No. 03-40649-ag (L); 04-1098-ag (con) NAC.United States Court of Appeals, Second Circuit.
February 27, 2007.
UPON DUE CONSIDERATION of these petitions for review of decisions of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the petitions for review are DENIED.
FOR PETITIONER: Gang Zhou, New York, New York.
FOR RESPONDENT: Troy A Eid, United States Attorney for theDistrict of Colorado, Mark S. Pestal, Assistant United StatesAttorney, Denver, Colorado.
PRESENT: HON. DENNIS JACOBS, ChiefJudge, HON. JOSEPH M. McLAUGHLIN, HON. GUIDOCALABRESI, Circuit Judges.
Petitioner Yong Wang, a citizen of the People’s Republic of China, seeks review of a September 17, 2003 order of the BIA affirming the April 11, 2002 decision of Immigration Judge (“IJ”) Paul L. Johnston denying his applications for asylum and withholding of removal. In re Yong Wang, No. A77 354 280 (B.I.A. Sep. 17, 2003), aff’g No. A77 354 280 (Immig. Ct. N.Y. City Apr. 11, 2002). Wang also seeks review of a February 13, 2004 order of the BIA denying his motion to reconsider. In re Yong Wang, a.k.a. Xiangjin Lin, No A77 354 280 (B.I.A. Feb. 13, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA affirms the IJ’s decision only in part, we review the IJ’s decision as modified by the BIA decision, i.e., minus the reasoning rejected by the BIA Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (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). 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 315, 339
(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).
Where discrepancies arise from an applicant’s statements in an airport interview, this Court will ensure that it represents a “sufficiently accurate record” of the applicant’s statements to merit consideration in determining whether the applicant is credible. Ramsameachire v. Ashcroft, 357 F.3d 169, 179
(2d Cir. 2004). Here, the record indicates that the interview is in transcript form and that Wang confirmed that he (1) understood the questions he was being asked and (2) swore to make only truthful statements. In addition, as discussed below, the immigration officer at the airport asked questions designed to elicit information about any potential asylum claims. Finally, Wang denied that he was ever arrested, interrogated, physically abused, or otherwise mistreated by the police in China in a way that would indicate that he would be reluctant to relate his asylum claim to U.S. officials. There was no error in the IJ’s reliance on the record of Wang’s airport interview.
Wang’s airport interview statements dramatically undermine his hearing testimony. He said he came to work in the United States, he had not been harmed, threatened, arrested or persecuted by the Chinese government, and his only problem in China was that his fellow villagers “picked on” him. These statements which are inconsistent with Wang’s testimony at the hearing, provide substantial evidence to support the adverse credibility determination. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006). We are not compelled to overturn the IJ’s rejection of Wang’s explanation for the discrepancies in his statements. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 397 n. 6, 399 n. 8. (2d Cir. 2005).
Nor did the IJ err in denying Wang’s application for withholding of removal. See Majidi v. Gonzales, 430 F.3d 77, 81-82 (2d Cir. 2005) (finding that an applicant who fails to establish eligibility for asylum is necessarily unable to establish eligibility for withholding of removal).
As to the denial of Wang’s motion to reconsider, we review for abuse of discretion, see Kaur v. BIA, 413 F.3d 232, 233
(2d Cir. 2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006), and see none. 13 The motion to reconsider merely repeated Wang’s arguments that the IJ had erred in his credibility analysis. See Jin Ming Liu, 439 F.3d at 111.
For the foregoing reasons the petitions for review are 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 these petitions is DISMISSED as moot. Any pending request for oral arguments in this case is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), Second Circuit Local Rule 34(d)(1).