Miao Chen v. Holder

13-4023 Chen v. Holder BIA Poczter, IJ A200 940 766 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, 4 on the 26th day of September, two thousand fourteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MIAO CHEN, 14 Petitioner, 15 16 v. 13-4023 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Miao Chen, Pro Se, New York, NY. 24 25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 26 General; Cindy Ferrier, Assistant 27 Director; Jessica E. Sherman, Trial 28 Attorney, Office of Immigration 29 Litigation, United States Department 30 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 DENIED. 5 Petitioner Miao Chen, a native and citizen of China, 6 seeks review of a September 30, 2013 order of the BIA, 7 affirming, without opinion, the April 12, 2012 decision of 8 an Immigration Judge (“IJ”), which denied asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Miao Chen, No. A200 940 766 11 (B.I.A. Sept. 30, 2013), aff’g No. A200 940 766 (Immig. Ct. 12 New York City Apr. 12, 2012). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we review the 16 IJ’s decision as the final agency determination. See Shunfu 17 Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The 18 applicable standards of review are well established. See 8 19 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 20 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). 21 I. Credibility Determination 22 For applications such as Chen’s, which are governed by 23 the REAL ID Act, the agency may base a credibility finding 2 1 on an applicant’s demeanor, the plausibility of her account, 2 and inconsistencies in her statements, without regard to 3 whether they go “to the heart of the applicant’s claim.” 8 4 U.S.C. § 1158(b)(1)(B)(iii). “We defer therefore to an IJ’s 5 credibility determination unless, from the totality of the 6 circumstances, it is plain that no reasonable fact-finder 7 could make such an adverse credibility ruling.” Xiu Xia 8 Lin, 534 F.3d at 167. 9 Initially, the IJ found significant Chen that testified 10 inconsistently with her parents’ letter about whether she 11 returned home after her near arrest, because Chen’s near 12 arrest and its aftermath were the purported reasons for her 13 decision to flee China. Chen does not challenge this 14 finding. 15 Contrary to Chen’s assertions, the IJ properly relied 16 on the omission of Chen’s arrest warrant from her parents’ 17 letter. Chen argues that the IJ mischaracterized this as an 18 inconsistency where it is clear that it was an omission; 19 however, “[a]n inconsistency and an omission are . . . 20 functionally equivalent.” Xiu Xia Lin, 534 F.3d at 166. 21 Chen also contends that she adequately explained the 22 omission by stating that her parents are not educated, but 3 1 the IJ was not required to credit an explanation that is not 2 necessarily compelling to a reasonable fact-finder. See 3 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 4 The IJ’s adverse credibility determination was also 5 properly based, in part, on Chen’s credible fear interview. 6 When discrepancies arise from an applicant’s statements in a 7 credible fear interview, we will closely examine the 8 interview report to ensure that it represents a 9 “sufficiently accurate record” to merit consideration in 10 determining whether the applicant is credible. Ming Zhang 11 v. Holder, 585 F.3d 715, 723-25 (2d Cir. 2009). In Ming 12 Zhang, we found that a credible fear interview bore 13 sufficient indicia of reliability because: (1) “the 14 proceeding was memorialized in a typewritten document 15 setting forth the questions . . . [and] responses”; (2) “the 16 interview was conducted with the aid of a[n] interpreter and 17 [the applicant did] not contend that she did not understand 18 the questions presented”; (3) “the interviewing officer 19 explained the purpose of the interview, the importance of 20 providing full and accurate testimony, and the fact that 21 [the applicant] could ask for clarification at any point 22 during the proceedings”; and (4) the applicant “was asked 4 1 questions that were ‘clearly designed to elicit a potential 2 basis for an asylum claim.’” 585 F.3d at 725 (quoting 3 Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 4 2004)). The IJ explicitly considered these factors on the 5 record and found that Chen’s credible fear interview bore 6 sufficient indicia of reliability; that determination was 7 not erroneous. 8 Moreover, the IJ did not err in finding that Chen 9 initially denied having applied for a visa during her 10 credible fear interview before being told that the 11 application was in her file. Chen contends that the IJ 12 misconstrued the interview transcript because she was asked 13 whether she had applied for a visa and not whether a visa 14 application had been filed on her behalf; however, “support 15 for a contrary inference—even one more plausible or more 16 natural—does not suggest error.” Siewe v. Gonzalez, 480 17 F.3d 160, 168 (2d Cir. 2007). Because the IJ’s inference 18 “is tethered to the evidentiary record, we will accord 19 deference to the finding.” Id. at 168-69. Indeed, the IJ 20 observed that Chen gathered documents on more than one 21 occasion, filled out at least some of the necessary forms, 22 and went to an interview at the U.S. Consulate in China in 23 hopes of obtaining a visa. In addition, Chen does not 5 1 contest the IJ’s finding that she testified inconsistently 2 with her credible fear interview about whether she spoke to 3 her parents after her near arrest and whether they knew she 4 was Catholic. 5 Based on the foregoing, we find that the IJ’s adverse 6 credibility determination is supported by substantial 7 evidence because it cannot be said “that no reasonable 8 fact-finder could make such an adverse credibility ruling.” 9 Xiu Xia Lin, 534 F.3d at 167. The agency therefore did not 10 err in denying asylum, withholding of removal, and CAT 11 relief because all three claims shared the same factual 12 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 13 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 14 523 (2d Cir. 2005). 15 Chen’s assertion that the IJ erred by failing to 16 separately assess her risk of future persecution on the 17 basis of her status as a practicing Christian is incorrect. 18 In Paul, we found that the agency’s determination that an 19 alien was not credible as to claims of past persecution did 20 not preclude the alien from demonstrating a well-founded 21 fear of future persecution based on objective evidence, 22 where the applicant had independently established that he 23 was, in fact, a practicing Christian. 444 F.3d at 155-57. 6 1 Unlike Paul, however, all of Chen’s claims were dependent 2 upon her credibility because there was no separate 3 determination that she was a practicing Catholic. 4 II. Due Process 5 As a general rule, “[p]arties claiming denial of due 6 process in immigration cases must, in order to prevail, 7 allege some cognizable prejudice fairly attributable to the 8 challenged process.” Garcia-Villeda v. Mukasey, 531 F.3d 9 141, 149 (2d Cir. 2008). “The fundamental requirement of 10 due process is the opportunity to be heard at a meaningful 11 time and in a meaningful manner.” Mathews v. Eldridge, 424 12 U.S. 319, 333 (1976) (internal quotation marks omitted). 13 Chen argues that she was denied due process because: 14 the IJ prevented her priest from testifying; her counsel was 15 not given sufficient time to rebut the I-130 visa petition 16 proffered at her hearing; and the BIA affirmed the IJ’s 17 decision without opinion. Her arguments are meritless. The 18 IJ did not prevent Chen’s priest from testifying; Chen’s 19 attorney agreed to taking the priest’s written submission as 20 evidence. In addition, Chen’s counsel did not object to the 21 government’s introduction of the I-130 petition into 22 evidence and stated that she had enough time to review the 23 submission. Lastly, the BIA’s affirmance of the IJ’s 7 1 decision, without opinion, was not a denial of due process. 2 See Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 3 160 (2d Cir. 2004). 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of 6 removal that the Court previously granted in this petition 7 is VACATED, and any pending motion for a stay of removal in 8 this petition is DISMISSED as moot. Any pending request for 9 oral argument in this petition is DENIED in accordance with 10 Federal Rule of Appellate Procedure 34(a)(2), and Second 11 Circuit Local Rule 34.1(b). 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15 8