Zhang v. Holder

• Decision Date: 30 October 2009
• Docket Number: Docket No. 07-0327-ag.
• Citation: 585 F.3d 715
• Parties: Ming ZHANG, Ja Yun Zhang, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Second Circuit

585 F.3d 715

Ming ZHANG, Ja Yun Zhang, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.^*

Docket No. 07-0327-ag.

United States Court of Appeals, Second Circuit.

Heard: January 16, 2008.

Decided: October 30, 2009.

Vlad Kuzmin, Kuzmin & Associates, P.C., New York, NY, for Petitioners.

Regan C. Hildebrand, Office of Immigration Litigation (Peter D. Keisler, Assistant Attorney General, Lisa Arnold, Senior Litigation Counsel, Keith McManus, Trial Attorney, and Shaole Green, Attorney/Law Clerk, Office of Immigration Litigation, on the brief), Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Petitioner Ming Zhang ("petitioner") and her minor son Ja Yun Zhang, natives and citizens of the People's Republic of China, seek review of a December 27, 2006 order of the Board of Immigration Appeals ("BIA") denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture.¹ In re Zhang, Nos. A 96 425 876, A 96 425 877 (B.I.A. Dec. 27, 2006); In re Zhang, Nos. A 96 425 876, A 96 425 877 (Immig. Ct. N.Y. City June 29, 2005). On appeal, Ming Zhang contends, inter alia, that it was error for the agency to determine—based, in part, on inconsistencies between her testimony at her removal hearing and the statements that she made at her airport interview and "credible fear" interview—that she had not testified credibly about the basis for her petition for relief. The circumstances under which an immigration judge ("IJ") or the BIA may consider the record of a credible fear interview when evaluating an alien's credibility is a matter of first impression in our Circuit.²

We conclude that (1) the records of petitioner's airport interview and credible fear interview were sufficiently reliable to be considered by the agency when evaluating petitioner's credibility and (2) taking the records of these interviews into account, substantial evidence supports the agency's determination that petitioner did not testify credibly about the basis for her application for relief.

I. Background

A. Airport Interview (June 6, 2003)

On June 6, 2003, petitioner and her son were detained at John F. Kennedy Airport in New York while attempting to enter the country. Later that same day, petitioner was interviewed by an immigration inspector. Petitioner received the assistance of a Mandarin interpreter, through whom she conveyed that she understood that the purpose of this interview was to determine whether she should be temporarily admitted into the United States despite her apparent inadmissibility. In response to the inspector's question about whether she had "any fears or concerns about being removed from the United States or being sent back to [her] home country," petitioner stated: "I am afraid because I had by pass [sic] surgery on my heart and the government was forcing me not to have any more children. The government wanted me to go to a hospital and have a birth control device implant inside of me." She further stated that she had been kept "in detention for two days because [she] refused to have the birth control operation." In response to the inspector's question about whether she would be harmed if returned to her home country, petitioner stated: "If I am sent back I would die." Petitioner then affirmed that she had read the transcript of her statement (or had it read to her), that her answers were "true and correct to the best of [her] knowledge," and that "this statement [wa]s a full, true and correct record of [her] interrogation."

B. "Credible Fear" Interview (June 12, 2003)

On June 12, 2003, an asylum officer conducted a "credible fear interview" with petitioner at an Immigration and Naturalization Service ("INS") facility in Jamaica, New York, where petitioner had been detained since her airport interview. Petitioner was once more provided with a Mandarin interpreter. At the start of the interview, the asylum officer read petitioner the following statement:

The purpose of this interview is to determine whether you may be eligible for asylum or protection from removal to a country where you fear persecution or torture. I am going to ask you questions about why you fear returning to your country.... It is very important that you tell the truth during the interview and that you respond to all of my questions. This may be your only opportunity to give such information. Please feel comfortable telling me why you fear harm. U.S. law has strict rules to prevent the disclosure of what you tell me today about the reasons why you fear harm. The information you tell me about the reasons for your fear will not be disclosed to your government, except in exceptional circumstances. The statements you make today may be used in deciding your claim and in any future immigration proceedings. It is important that we understand each other. If at any time I make a statement you do not understand, please stop me and tell me you do not understand so that I can explain it to you.

