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,

on the 15th 4 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

2
1 162, 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

24

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