         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-



                                   2
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

                                     3
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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