In response to the asylum officer's question about whether petitioner or any member of her family had "ever been mistreated or threatened by anyone in any country to which [she] may be returned," petitioner provided the following statement:

After I had my son in 1990, I was forced to have an [intrauterine device ("IUD")] insertion by the Family Planning Officials (FPO). I attempted to remove it once to have more children in 1997 but was found to have had it removed and it was reinserted. In August 2002, I had to have surgery for my heart problems and the IUD was removed. The doctors said that I could not have the IUD inserted again because it will interfere with my heart problems. The FPO's [sic] came to re-insert the IUD in December 2002 but when my husband and I protested, they were going to arrest us, so we ran away and hid. If I have the IUD inserted again, I may die from complications from my heart medication and I will not be able to have more children.

In response to the inspector's question about whether she would be harmed if returned to her home country, petitioner stated: "The Family Planning Officials will arrest me and have another IUD inserted in me if I go back. If this happens, I may die from complications due to my heart condition." On the basis of petitioner's statements, petitioner was referred for a full hearing on her claims for asylum and withholding of removal. Pending a full hearing, petitioner was transferred to an INS "Minor and Family Shelter" in Pennsylvania, which allowed her to be housed together with her minor son, and petitioner and her son were eventually released on parole from INS custody in September 2003.

C. Asylum Application (November 12, 2003) and Merits Hearings (February 10, 2005 and June 8, 2005)

On November 12, 2003, petitioner submitted a formal asylum application. In support of her application, petitioner submitted a sworn statement claiming (1) that she had experienced two forced abortions, one in September 1988 when she was one month pregnant and one in March 1989 when she was three weeks pregnant; (2) that, in July 1997, family planning officials forcibly entered her home and took her to the family planning office, where she was detained for three days and subjected to an IUD insertion; (3) that the July 1997 events motivated her to attempt suicide; and (4) that, in December 2002, her husband had physically assaulted family planning officials who arranged for her to have an IUD inserted against her wishes and, as a result, petitioner and her husband were forced to flee from their marital home to the home of petitioner's sister.

On February 10 and June 8, 2005, petitioner appeared before an IJ for hearings on her asylum application. At those hearings, petitioner testified that family planning officials had arranged for the termination of her first two pregnancies without informing her how far advanced these pregnancies were. With regard to her reasons for not wanting to use an IUD after her heart surgery, she stated that the doctor who had performed the surgery had recommended that she not use an IUD after her surgery because of the medication she would have to take. In describing her husband's December 2002 encounter with local family planning officials, she stated that her husband had fled to his uncle's home after the incident, whereas she had gone to her sister's home.

Both the IJ and the government asked petitioner to explain several discrepancies in her testimony and submissions. The IJ asked why, if petitioner had not been told at what stage her two pregnancies had been aborted, she was able to provide this information in her asylum application. Petitioner, in response, reiterated that she did not know how advanced her pregnancies were and asserted, without explanation, that the statement in her asylum application had not been a lie. When the IJ asked this question again at the second hearing, petitioner claimed that she had prepared the asylum application while in detention.

Petitioner also testified that family planning officials had followed her husband home after his encounter with them in December 2002. When asked why she had not included this fact in her asylum application, she was unable to provide any explanation. The IJ also inquired why she had not discussed her two forced abortions or suicide attempt at the credible fear and airport interviews. Petitioner stated that she had not discussed the forced abortions because she was "confused" and did not know what to say. She stated that she had mentioned "suicide" at her airport interview when answering a question about what would happen if she were "sent back." However, she could not recall whether she had mentioned that she had "attempted suicide in the past." Finally, the IJ asked why the records from petitioner's heart surgery did not mention petitioner's IUD, ...