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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 15 th** **day of December, two thousand fourteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **JOSÉ A. CABRANES,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **YAN QING CHEN,** 13 Petitioner**,** 14 15 **v. 13-4908** 16 **NAC** 17 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 **FOR PETITIONER: Joshua E. Bardavid, New York, New** 24 **York.** 25 26 **FOR RESPONDENT: Joyce R. Branda, Acting Assistant** 27 **Attorney General; Jennifer** 28 **Lightbody, Senior Litigation** 29**Counsel; Nicole J. Thomas-Dorris,** 1 **Trial Attorney, Office of** 2 **Immigration Litigation, United** 3 **States Department of Justice,** 4 **Washington D.C.** 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Yan Qing Chen, a native and citizen of the 11 People’s Republic of China, seeks review of a December 17, 12 2013, decision of the BIA, affirming the July 2, 2012 13 decision of an Immigration Judge (“IJ”), denying her 14 application for asylum, withholding of removal, and relief 15 under the Convention Against Torture (“CAT”). In re Yan 16 Qing Chen, No. A087 736 736 (B.I.A. Dec. 17, 2013), aff’g 17 No. A087 736 736 (Immig. Ct. N.Y. City July 2, 2012). We 18 assume the parties’ familiarity with the underlying facts 19 and procedural history of the case. 20 Under the circumstances of this case, we have reviewed 21 both the BIA and the IJ’s opinions. See Yun-Zui Guan v. 22 Gonzales , 432 F.3d 391, 394 (2d Cir. 2005)(per curiam). The 23 applicable standards of review are well established. See8 24 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 25

2162, 165-66 (2d Cir. 2008) (per curiam). Chen applied for 1 relief based on past persecution on account of her religious 2 beliefs as well as a fear of future persecution based on her 3 continuing religious practice. However, her brief argues 4 error only in the agency’s adverse credibility 5 determination, not its finding that she failed to carry her 6 burden of proof. Accordingly, we limit our review to the 7 adverse credibility determination. 8 For asylum applications like Chen’s, governed by the 9 REAL ID Act, the agency may, “[c]onsidering the totality of 10 the circumstances,” base a credibility finding on 11 inconsistencies in an applicant’s statements and other 12 record evidence “without regard to whether” they go “to the 13 heart of the applicant’s claim.” 8 U.S.C. 14 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. 15 In this case, substantial evidence supports the 16 agency’s adverse credibility determination. Chen’s failure 17 to tell the asylum officer of her 2007 arrest and her 18 inconsistent explanations for that omission are material to 19 her claim of past persecution. The agency reasonably relied 20 on those inconsistencies in making its credibility 21 determination, particularly given that these discrepancies 22

3go to the heart of Chen’s claim of past persecution. See 1 Zhou Yun Zhang v. I.N.S. , 386 F.3d 66, 74-77 (2d Cir. 2004), 2 overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of 3 Justice , 494 F.3d 296 (2d Cir. 2007); cf. Xiu Xia Lin, 534 4 F.3d at 166-67. 5 Chen argues that her explanation for this omission–that 6 she was threatened by the smuggler–was consistent throughout 7 the proceedings. We will not second guess the IJ’s 8 conclusion that the explanations are inconsistent, given 9 that his reading is supported by the record.Majidi v. 10 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). While Chen’s 11 written statement does use the word “threat,” the remainder 12 of that statement describes the threat as the smuggler 13 telling her she would be sent back to China if she raised 14 the 2007 arrest because she could not document it. This 15 explanation differs from her testimony that the smuggler 16 threatened to harm her family if she raised the 2007 arrest. 17 Considering the inconsistency between these explanations, 18 the IJ was not required to credit either of them. Id. 19 Contrary to Chen’s position, the agency did not err in 20 relying on the record of the credible fear interview. A 21 credible fear record is sufficiently reliable if it contains 22

4a “‘verbatim account or transcript’” of the alien’s 1 statements, was “‘designed to elicit the details of an 2 asylum claim,’” and contains no indication that the alien 3 revealed information reluctantly or failed to understand the 4 interpreter’s translations. Ming Zhang v. Holder, 585 F.3d 5 715, 721 (2d Cir. 2009) (quoting Yun-Zui Guan v. Gonzales , 6 432 F.3d 391, 396 (2d Cir. 2005)). Chen’s interview 7 satisfies these requirements. It was memorialized in a 8 typewritten document setting forth the questions asked and 9 the answers given, thus ensuring that it accurately 10 represents her answers to the asylum officer’s questions. 11 The fact that it may not be verbatim is insufficient on its 12 own to find it unreliable. Ming Zhang, 585 F.3d at 725. 13 Moreover, the asylum officer attempted to flesh out Chen’s 14 claim, asking her five separate times about additional 15 encounters with police. Finally, there is no indication 16 that Chen was confused or did not understand the 17 interpreter’s translations, and she does not contend that 18 the record misstates or omits anything she said at the 19 interview. 20 Additional inconsistencies add further support for the 21 adverse credibility determination. At her asylum interview, 22

5Chen repeatedly said she did not remember how she obtained 1 the pamphlets she distributed, but in her application and 2 testimony, she stated she was participating in an organized 3 church activity with which she was familiar. Moreover, at 4 her interview Chen insisted she did not remember who told 5 her the police were searching for her, but testified that 6 her parents told her about the police coming to their home 7 to find her. These inconsistencies, along with Chen’s 8 initial omission of her 2007 arrest and subsequent 9 inconsistent explanations, provide substantial evidence to 10 support the adverse credibility determination. Xiu Xia Lin, 11 534 F.3d at 163-64. 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 24

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