Opinion
No. 06-3060-ag, NAC.
January 12, 2007.
FOR PETITIONER: Farah Loftus, Los Angeles, California.
FOR RESPONDENT: Craig S. Morford, United States Attorney, Middle District of Tennessee; Michael L. Roden, Assistant United States Attorney, Nashville, Tennessee.
PRESENT: HON. JON O. NEWMAN, HON. JOHN M. WALKER, JR., HON. CHESTER J. STRAUB, Circuit Judges.
UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
SUMMARY ORDER
Petitioner Jia Quan Weng, a native and citizen of the People's Republic of China, seeks review of a June 1, 2006, order of the BIA affirming the February 15, 2005, decision of Immigration Judge ("IJ") Vivienne E. Gordon-Uruakpa, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Jia Quan Weng, No. A 96 001 189 (B.I.A. June 1, 2006), aff'g No. A 96 001 189 (Immig. Ct. N.Y. City Feb. 15, 2005). We assume the parties' familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision as the final agency determination. See Yu Sheng Zhang v. U.S. Dep't of Justice, 362 F.3d 155, 159 (2d Cir. 2004). 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); 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 395, 406 (2d Cir. 2005).
Here, substantial evidence supports the IJ's adverse both interviews and that the interviewers failed to make record of those statements, the IJ did not err in finding it implausible that "two separate interviewers would have forgotten to include such a crucial piece of information" and, instead, relying on these notes when assessing Weng's credibility.See Diallo v. Gonzales, 445 F.3d 624, 631-32 (2d Cir. 2006) (stating that the record of an asylum interview may be relied on as a basis for an adverse credibility determination, as long as it contains a "meaningful, clear, and reliable summary of the statements made by the applicant at the interview"); Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004) (stating that "the INS may rely on airport statements in judging an asylum applicant's credibility if the record of the interview indicates that it presents an accurate record of the alien's statements, and that it was not conducted under coercive or misleading circumstances"). Given that Weng bases his asylum claim on his alleged resistance to the family planning officials' efforts to arrest his sister-in-law, his omission of that event from the two interviews amounts to substantial evidence in support of the IJ's adverse credibility finding. See Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir. 2006) (per curiam) (noting that this court has repeatedly held that omissions that go to a heart of an applicant's claim can form the basis for an adverse credibility determination).
Because the only evidence of a threat to Weng's life or freedom, or a likelihood that he would be tortured, depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on the claims for withholding of removal and relief under the CAT. See Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003).
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.