Ben Biao Chen v. Mukasey
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Ben Biao Chen, a native and citizen of the People’s Republic of China, seeks review of a June 4, 2007 order of the BIA affirming the August 30, 2005 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying his application for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. In re Ben Biao Chen, No. A97 958 373 (B.I.A. June 4, 2007), aff'g No. A97 958 373 (Immig. Ct. N.Y. City Aug. 30, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005). We review 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), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir. 2005).
Substantial evidence also supports the IJ’s finding that Chen’s family planning claim was not credible. The IJ found that while Chen testified that he was arrested and detained for several hours, during his credible fear interview, Chen had only indicated that family planning authorities “threatened to arrest [him] in the future.” He omitted any assertion that they had arrested him.
While the IJ’s decision is not without error, we find nonetheless that remand would be futile in this case because the findings that the IJ properly made provide so much evidence for the adverse credibility determination that this Court can confidently predict that the IJ would reach the same decision absent the errors that were made. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006).
Because the only evidence of a threat to Chen’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
. Chen asserts that the airport statement was not reliable under the Ramsameachire test. However, the IJ acknowledged that Chen did not sign the airport interview statement, and thus did not accord it "a great deal of weight.” Rather, the IJ's denial was grounded primarily on Chen’s omission of his religious persecution claim at his credible fear interview. Chen has never challenged the manner in which that interview was conducted. He argues, instead, that his omission was due to his recent arrival in the United States, his total unfamiliarity with the law, and the snakehead's coercive advice. Therefore, we conclude that the credible fear interview was a "sufficiently accurate record” of Chen's statements to merit consideration by the IJ in assessing his credibility. See Ramsameachire, 357 F.3d at 179-80.
. While Chen also challenges the IJ's alternate finding that he was ineligible for asylum as the unmarried partner of a person who was forcibly sterilized, it is unnecessary to review this question here, as the adverse credibility determination is dispositive in this case.
Reference
- Full Case Name
- BEN BIAO CHEN v. Michael B. MUKASEY, Attorney General of the United States
- Status
- Published