Zhen Yin Yan v. Holder , 486 F. App'x 924 ( 2012 )

11-3137-ag
Yan v. Holder
BIA
Hom, IJ
A094 922 803
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 5th day of July, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RALPH K. WINTER,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 ZHEN YIN YAN,
14 Petitioner,
15
16 v. 11-3137-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Jeffery R.
28 Leist, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Zhen Yin Yan, a native and citizen of the People’s
6 Republic of China, seeks review of a July 5, 2011, decision
7 of the BIA affirming the March 3, 2010, decision of
8 Immigration Judge (“IJ”) Sandy K. Hom, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Zhen
11 Yin Yan, No. A094 922 803 (B.I.A. July 5, 2011), aff’g No.
12 A094 922 803 (Immig. Ct. N.Y. City Mar. 3, 2010). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
20 562 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications such as Yan’s, governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, the agency may, considering the
2
1 totality of the circumstances, base a credibility finding on
2 inconsistencies or omissions in the applicant’s statements,
3 without regard to whether the inconsistencies or omissions
4 go “to the heart of the applicant’s claim.” See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
6 167 (2d Cir. 2008). In this case, substantial evidence
7 supports the agency’s adverse credibility determination,
8 based on material inconsistencies between sworn statements
9 during Yan’s credible fear interview and his asylum
10 application and his testimony before an IJ.
11 During his hearing, Yan testified that he knowingly
12 made a false asylum claim under oath before an asylum
13 officer during his credible fear interview. He argues that
14 these false statements are inadequate to form the basis of
15 the agency’s adverse credibility determination because he
16 did not understand his oath, he was unaccompanied by
17 counsel, and he was reluctant to tell the truth due to the
18 threats and coercion from his smuggler.1 However, the BIA
1
Yan also argues that the IJ’s decision was clearly
erroneous because it attributed to him a self-serving
statement about mistreatment by the United States
government that he did not make. Yan is correct that the
IJ misattributed this statement; however, this error is
harmless because nothing in the record suggests that the
BIA gave this statement dispositive weight in deciding
Yan’s appeal. See Ajdin v. Bureau of Citizenship and
3
1 reasonably concluded that Yan’s false statements during his
2 credible fear interview were a sufficiently reliable basis
3 to support the IJ’s adverse credibility determination
4 because he was provided a Mandarin interpreter, advised of
5 the importance of telling the truth, and he waived his
6 opportunity to have an attorney present. See Ming Zhang v.
7 Holder, 585 F.3d 715, 725 (2d Cir. 2009) (“Where the record
8 of a credible fear interview displays the hallmarks of
9 reliability, it appropriately can be considered in assessing
10 an alien’s credibility.”). Moreover, Yan’s credible fear
11 interview was memorialized in a written, verbatim
12 transcript, and Yan’s responses demonstrated his
13 understanding of the questions presented during the
14 interview. Id.; see also Ramsameachire v. Ashcroft, 357
15 F.3d 169, 180 (2d Cir. 2004).
16 Moreover, the adverse credibility finding was further
17 supported by the agency’s finding that Yan failed to
18 corroborate his claim because he did not include affidavits
19 or statements from his sister or other individuals in the
20 United States who would be knowledgeable about his claim.
21 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
Immigration Servs., 437 F.3d 261, 266 (2d Cir. 2006).
4
1 As the only evidence of a threat to Yan’s life or freedom
2 depended upon his credibility, the adverse credibility
3 determination in this case necessarily precludes success on
4 his claims for asylum, withholding of removal, and CAT
5 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
6 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
7 523 (2d Cir. 2005).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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