         09-1885-ag
         Dong v. Holder
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A095 710 461
                           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 28 th day of June, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                    Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                DENNY CHIN,
11                    Circuit Judges.
12       ______________________________________
13
14       XIAO YUN DONG,
15                Petitioner,
16
17                        v.                                    09-1885-ag
18                                                              NAC
19       ERIC H. HOLDER, JR.,
20       UNITED STATES ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Theodore N. Cox, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Shelley R. Goad, Senior
28                                     Litigation Counsel; Tim Ramnitz,
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     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 GRANTED.

5         Xiao Yun Dong, a native and citizen of the People’s

6    Republic of China, seeks review of an April 8, 2009, order

7    of the BIA affirming the February 27, 2008, decision of

8    Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied

9    Dong’s application for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).     In re

11   Xiao Yun Dong No. A095 710 461 (BIA April 8, 2009), aff’g

12   No. A095 710 461 (Immig. Ct. N.Y. City Feb. 27, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15        Under the circumstances of this case, we review the

16   decision of the IJ 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); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).

21   I.   The IJ’s Adverse Credibility Determination

22        Substantial evidence supports the IJ’s determination


                                  2
1    that Dong’s testimony was not credible.    The IJ relied on

2    inconsistencies between Dong’s hearing testimony and

3    credible fear interview statements; as between the two

4    accounts, the IJ reasonably credited Dong’s statements from

5    her credible fear interview.   See Ramsameachire v. Ashcroft,

6    357 F.3d 169, 179 (2d Cir. 2004); Zhang v. Holder, 585 F.3d

7    715, 724 (2d Cir. Oct. 30, 2009).   The record of the

8    credible fear interview bears sufficient indicia of

9    reliability: (1) it appears to be a transcript of Dong’s

10   interview; (2) the questions posed were designed to elicit

11   details of Dong’s asylum claim; (3) Dong’s argument that she

12   was nervous because she had been arrested previously in

13   China is insufficient to undermine the credible fear

14   interview’s reliability; and (4) although Dong argues that

15   she did not understand the questions, she specifically

16   requested a change in interpreters from Mandarin to Foo Chow

17   (and so acknowledged her merits hearing). See Ramsameachire,

18   357 F.3d at 179; Zhang, 585 F.3d at 725.    We are not

19   compelled to find error in the IJ’s refusal to credit the

20   explanations Dong offered for the inconsistencies between

21   her testimony and her credible fear interview.    See Majidi

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


                                    3
1    II.   The Persecutor Bar

2          The agency properly determined--based on Dong’s

3    credible fear interview statement--that Dong assisted in the

4    persecution of others on account of a protected ground, and

5    was therefore statutorily ineligible for asylum and

6    withholding of removal.    See 8 U.S.C. §§ 1158(b)(2)(A)(i),

7    1231(b)(3)(B)(i).   Dong testified that she did not regularly

8    guard women, that she did not know that the women underwent

9    forced abortions until “later,” and that she performed a

10   “redemptive act” by helping a woman to escape.    See Weng v.

11   Holder, 562 F.3d 510 (2d Cir. April 14, 2009); Yan Yan Lin

12   v. Holder, 584 F.3d 75 (2d Cir. Oct. 14, 2009).

13         However, the IJ found Dong’s testimony not credible.

14   Instead, the IJ credited Dong’s statements at her credible

15   fear interview that she guarded approximately ten women over

16   a period of three months, knew the women were scheduled for

17   forced abortions, and did not help the woman to escape.      See

18   Xu Shen Gao v. U.S. Att’y Gen’l, 500 F.3d 93, 103 (2d Cir.

19   2007) (stating that the persecutor bar “requires some level

20   of culpable knowledge that the consequences of one’s actions

21   would assist in acts of persecution”).    Dong’s actions are

22   therefore analogous to those considered in Zhang Jian Xie v.


                                    4
1    INS, 434 F.3d 136, 143 (2d Cir. 2006) (“assistance in

2    persecution” is conduct that is “active and ha[s] direct

3    consequences for the victims.”); Weng, 562 F.3d at 515

4    (“[t]o be sure, guarding patients awaiting forced abortions

5    comes closer to active assistance than does post-operative

6    monitoring of vital signs.”).         Moreover, nothing in the

7    record suggests that Dong was not free to voluntarily leave

8    her job at any time.    See Xie, 434 F.3d at 143.

9    Accordingly, the agency properly found that Dong was

10   statutorily barred from asylum and withholding of removal

11   based on her assistance in the persecution of others.            See

12   8 U.S.C. §§ 1158(b)(2)(A)(i); 1231(b)(3)(B)(i).

13   III. CAT Relief

14          Deferral of removal under the CAT is available to those

15   who would qualify for asylum and withholding of removal but

16   for a ground of “mandatory denial” such as the persecutor

17   bar.    See 8 C.F.R. § 1208.17.       Because the BIA failed to

18   consider Dong’s CAT claim, and because it is unclear whether

19   the agency believed Dong to be a Catholic, we remand so that

20   the agency may consider Dong’s eligibility for CAT relief on

21   the basis of both her religion and family planning claims.

22   See Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.


                                       5
1    2004) (holding that even if the denial of asylum or

2    withholding of removal is based on an adverse credibility

3    determination, it does not necessarily preclude relief under

4    the CAT since the facts about which the applicant is not

5    credible may be different from the facts needed to prove his

6    or her CAT claim.

7        For the foregoing reasons, the petition for review is

8    GRANTED.   As we have completed our review, any stay of

9    removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot.    Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2), and Second

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
18
19




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