “threat,” the remainder
13 of that statement describes the threat as the smuggler
14 telling her she would be sent back to China if she raised
15 the 2007 arrest because she could not document it. This
16 explanation differs from her testimony that the smuggler
17 threatened to harm her family if she raised the 2007 arrest.
18 Considering the inconsistency between these explanations,
19 the IJ was not required to credit either of them. Id.20 Contrary to Chen’s position, the agency did not err in
21 relying on the record of the credible fear interview. A
22 credible fear record is sufficiently reliable if it contains
4
1 a “‘verbatim account or transcript’” of the alien’s
2 statements, was “‘designed to elicit the details of an
3 asylum claim,’” and contains no indication that the alien
4 revealed information reluctantly or failed to understand the
5 interpreter’s translations. Ming Zhang v. Holder, 585 F.3d
6 715, 721 (2d Cir. 2009) (quoting Yun-Zui Guan v. Gonzales,
7 432 F.3d 391, 396 (2d Cir. 2005)). Chen’s interview
8 satisfies these requirements. It was memorialized in a
9 typewritten document setting forth the questions asked and
10 the answers given, thus ensuring that it accurately
11 represents her answers to the asylum officer’s questions.
12 The fact that it may not be verbatim is insufficient on its
13 own to find it unreliable. Ming Zhang, 585 F.3d at 725.
14 Moreover, the asylum officer attempted to flesh out Chen’s
15 claim, asking her five separate times about additional
16 encounters with police. Finally, there is no indication
17 that Chen was confused or did not understand the
18 interpreter’s translations, and she does not contend that
19 the record misstates or omits anything she said at the
20 interview.
21 Additional inconsistencies add further support for the
22 adverse credibility determination. At her asylum interview,
5
1 Chen repeatedly said she did not remember how she obtained
2 the pamphlets she distributed, but in her application and
3 testimony, she stated she was participating in an organized
4 church activity with which she was familiar. Moreover, at
5 her interview Chen insisted she did not remember who told
6 her the police were searching for her, but testified that
7 her parents told her about the police coming to their home
8 to find her. These inconsistencies, along with Chen’s
9 initial omission of her 2007 arrest and subsequent
10 inconsistent explanations, provide substantial evidence to
11 support the adverse credibility determination. Xiu Xia Lin,
12 534 F.3d at 163-64.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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