Zhen Xin Lu v. Gonzales
Opinion of the Court
SUMMARY ORDER
Petitioner Zhen Xin Lu, a native and citizen of the People’s Republic of China, seeks review of a December 22, 2005 order of the BIA affirming the April 21, 2004 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, denying petitioner’s
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, 59 (2d Cir. 2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (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). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 815, 339-40 (2d Cir. 2006) (agreeing with this principle, but avoiding remand, in spite of deficiencies in an adverse credibility determination, because it could be confidently predicted that the IJ would adhere to the decision were the case remanded).
In this case, the IJ’s adverse credibility determination was supported by substantial evidence. Lu testified that he first learned his girlfriend had been subjected to a forced abortion in February 2002. However, upon his arrival in the United States in December 2002, Lu stated, “[M]y girlfriend is pre[ ]gnant ... and the officials want her to abort the baby.” That same month, during a credible fear interview, Lu stated, “I have [a] girlfriend who is pregnant. I am not sure if [the baby was] born or aborted,” and “I do not know if child [was] born or not.” Despite Lu’s arguments that he had trouble expressing himself in Mandarin, the IJ properly relied on both the airport interview and the credible fear worksheet in reaching his adverse credibility determination. During the airport interview, Lu indicated that he understood all the questions asked, and his answers to the questions posed do not suggest otherwise. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir. 2004). Similarly, at the credible fear interview, Lu indicated that he spoke Mandarin, and he later testified that he had attended six years of school taught in the Mandarin language. Because the inconsistency between Lu’s testimony and his airport and credible fear interviews goes to the heart of Lu’s claim that he suffered past persecution and is substantial when measured against the entire record, the IJ did not err by using this inconsistency to support his adverse credibility determination. See Secaidar-Rosales v. I.N.S., 331 F.3d 297, 308 (2d Cir. 2003).
The IJ also properly relied on Lu’s inconsistent statements with regard to the age requirements for marriage in China. Because Lu’s entire claim was that he and his girlfriend were persecuted for violating the birth control policy by becoming pregnant prior to the legal marriage age, it was reasonable for the IJ to expect Lu to be consistent regarding the applicable marriage requirements.
Because the IJ’s adverse credibility determination is supported by substantial evidence, we do not reach the IJ’s alternative burden of proof finding. Further
For the foregoing reasons, Lu’s petition for review is DENIED. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), Second Circuit Local Rule 34(d)(1).
Reference
- Full Case Name
- ZHEN XIN LU v. Alberto R. GONZALES
- Status
- Published