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
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