Bin Huang v. Lynch ( 2016 )

13-2156
Huang v. Lynch
BIA
Poczter, IJ
A200 236 668
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 3rd day of March, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 BIN HUANG,
14 Petitioner,
15
16 v. 13-2156
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Mona Liza F. Lao, New York, New
24 York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; John W. Blakeley,
28 Acting Assistant Director; Francis
29 W. Fraser, Senior Litigation
30 Counsel; Office of Immigration
1 Litigation, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Bin Huang, a native and citizen of the
9 People’s Republic of China, seeks review of an April 30,
10 2013, decision of the BIA affirming the August 6, 2012,
11 decision of an Immigration Judge (“IJ”), which denied his
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”), and his motion
14 for a continuance. In re Bin Huang, No. A200 236 668
15 (B.I.A. Apr. 30, 2013), aff’g No. A200 236 668 (Immig. Ct.
16 N.Y. City Aug. 6, 2012). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this
18 case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA. Yan Chen v.
21 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
22 standards of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
24 510, 513 (2d Cir. 2009).
2
1 I. Adverse Credibility Determination
2 For asylum applications such as Huang’s, which are
3 governed by the REAL ID Act, the agency may, considering the
4 totality of the circumstances, base a credibility finding on
5 an asylum applicant’s “demeanor, candor, or responsiveness,”
6 the plausibility of his account, and inconsistencies in his
7 statements, without regard to whether they go “to the heart
8 of the applicant’s claim.” See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
10 167 (2d Cir. 2008).
11 The agency’s adverse credibility finding is supported
12 by substantial evidence. The IJ properly relied on Huang’s
13 inconsistencies and implausible testimony to find a lack of
14 credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
15 Lin, 534 F.3d at 167.
16 Huang testified that Chinese police detained and beat
17 him because he worshiped at a house church, and that the
18 beating was so severe that he was unable to work for the
19 next year. However, he did not mention this inability to
20 work in his asylum application, and it is not mentioned in
21 the letter his mother wrote in support of his application.
22 Huang further testified that police officers visited his
3
1 parents’ house every two or three months looking for him,
2 but neither his application nor his mother’s letter
3 indicates that officers visited more than once.
4 To explain these discrepancies, Huang testified that he
5 did not think that his inability to work for a year was
6 important when preparing his application, and that he did
7 not tell his parents that he was unable to work. He also
8 testified that he thought his mother’s letter, which stated
9 that police officers had come looking for him, was
10 sufficiently detailed. None of these explanations compels a
11 reasonable fact-finder to credit it. Majidi v. Gonzales,
12 430 F.3d 77, 80-81 (2d Cir. 2005).
13 The IJ similarly did not err in finding implausible
14 Huang’s testimony that he never sought medical treatment for
15 injuries so severe that he was allegedly unable to work for
16 a year after they were inflicted. This finding is “tethered
17 to record evidence” and based on common sense, and therefore
18 we do not disturb it. Siewe v. Gonzales, 480 F.3d 160, 168-
19 69 (2d Cir. 2007).
20 The IJ found that Huang’s sparse corroborating evidence
21 did not rehabilitate his incredible testimony. Biao Yang v.
22 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ also
4
1 found that Huang had failed to provide reasonably available
2 evidence regarding his religious activities, both in China
3 and in the United States, most importantly testimony or an
4 affidavit from his wife. These findings were supported by
5 substantial evidence. See 8 U.S.C. § 1252(b)(4); Xiao Ji
6 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341, 342 (2d
7 Cir. 2006); Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d
8 Cir. 2011). Huang argues that a failure to corroborate, on
9 its own, may not be the basis of an adverse credibility
10 determination, Xiao Ji Chen, 471 F.3d at 341, but here the
11 IJ found Huang incredible not solely on that basis.
12 Because the only evidence of a threat to Huang’s life
13 or freedom depended upon his credibility, the adverse
14 credibility determination in this case necessarily precludes
15 success on his claims for asylum, withholding of removal,
16 and relief under the CAT. See Paul v. Gonzales, 444 F.3d
17 148, 156-57 (2d Cir. 2006).
18 II. Denial of Continuance
19 We review the agency’s denial of a continuance for
20 abuse of discretion. Sanusi v. Gonzales, 445 F.3d 193, 199
21 (2d Cir. 2006). An abuse of discretion occurs “if (1) [a]
22 decision rests on an error of law (such as the application
23 of the wrong legal principle) or a clearly erroneous factual
5
1 finding[;] or (2) [a] decision–though not necessarily the
2 product of a legal error or a clearly erroneous factual
3 finding–cannot be located within the range of permissible
4 decisions.” Morgan v. Gonzales, 445 F.3d 548, 551-52 (2d
5 Cir. 2006). The IJ did not abuse her discretion in denying
6 Huang’s motion for a continuance because Huang had
7 sufficient time before his merits hearing to procure
8 witnesses. Cf. Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d
9 Cir. 2009) (“[T]he alien bears the ultimate burden of
10 introducing [corroborating] evidence without prompting from
11 the IJ”).
12 For the foregoing reasons, the petition for review is
13 DENIED. Any pending request for oral argument in this
14 petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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