         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
