Zai Xiang Chen v. Holder

08-6085-ag
Chen v. Holder
BIA
Opaciuch, IJ
A076 388 443
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 11 th day of January, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 ZAI XIANG CHEN,
14 Petitioner,
15
16 v. 08-6085-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, *
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24

*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Aviva L. Poczter, Senior
3 Litigation Counsel; Christopher P.
4 McGreal, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED, that the petition for review

12 is DENIED.

13 Zai Xiang Chen, a native and citizen of the People’s

14 Republic of China, seeks review of a November 20, 2008 order

15 of the BIA, affirming the June 1, 2001 decision of

16 Immigration Judge (“IJ”) John Opaciuch, which denied his

17 application for asylum, withholding of removal, and relief

18 under the Convention Against Torture (“CAT”). In re Zai

19 Xiang Chen, No. A076 388 443 (B.I.A. Nov. 20, 2008), aff’g

20 No. A076 388 443 (Immig. Ct. N.Y. City June 1, 2001). We

21 assume the parties’ familiarity with the underlying facts

22 and procedural history in this case.

23 Under the circumstances of this case, we review the

24 IJ’s decision as the final agency determination. Yu Sheng

25 Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.

26 2004). The applicable standards of review are well-

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1 established. See Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d

2 Cir. 2007); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d

3 Cir. 2008).

4 Chen asserts that he is eligible for relief from

5 removal because his wife was forced to undergo an abortion

6 and to use an intrauterine device. It is unnecessary to

7 examine the IJ’s credibility findings in connection with

8 this claim because even if such findings were flawed, remand

9 would be futile. See Lin Zhong v. U.S. Dep’t of Justice,

10 480 F.3d 104, 117 (2d Cir. 2007). We can predict with

11 confidence that the agency would reach the same result upon

12 reconsideration of Chen’s claim, because, pursuant to our

13 decision in Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d

14 296, 314 (2d Cir. 2007) (en banc), Chen is not per se

15 eligible for asylum based on his wife’s alleged persecution.

16 Shi Liang Lin clarified that the spouse of a person who

17 has been forced to undergo a forced abortion or

18 sterilization may qualify for refugee status if he or she

19 demonstrates past persecution or fear of future persecution

20 based on “other resistance to a coercive population control

21 program.” 494 F.3d at 314; see also 8 U.S.C. § 1101(a)(42).

22 Before the IJ, Chen alleged that he quarreled with family

23 planning officials after they forced his wife to submit to

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1 an abortion, and that the authorities wanted to arrest him

2 as a result. We do not address whether such conduct could

3 qualify as other resistance because substantial evidence

4 supports the IJ’s determination that Chen’s testimony with

5 respect to the quarrel was not credible. Notably, Chen’s

6 statements during his credible fear interview regarding the

7 circumstances of his escape from family planning officials

8 were inconsistent with his testimony before the IJ.

9 Moreover, the IJ did not err in finding sufficiently

10 reliable the record of Chen’s credible fear interview, which

11 consisted of a verbatim transcript. See Ming Zhang v.

12 Holder, 585 F.3d 715, 722-26 (2d Cir. 2009).

13 For the foregoing reasons, the petition for review is

14 DENIED. As we have completed our review, any stay of

15 removal that the Court previously granted in this petition

16 is VACATED, and any pending motion for a stay of removal in

17 this petition is DISMISSED as moot. Any pending request for

18 oral argument in this petition is DENIED in accordance with

19 Federal Rule of Appellate Procedure 34(a)(2), and Second

20 Circuit Local Rule 34.1(b).

21

22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25 By:___________________________

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