ZAI XIANG CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 359 F. App'x 268

SUMMARY ORDER Zai Xiang Chen, a native and citizen of the People’s Republic of China, seeks review of a November 20, 2008 order of the BIA, affirming the June 1, 2001 decision of Immigration Judge (“IJ”) John Opaciuch, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zai Xiang Chen, No. [ AXXX XXX XXX ] (B.I.A. Nov. 20, 2008), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City June 1, 2001). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the IJ’s decision as the final agency determination. Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004). The applicable standards of review are well-established. See Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). Chen asserts that he is eligible for relief from removal because his wife was forced to undergo an abortion and to use an intrauterine device.

It is unnecessary to examine the IJ’s credibility findings in connection with this claim because even if such findings were flawed, remand would be futile. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 117 (2d Cir.2007). We can predict with confidence that the agency would reach the same result upon reconsideration of Chen’s claim, because, pursuant to our decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 314 (2d Cir.2007) (en banc), Chen is not per se eligible for asylum based on his wife’s alleged persecution.

Shi Liang Lin clarified that the spouse of a person who has been forced to undergo a forced abortion or sterilization may qualify for refugee status if he or she demonstrates past persecution or fear of future persecution based on “other resistance to a coercive population control program.” 494 F.3d at 314; see also 8 U.S.C. § 1101(a)(42). Before the IJ, Chen alleged that he quarreled with family planning officials after they forced his wife to submit to an abortion, and that the authorities wanted to arrest him as a result.

We do not address whether such conduct could qualify as other resistance because substantial evidence supports the IJ’s determination that Chen’s testimony with respect to the quarrel was not credible. Notably, Chen’s statements during his credible fear interview regarding the circumstances of his escape from family planning officials were inconsistent with his testimony before the IJ. Moreover, the IJ did not err in finding sufficiently reliable the record of Chen’s credible fear interview, which consisted of a verbatim transcript. See Ming Zhang v. Holder, 585 F.3d 715, 722-26 (2d Cir.2009).

For the foregoing reasons, the petition for review is DENIED. As we have 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 in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).