Meizi Huang v. Holder , 493 F. App'x 220 ( 2012 )

12-194
Huang v. Holder
BIA
Vomacka, IJ
A095 833 981
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of August, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 MEIZI HUANG,
14 Petitioner,
15
16 v. 12-194
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jie Han, New York, New Yor
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Richard M. Evans,
27 Assistant Director, Christina B.
28 Parascandola, Trial Attorney, Shuchi
1 Parikh, Law Clerk, Office of
2 Immigration Litigation, United States
3 Department of Justice, Washington,
4 D.C.
56 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Meizi Huang, a native and citizen of the People’s
11 Republic of China, seeks review of a December 14, 2011,
12 order of the BIA, affirming the September 18, 2009, decision
13 of Immigration Judge (“IJ”) Alan A. Vomacka, which denied
14 her application for asylum, withholding of removal, and
15 relief under the Convention Against Torture (“CAT”).
16 In re Meizi Huang, No. A095 833 981 (B.I.A. Dec. 14, 2011),
17 aff’g No. A095 833 981 (Immig. Ct. N.Y. City Sept. 18,
18 2009). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 As a preliminary matter, because Huang did not
21 challenge the IJ’s pretermission of her asylum application
22 before either the BIA or this Court, she has abandoned that
23 claim. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d
24 Cir. 2007) (per curiam) (deeming arguments not raised before
25 the BIA and this Court abandoned).
2
1 When, as here, the BIA affirms the IJ’s decision in
2 some respects, but not others, we review the IJ’s decision
3 as modified by the BIA decision, i.e., minus the arguments
4 for denying relief that were rejected by the BIA. See Xue
5 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
6 Cir. 2005). The applicable standards of review are well-
7 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
8 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
9 In pre-REAL ID Act cases, such as this one,
10 inconsistencies that form the basis of an adverse
11 credibility determination must “bear a legitimate nexus” to
12 the applicant’s claim of persecution and be “substantial”
13 when measured against the record as a whole.
14 Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003);
15 Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006). An IJ,
16 however, may rely on the cumulative effect of even minor
17 inconsistencies. See Tu Lin v. Gonzales, 446 F.3d 395, 402
18 (2d Cir. 2006); Liang Chen v. U.S. Attorney Gen., 454 F.3d
19 103, 106-107 (2d Cir. 2006) (per curiam).
20 Substantial evidence supports the agency’s conclusion
21 that Huang did not testify credibly regarding her claim that
22 Chinese family planning officials forcibly aborted two of
3
1 her pregnancies. In finding Huang not credible, the agency
2 reasonably relied on Huang’s failure to provide a consistent
3 account of when her two abortion certificates had been
4 issued, and her inability to confidently recall whether she
5 had been anesthetized during her first alleged abortion
6 procedure. This information related to the heart of Huang’s
7 claim. See Secaida-Rosales, 331 F.3d at 307-08; Pavlova,
8 441 F.3d at 90.
9 In addition, the consular investigation report that the
10 government submitted called into question the authenticity
11 of Huang’s abortion certificates, and thus further
12 undermined the credibility of Huang’s claim that she had
13 undergone two forced abortions. Indeed, as the agency
14 found, while Haung’s abortion certificates indicated that
15 they had been issued in 2004 and that Huang’s abortion
16 procedures had been performed in 1986 and 1989, the consular
17 investigation report indicated that the hospital listed on
18 the abortion certificates was “not allowed to issue a
19 certificate for an operation conducted years ago,” and that
20 the doctor who allegedly signed the certificates stated that
21 she “she had never issued any [such] certificate[s].”
22 Furthermore, Huang’s challenge to the reliability of the
4
1 consular investigation report is unavailing, as that report
2 bears sufficient indicia of reliability to support the
3 agency’s adverse credibility determination, such as the
4 identity and qualifications of the investigator, the
5 objective and extent of the investigation, and the methods
6 the investigator used to verify the authenticity of Huang’s
7 abortion certificates. See Zhen Nan Lin v. U.S. Dep’t of
8 Justice, 459 F.3d 255, 271 (2d Cir.#2006).
9 Finally, contrary to Huang’s argument, the record does
10 not compel the conclusion that the manner in which the
11 investigator conducted her inquiry disclosed to Chinese
12 authorities Huang’s identity or the nature of the
13 investigation. See 8 C.F.R. § 208.6; see also Zhen Nan Lin,
14 459 F.3d at 262. Indeed, the record indicates that the
15 investigator was aware of the confidentiality provisions
16 under 8 C.F.R. § 208.6, and, as the IJ noted, that the
17 government took steps to safeguard Huang’s identity by
18 redacting her name from the documents that were transmitted
19 to its investigative office in China. See 8 C.F.R. § 208.6;
20 Zhen Nan Lin, 459 F.3d at 263.
21 Thus, the agency’s denial of Huang’s application for
22 withholding of removal and CAT relief based on her claim
23 that she suffered past harm and feared future harm on
5
1 account of her alleged violation of China’s family planning
2 policy was not in error, as both claims shared the same
3 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156
4 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
6