         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
15




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