United States v. Brian Moore

United States Court of Appeals
For the Eighth Circuit
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No. 13-1426
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Xin Yang
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 16, 2013
Filed: April 4, 2014 (Corrected April 4, 2014)
[Published]
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Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.
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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

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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.
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
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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
question, and Yang testified that the friend “was physically beaten and to the point
where he got, was tortured.” On cross exam, government counsel asked a series of
questions probing the depth of Yang’s religious knowledge and convictions. When
Yang answered incorrectly, counsel objected, blaming the interpreter’s translations.
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The IJ carefully discussed each objection with the attorneys and the interpreter. For
example, Yang’s attorney objected to the interpreter’s translation of “who brought the
10 commandments down from the mountain.” When it appeared to the IJ that Yang
had not understood the translator, the question was asked again. Yang incorrectly
answered, “Jesus.”
“Common sense informs us that evidence of improper translation may include
direct evidence of mistranslated words, evidence that a witness is unable to
understand a translator, or unresponsive answers from a witness.” Tun, 485 F.3d at
1030. After careful review of the transcript, we agree with the BIA that Yang did not
receive incompetent translation services at the hearing. The IJ carefully addressed
each objection to ensure that words were not mistranslated and that Yang was able
to understand the questions as translated from English into Mandarin. Yang’s
testimony, while ultimately unpersuasive, was not illogical or unresponsive,
confirming the BIA’s conclusion that she “was allowed to fully present her claim.”
As in Meas v. Ashcroft, Yang’s “testimony as a whole was understandable and
coherent . . . more important, [Yang] has not explained how she was prejudiced by
the alleged deficiencies of the translator.” 363 F.3d 729, 730 (8th Cir. 2004). Given
the suspicious timing of Yang’s alleged conversion to Christianity and her lack of
evidence proving that she was a member of the St. Louis Chinese Baptist Church,
minor translation errors relating to Baptist religious practices or the Bible or the
harassment of Yang’s Christian friends in China would not undermine the IJ’s
decision. At best, Yang has demonstrated “isolated instances of translation errors”
that “are not generally a basis for relief if the transcript of a petitioner’s testimony as
a whole is understandable and coherent.” Tun, 485 F.3d at 1030 (quotation marks
omitted). Unlike the administrative record we considered in Tun, Yang does not
allege, and the record does not reflect, any error other than these translation
disagreements. See id. at 1031.
Accordingly, we deny Xin Yang’s petition for review.
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