Zhen Yin Yan v. Holder

11-3137-ag Yan v. Holder BIA Hom, IJ A094 922 803 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 5th day of July, two thousand twelve. 5 6 PRESENT: 7 JON O. NEWMAN, 8 RALPH K. WINTER, 9 DENNY CHIN, 10 Circuit Judges. 11 _______________________________________ 12 13 ZHEN YIN YAN, 14 Petitioner, 15 16 v. 11-3137-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Gerald Karikari, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Ernesto H. Molina, Jr., 27 Assistant Director; Jeffery R. 28 Leist, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 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 Zhen Yin Yan, a native and citizen of the People’s 6 Republic of China, seeks review of a July 5, 2011, decision 7 of the BIA affirming the March 3, 2010, decision of 8 Immigration Judge (“IJ”) Sandy K. Hom, which denied his 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Zhen 11 Yin Yan, No. A094 922 803 (B.I.A. July 5, 2011), aff’g No. 12 A094 922 803 (Immig. Ct. N.Y. City Mar. 3, 2010). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 the IJ’s decision 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); see also Yanqin Weng v. Holder, 20 562 F.3d 510, 513 (2d Cir. 2009). 21 For asylum applications such as Yan’s, governed by the 22 amendments made to the Immigration and Nationality Act by 23 the REAL ID Act of 2005, the agency may, considering the 2 1 totality of the circumstances, base a credibility finding on 2 inconsistencies or omissions in the applicant’s statements, 3 without regard to whether the inconsistencies or omissions 4 go “to the heart of the applicant’s claim.” See 8 U.S.C. 5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 6 167 (2d Cir. 2008). In this case, substantial evidence 7 supports the agency’s adverse credibility determination, 8 based on material inconsistencies between sworn statements 9 during Yan’s credible fear interview and his asylum 10 application and his testimony before an IJ. 11 During his hearing, Yan testified that he knowingly 12 made a false asylum claim under oath before an asylum 13 officer during his credible fear interview. He argues that 14 these false statements are inadequate to form the basis of 15 the agency’s adverse credibility determination because he 16 did not understand his oath, he was unaccompanied by 17 counsel, and he was reluctant to tell the truth due to the 18 threats and coercion from his smuggler.1 However, the BIA 1 Yan also argues that the IJ’s decision was clearly erroneous because it attributed to him a self-serving statement about mistreatment by the United States government that he did not make. Yan is correct that the IJ misattributed this statement; however, this error is harmless because nothing in the record suggests that the BIA gave this statement dispositive weight in deciding Yan’s appeal. See Ajdin v. Bureau of Citizenship and 3 1 reasonably concluded that Yan’s false statements during his 2 credible fear interview were a sufficiently reliable basis 3 to support the IJ’s adverse credibility determination 4 because he was provided a Mandarin interpreter, advised of 5 the importance of telling the truth, and he waived his 6 opportunity to have an attorney present. See Ming Zhang v. 7 Holder, 585 F.3d 715, 725 (2d Cir. 2009) (“Where the record 8 of a credible fear interview displays the hallmarks of 9 reliability, it appropriately can be considered in assessing 10 an alien’s credibility.”). Moreover, Yan’s credible fear 11 interview was memorialized in a written, verbatim 12 transcript, and Yan’s responses demonstrated his 13 understanding of the questions presented during the 14 interview. Id.; see also Ramsameachire v. Ashcroft, 357 15 F.3d 169, 180 (2d Cir. 2004). 16 Moreover, the adverse credibility finding was further 17 supported by the agency’s finding that Yan failed to 18 corroborate his claim because he did not include affidavits 19 or statements from his sister or other individuals in the 20 United States who would be knowledgeable about his claim. 21 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Immigration Servs., 437 F.3d 261, 266 (2d Cir. 2006). 4 1 As the only evidence of a threat to Yan’s life or freedom 2 depended upon his credibility, the adverse credibility 3 determination in this case necessarily precludes success on 4 his claims for asylum, withholding of removal, and CAT 5 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 6 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 7 523 (2d Cir. 2005). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of 10 removal that the Court previously granted in this petition 11 is VACATED, and any pending motion for a stay of removal in 12 this petition is DISMISSED as moot. Any pending request for 13 oral argument in this petition is DENIED in accordance with 14 Federal Rule of Appellate Procedure 34(a)(2), and Second 15 Circuit Local Rule 34.1(b). 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 5