09-1885-ag
Dong v. Holder
BIA
Lamb, IJ
A095 710 461
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 28 th day of June, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 ______________________________________
13
14 XIAO YUN DONG,
15 Petitioner,
16
17 v. 09-1885-ag
18 NAC
19 ERIC H. HOLDER, JR.,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Theodore N. Cox, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Shelley R. Goad, Senior
28 Litigation Counsel; Tim Ramnitz,
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, 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 GRANTED.
5 Xiao Yun Dong, a native and citizen of the People’s
6 Republic of China, seeks review of an April 8, 2009, order
7 of the BIA affirming the February 27, 2008, decision of
8 Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied
9 Dong’s application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Xiao Yun Dong No. A095 710 461 (BIA April 8, 2009), aff’g
12 No. A095 710 461 (Immig. Ct. N.Y. City Feb. 27, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ 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); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009).
21 I. The IJ’s Adverse Credibility Determination
22 Substantial evidence supports the IJ’s determination
2
1 that Dong’s testimony was not credible. The IJ relied on
2 inconsistencies between Dong’s hearing testimony and
3 credible fear interview statements; as between the two
4 accounts, the IJ reasonably credited Dong’s statements from
5 her credible fear interview. See Ramsameachire v. Ashcroft,
6 357 F.3d 169, 179 (2d Cir. 2004); Zhang v. Holder, 585 F.3d
7 715, 724 (2d Cir. Oct. 30, 2009). The record of the
8 credible fear interview bears sufficient indicia of
9 reliability: (1) it appears to be a transcript of Dong’s
10 interview; (2) the questions posed were designed to elicit
11 details of Dong’s asylum claim; (3) Dong’s argument that she
12 was nervous because she had been arrested previously in
13 China is insufficient to undermine the credible fear
14 interview’s reliability; and (4) although Dong argues that
15 she did not understand the questions, she specifically
16 requested a change in interpreters from Mandarin to Foo Chow
17 (and so acknowledged her merits hearing). See Ramsameachire,
18 357 F.3d at 179; Zhang, 585 F.3d at 725. We are not
19 compelled to find error in the IJ’s refusal to credit the
20 explanations Dong offered for the inconsistencies between
21 her testimony and her credible fear interview. See Majidi
22 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
3
1 II. The Persecutor Bar
2 The agency properly determined--based on Dong’s
3 credible fear interview statement--that Dong assisted in the
4 persecution of others on account of a protected ground, and
5 was therefore statutorily ineligible for asylum and
6 withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(i),
7 1231(b)(3)(B)(i). Dong testified that she did not regularly
8 guard women, that she did not know that the women underwent
9 forced abortions until “later,” and that she performed a
10 “redemptive act” by helping a woman to escape. See Weng v.
11 Holder, 562 F.3d 510 (2d Cir. April 14, 2009); Yan Yan Lin
12 v. Holder, 584 F.3d 75 (2d Cir. Oct. 14, 2009).
13 However, the IJ found Dong’s testimony not credible.
14 Instead, the IJ credited Dong’s statements at her credible
15 fear interview that she guarded approximately ten women over
16 a period of three months, knew the women were scheduled for
17 forced abortions, and did not help the woman to escape. See
18 Xu Shen Gao v. U.S. Att’y Gen’l, 500 F.3d 93, 103 (2d Cir.
19 2007) (stating that the persecutor bar “requires some level
20 of culpable knowledge that the consequences of one’s actions
21 would assist in acts of persecution”). Dong’s actions are
22 therefore analogous to those considered in Zhang Jian Xie v.
4
1 INS, 434 F.3d 136, 143 (2d Cir. 2006) (“assistance in
2 persecution” is conduct that is “active and ha[s] direct
3 consequences for the victims.”); Weng, 562 F.3d at 515
4 (“[t]o be sure, guarding patients awaiting forced abortions
5 comes closer to active assistance than does post-operative
6 monitoring of vital signs.”). Moreover, nothing in the
7 record suggests that Dong was not free to voluntarily leave
8 her job at any time. See Xie, 434 F.3d at 143.
9 Accordingly, the agency properly found that Dong was
10 statutorily barred from asylum and withholding of removal
11 based on her assistance in the persecution of others. See
12 8 U.S.C. §§ 1158(b)(2)(A)(i); 1231(b)(3)(B)(i).
13 III. CAT Relief
14 Deferral of removal under the CAT is available to those
15 who would qualify for asylum and withholding of removal but
16 for a ground of “mandatory denial” such as the persecutor
17 bar. See 8 C.F.R. § 1208.17. Because the BIA failed to
18 consider Dong’s CAT claim, and because it is unclear whether
19 the agency believed Dong to be a Catholic, we remand so that
20 the agency may consider Dong’s eligibility for CAT relief on
21 the basis of both her religion and family planning claims.
22 See Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.
5
1 2004) (holding that even if the denial of asylum or
2 withholding of removal is based on an adverse credibility
3 determination, it does not necessarily preclude relief under
4 the CAT since the facts about which the applicant is not
5 credible may be different from the facts needed to prove his
6 or her CAT claim.
7 For the foregoing reasons, the petition for review is
8 GRANTED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
19
6