14-4218 Wan v. Lynch BIA Morace, IJ A205 043 435 

### 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 TO 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 for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **24 th**  **day of March, two thousand sixteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **PETER W. HALL,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **JING WAN,** 13 Petitioner **,** 14 15 **v. 14-4218** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Gary J. Yerman, New York, New York. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; John S. 27 Hogan, Assistant Director; David H. 28 Wetmore, Trial Attorney; Lisa M. 292 Southerland, Law Clerk, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D.C. 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review is 7

DENIED. 8 Petitioner Jing Wan, a native and citizen of the People’s 9 Republic of China, seeks review of an October 16, 2014, decision 10 of the BIA affirming an April 22, 2013, decision of an 11 Immigration Judge (“IJ”) denying Wan’s application for asylum, 12 withholding of removal, and relief under the Convention Against 13 Torture (“CAT”). In re Jing Wan, No. A 205 043 435 (B.I.A. Oct. 14 16, 2014), aff’g No. A 205 043 435 (Immig. Ct. N.Y. City Apr. 15 22, 2013). We assume the parties’ familiarity with the 16 underlying facts and procedural history in this case. 17 Under the circumstances of this case, we have reviewed both 18 the IJ’s and the BIA’s decisions, “for the sake of 19 completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 20 524, 528 (2d Cir. 2006). The applicable standards of review 213 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin 1 Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 2 For asylum applications, like Wan’s, governed by the REAL 3 ID Act, the agency may, “[c]onsidering the totality of the 4 circumstances,” base a credibility finding on inconsistencies 5 between the applicant’s statements and other evidence, “without 6 regard to whether” they go “to the heart of the applicant’s 7 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey , 8 534 F.3d 162, 163-64 (2d Cir. 2008). “We defer . . . to an IJ’s 9 credibility determination unless, from the totality of the 10 circumstances, it is plain that no reasonable fact-finder could 11 make such an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d 12 at 167. 13 The agency did not violate Wan’s due process rights by 14 relying on the notes from her asylum interview. Evidence may 15 be admitted in immigration proceedings “if it is probative and 16 its use is fundamentally fair.” Montero v. INS , 124 F.3d 381, 17 385-86 (2d Cir. 1997). “Fairness in this context ‘is closely 18 related to the reliability and trustworthiness of the 19 evidence.’” Id. at 386 (quoting Felzcerek v. INS , 75 F.3d 112, 20 115 (2d Cir. 1996)). Notes from an asylum interview do not 214 warrant the “special scrutiny” given to records of airport or 1 credible fear interviews. Diallo v. Gonzales , 445 F.3d 624, 2 632 (2d Cir. 2006). To rely on notes from an asylum interview, 3 the IJ need only determine that the record “contain[s] a 4 meaningful, clear, and reliable summary of the statements made 5 by the applicant at the interview.” In re S-S- , 21 I. & N. Dec. 6 121, 124 (B.I.A. 1995); see also Diallo , 445 F.3d at 632-33 7 (relying on the “useful guidance” in Matter of S-S- ). As the 8 IJ found, a monitor oversaw the translations, the notes were 9 detailed, and there was no evidence of difficulty communicating 10 with the interpreter. Given these considerations, the IJ did 11 not violate Wan’s due process rights in concluding that the 12 notes bore sufficient indicia of reliability to be entitled to 13 considerable weight. See Diallo , 445 F.3d at 632-33. 14 Further, the Government was not required to introduce the notes 15 in advance of the hearing, as they were impeachment evidence. 16
See Imm. Ct. Pract. Man. Ch. 3.1(b)(ii)(A). 17

As the agency did not err in relying on the interview notes, 18 substantial evidence supports the adverse credibility 19 determination, which was based largely on inconsistencies 20 between the asylum interview and Wan’s testimony. Wan’s asylum 215 claim was that she was forced to have an abortion after she 1 became pregnant by a U.S. citizen, whom she met in China while 2 she was working as a tour guide. Wan testified that she met 3 Joseph Pereira while she was working as a tour guide, but at 4 the asylum interview she claimed to have met him online before 5 he came to China and that he came to China in order to meet her 6 in person. She explained this inconsistency by denying that 7 she had said this in the asylum interview and by stating that 8 she did not recall the asylum interview clearly. These 9 explanations do not compel a reasonable fact-finder to credit 10 her testimony, given the degree of specificity of the asylum 11 interview notes with respect to their meeting. See Majidi v. 12 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). 13 Further, Wan testified inconsistently with her asylum 14 interview regarding her relationship with Pereira after she 15 discovered that she was pregnant. While she told the asylum 16 officer that Pereira was very happy when he learned of her 17 pregnancy, that they wanted to get married, and that they 18 continued to communicate over the Internet after this 19 conversation, she testified that his response to her pregnancy 20 was simply to tell her to take care and that they ceased 216 communicating immediately afterward. Her explanation for this 1 inconsistency was that she was only asked at the asylum 2 interview whether she could have communicated with him, rather 3 than whether she actually did. Once again, this explanation is 4 unconvincing. See id. 5 Finally, the IJ did not err in finding that Wan’s lack of 6 reliable corroboration further undermined her credibility. 7 See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 8 The IJ reasonably found that the letter from Wan’s parents was 9 inadequate to corroborate her testimony, because it merely 10 mentioned the date of the abortion with no further details. Xiu 11 Xia Lin , 534 F.3d at 166 n.3; Y.C. v. Holder , 741 F.3d 324, 334 12 (2d Cir. 2013). While the BIA mischaracterized the IJ’s 13 decision as finding that Wan could have introduced medical 14 documentation, this error is harmless: because the lack of 15 corroboration was used to bolster the credibility finding 16 rather than as an independent ground for denying relief, the 17 IJ was not required to specify evidence that Wan could have 18 introduced. Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 19 315, 341 (2d Cir. 2006). 207 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our rev iew, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DISMISSED as moot. Any pending request for oral argument 5 in this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 7 34.1(b). 8
FOR THE COURT: 9 Catherine O = Hagan Wolfe, Clerk 10