Xiao Chen v. Board of Immigration Appeals
Xiao Chen v. Board of Immigration Appeals
Opinion of the Court
SUMMARY ORDER
Xiao Chen petitions for review of the June 2004 BIA decision affirming Immigration Judge (“IJ”) Victoria Ghartey’s decision denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 158 (2d Cir. 2004). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004).
Where discrepancies arise from an applicant’s statements in an airport interview, this Court generally looks to whether (1) the record of the interview merely summarizes or paraphrases the applicant’s statements rather than providing a verbatim account or transcript, (2) the questions posed to the applicant seem designed to elicit the details of an asylum claim, (3) the applicant appears to have been reluctant to reveal information to immigration officials because of prior interrogation sessions or other coercive experiences in his or her home country, and (4) the applicant’s answers to the questions posed suggest that he or she did not understand English or the translations provided by the interpreter. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir. 2004).
In this case, Chen’s airport interview was transcribed and Chen had signed the
Furthermore, this Court also accepts the IJ’s determination that Chen was evasive, since this finding is entitled to deference, see Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir. 2005), and her finding that Chen had testified inconsistently regarding the date that his parents were released from detention and his contact with Falun Gong practitioners. Contrary to Chen’s assertion, the IJ did not err in requiring Chen to provide corroborating evidence of his military service, inasmuch as the IJ found that Chen had not otherwise testified credibly. See Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 164 (2d Cir. 2006).
Although Chen has identified some erroneous grounds relied on by IJ, remand is futile because the non-erroneous grounds, as discussed above, provide substantial evidence for the IJ’s conclusion and we can “confidently predict” that the same decision would be made on remand. See id. at 162 (quoting Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395 (2d Cir. 2005)).
Finally, because Chen failed to raise the issue of CAT relief in his brief before this Court, this issue has been waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir. 2005).
For the foregoing reasons, the petition for review is DENIED. Having completed our review, any stay of removal that the Court previously granted in this proceeding is VACATED, and any pending motion for a stay of removal is DENIED as moot. Any pending request for oral argument is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(d)(1).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.