     14-4218
     Wan v. Lynch
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A205 043 435
                         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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   24th day of March, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PETER W. HALL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   JING WAN,
14                  Petitioner,
15
16                  v.                                               14-4218
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Gary J. Yerman, New York, New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John S.
28                                       Hogan, Assistant Director; David H.
29                                       Wetmore, Trial Attorney; Lisa M.
1                                 Southerland, Law Clerk, Office of
2                                 Immigration Litigation, United
3                                 States Department of Justice,
4                                 Washington, D.C.

5          UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9          Petitioner Jing Wan, a native and citizen of the People’s

10   Republic of China, seeks review of an October 16, 2014, decision

11   of the BIA affirming an April 22, 2013, decision of an

12   Immigration Judge (“IJ”) denying Wan’s application for asylum,

13   withholding of removal, and relief under the Convention Against

14   Torture (“CAT”).    In re Jing Wan, No. A 205 043 435 (B.I.A. Oct.

15   16, 2014), aff’g No. A 205 043 435 (Immig. Ct. N.Y. City Apr.

16   22, 2013).     We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18         Under the circumstances of this case, we have reviewed both

19   the   IJ’s   and   the   BIA’s   decisions,   “for   the   sake   of

20   completeness.”     Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

21   524, 528 (2d Cir. 2006).     The applicable standards of review




                                      2
1    are well established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin

2    Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

3        For asylum applications, like Wan’s, governed by the REAL

4    ID Act, the agency may, “[c]onsidering the totality of the

5    circumstances,” base a credibility finding on inconsistencies

6    between the applicant’s statements and other evidence, “without

7    regard to whether” they go “to the heart of the applicant’s

8    claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,

9    534 F.3d 162, 163-64 (2d Cir. 2008).         “We defer . . . to an IJ’s

10   credibility determination unless, from the totality of the

11   circumstances, it is plain that no reasonable fact-finder could

12   make such an adverse credibility ruling.”         Xiu Xia Lin, 534 F.3d

13   at 167.

14       The agency did not violate Wan’s due process rights by

15   relying on the notes from her asylum interview.           Evidence may

16   be admitted in immigration proceedings “if it is probative and

17   its use is fundamentally fair.”         Montero v. INS, 124 F.3d 381,

18   385-86 (2d Cir. 1997).    “Fairness in this context ‘is closely

19   related   to   the   reliability       and   trustworthiness   of   the

20   evidence.’”    Id. at 386 (quoting Felzcerek v. INS, 75 F.3d 112,

21   115 (2d Cir. 1996)).     Notes from an asylum interview do not
                                        3
1    warrant the “special scrutiny” given to records of airport or

2    credible fear interviews.     Diallo v. Gonzales, 445 F.3d 624,

3    632 (2d Cir. 2006).   To rely on notes from an asylum interview,

4    the IJ need only determine that the record “contain[s] a

5    meaningful, clear, and reliable summary of the statements made

6    by the applicant at the interview.”    In re S-S-, 21 I. & N. Dec.

7    121, 124 (B.I.A. 1995); see also Diallo, 445 F.3d at 632-33

8    (relying on the “useful guidance” in Matter of S-S-).          As the

9    IJ found, a monitor oversaw the translations, the notes were

10   detailed, and there was no evidence of difficulty communicating

11   with the interpreter.     Given these considerations, the IJ did

12   not violate Wan’s due process rights in concluding that the

13   notes bore sufficient indicia of reliability to be entitled to

14   considerable   weight.     See   Diallo,    445   F.3d   at   632-33.

15   Further, the Government was not required to introduce the notes

16   in advance of the hearing, as they were impeachment evidence.

17   See Imm. Ct. Pract. Man. Ch. 3.1(b)(ii)(A).

18       As the agency did not err in relying on the interview notes,

19   substantial    evidence    supports   the    adverse     credibility

20   determination, which was based largely on inconsistencies

21   between the asylum interview and Wan’s testimony.        Wan’s asylum
                                      4
1    claim was that she was forced to have an abortion after she

2    became pregnant by a U.S. citizen, whom she met in China while

3    she was working as a tour guide.          Wan testified that she met

4    Joseph Pereira while she was working as a tour guide, but at

5    the asylum interview she claimed to have met him online before

6    he came to China and that he came to China in order to meet her

7    in person.    She explained this inconsistency by denying that

8    she had said this in the asylum interview and by stating that

9    she   did   not   recall   the   asylum   interview   clearly.      These

10   explanations do not compel a reasonable fact-finder to credit

11   her testimony, given the degree of specificity of the asylum

12   interview notes with respect to their meeting.             See Majidi v.

13   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

14         Further, Wan testified inconsistently with her asylum

15   interview regarding her relationship with Pereira after she

16   discovered that she was pregnant.         While she told the asylum

17   officer that Pereira was very happy when he learned of her

18   pregnancy, that they wanted to get married, and that they

19   continued    to   communicate     over    the   Internet    after    this

20   conversation, she testified that his response to her pregnancy

21   was simply to tell her to take care and that they ceased
                                        5
1    communicating immediately afterward.   Her explanation for this

2    inconsistency was that she was only asked at the asylum

3    interview whether she could have communicated with him, rather

4    than whether she actually did. Once again, this explanation is

5    unconvincing.   See id.

6        Finally, the IJ did not err in finding that Wan’s lack of

7    reliable corroboration further undermined her credibility.

8    See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

9    The IJ reasonably found that the letter from Wan’s parents was

10   inadequate to corroborate her testimony, because it merely

11   mentioned the date of the abortion with no further details.   Xiu

12   Xia Lin, 534 F.3d at 166 n.3; Y.C. v. Holder, 741 F.3d 324, 334

13   (2d Cir. 2013).     While the BIA mischaracterized the IJ’s

14   decision as finding that Wan could have introduced medical

15   documentation, this error is harmless: because the lack of

16   corroboration was used to bolster the credibility finding

17   rather than as an independent ground for denying relief, the

18   IJ was not required to specify evidence that Wan could have

19   introduced.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

20   315, 341 (2d Cir. 2006).


                                    6
1        For the foregoing reasons, the petition for review is

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

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot.    Any pending request for oral argument

6    in this petition is DENIED in accordance with Federal Rule of

7    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O=Hagan Wolfe, Clerk




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