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Yang v. Holder

United States Court of Appeals, Eighth Circuit

April 4, 2014

Xin Yang, Petitioner
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent

Submitted December 16, 2013

Petition for Review of an Order of the Board of Immigration Appeals.

For Xin Yang, Petitioner: Zhou Min Wang, Law Office of Zhou Wang, New York, NY.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Karen Yolanda Drummond, Carl H. McIntyre, Anthony John Messuri, Katherine Ann Smith, U.S. Department of Justice, Ben Franklin Station, Washington, DC.

Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.

OPINION

PER CURIAM.

Xin Yang, a citizen of China, entered the United States in 1999 and received a Notice to Appear for removal proceedings in August 2009. See 8 U.S.C. § § 1182(a)(5)(A)(i), (a)(6)(A)(i), (a)(7)(A)(i)(I). In response, Yang applied for asylum, withholding of removal, and relief under the Convention Against Torture, claiming a well-founded fear of religious persecution if she is removed to China because she recently converted to Christianity and had joined the St. Louis Chinese Baptist Church in August 2009. The Immigration Judge (" IJ" ) denied relief after a hearing at which Yang was the sole witness. The Board of Immigration Appeals (" BIA" ) affirmed. Yang petitions for judicial review of the BIA's final order, arguing the IJ violated her right to due process because the Mandarin Chinese interpreter provided at the hearing was incompetent. We deny the petition for review.

Page 994

I.

At the hearing, to support her claim of church membership, Yang provided a letter from a friend stating that Yang is " eager to become a Christian." She provided no documentation from the St. Louis Chinese Baptist Church, explaining that it did not keep records and that both the letter's author and the minister had moved away. To support her claim that she feared religious persecution and torture if returned to China, Yang described the experiences of several Christian friends who were questioned, detained, or beaten by government officials in China, in particular, the experience of one friend who was detained, beaten, and interrogated after he was found in possession of a Bible Yang had sent him.

The IJ found that Yang's application for asylum was time-barred; the IJ denied withholding of removal or relief under the Convention Against Torture because Yang failed to demonstrate that she was a member of any Christian church or had converted to Christianity and therefore could not demonstrate that she would be persecuted or tortured in China based on her religion. See § § 1158(a)(2)(B) (asylum) and 1231(b)(3) (withholding of removal); 8 C.F.R. § 1208.16(c)(2) (Convention Against Torture). The BIA concluded that the IJ's decision " is supported by the record." Reviewing the hearing transcript in detail, the BIA then rejected Yang's claim that she was denied a competent interpreter. The IJ " went to extraordinary lengths to assure the proper translations in this case," the BIA reasoned, and it was clear that Yang " was allowed to fully present her claim" because " all parties understood to what [she] was referring" in the instances of translation error alleged by Yang on appeal.

II.

An applicant for relief from removal is entitled to a fair hearing. Yang argues the interpreter services she received at the hearing were so inadequate that she was denied the fair hearing that due process requires. This right " would be meaningless if an immigrant could not understand the proceedings, so the BIA recognizes that due process rights necessarily encompass the right to competent translation." Tun v. Gonzales, 485 F.3d 1014, 1025 (8th Cir. 2007). To prevail on this claim, Yang " must demonstrate both a fundamental procedural error and that the error resulted in prejudice, that is, a showing that the outcome of the proceeding may well have been different had there not been any procedural irregularities." Zheng v. Holder, 698 F.3d 710, 714 (8th Cir. 2012) (quotation marks omitted). Reviewing these issues de novo, we conclude Yang failed to prove either a fundamental procedural error or prejudice.

Numerous times during Yang's testimony, her attorney challenged words chosen by the Mandarin interpreter. For example, during Yang's direct exam, the interpreter initially reported the name of the church Yang claimed to attend as the " St. Louis Asian Presbyterian Church." When Counsel objected, the IJ and the interpreter accepted Yang's counsel's interpretation, the " St. Louis Chinese Baptist Church." Later, when Yang testified about the treatment of a friend found in possession of an American Bible Yang had sent him, counsel objected that the interpreter translated " harassed and beaten," instead of " tortured." The interpreter refused to amend his interpretation of Yang's initial response, the IJ permitted counsel to restate the ...


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