Jiang Bo Huang v. Holder

10-539-ag
Huang v. Holder
BIA
Abrams, IJ
A099 538 610
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 18th day of October, two thousand eleven.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 JIANG BO HUANG,
14 Petitioner,
15
16 v. 10-539-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Veronica Frösen, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Anthony P. Nicastro, Senior
27 Litigation Counsel; Bernard A.
28 Joseph, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jiang Bo Huang, a native and citizen of
6 China, seeks review of a January 26, 2010, order of the BIA
7 affirming the July 10, 2008, decision of Immigration Judge
8 (“IJ”) Steven R. Abrams denying Huang’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Jiang Bo Huang,
11 No. A099 538 610 (B.I.A. Jan. 26, 2010), aff’g No. A099 538
12 610 (Immig. Ct. N.Y. City July 10, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA’s decision.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 Substantial evidence supports the agency’s adverse
22 credibility determination. The IJ noted a significant
23 discrepancy between Huang’s testimony and letters from his
2
1 mother and cousin. While Huang argues that his testimony
2 might have been consistent with the letters for various
3 reasons, his explanations do not compel the conclusion that
4 there was no discrepancy. See Majidi v. Gonzales, 430 F.3d
5 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
6 a plausible explanation for his inconsistent statements to
7 secure relief; he must demonstrate that a reasonable fact-
8 finder would be compelled to credit his testimony.”
9 (internal quotation marks omitted)). Accordingly, because
10 the record supports the IJ’s finding that there was a
11 significant discrepancy, the IJ reasonably relied on it in
12 making an adverse credibility determination. See Xiu Xia Lin
13 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (noting that,
14 under the REAL ID Act, “an IJ may rely on any inconsistency
15 or omission in making an adverse credibility determination
16 as long as the ‘totality of the circumstances’ establishes
17 that an asylum applicant is not credible.” (quoting 8 U.S.C.
18 § 1158(b)(1)(B)(iii))).
19 Contrary to his contention that the IJ failed to
20 sufficiently develop the record, Huang was confronted with
21 the discrepancy between the letters and his testimony during
22 his cross-examination and thus had an opportunity to clarify
23 his testimony. Cf. Zhi Wei Pang v. Bureau of Citizenship &
3
1 Immigration Servs., 448 F.3d 102, 107 (2d Cir. 2006)
2 (explaining, in a pre-REAL ID Act case, that an adverse
3 credibility finding may be overturned if an applicant is not
4 given an opportunity to explain minor inconsistencies in his
5 testimony). The IJ found that when so confronted, Huang’s
6 demeanor suggested that he was caught in a lie. We defer to
7 the IJ’s assessment of demeanor, as he had “the unique
8 advantage . . . of having heard directly from the
9 applicant.” Majidi, 430 at 81 n.1 (internal quotation
10 marks omitted). Moreover, we can be confident with the IJ’s
11 demeanor finding in this case because it was linked to
12 Huang’s lack of explanation for the discrepancy between his
13 testimony and documentary evidence. See Li Hua Lin v. U.S.
14 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can
15 be still more confident in our review of observations about
16 an applicant’s demeanor where, as here, they are supported
17 by specific examples of inconsistent testimony.”).
18 Having found that Huang’s testimony had been called
19 into question by the discrepancy between his testimony and
20 the letters and his demeanor, the IJ reasonably expected
21 Huang to provide corroborative materials to rehabilitate his
22 testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
23 Cir. 2007). The IJ reasonably concluded that Huang did not
4
1 provide sufficient corroborating evidence. See Xiao Ji Chen
2 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
3 (stating that the weight afforded to an applicant’s evidence
4 lies largely within the discretion of the IJ); 8 U.S.C.
5 § 1252(b)(4) (“No court shall reverse a determination made
6 by a trier of fact with respect to the availability of
7 corroborating evidence . . . unless the court finds . . .
8 that a reasonable trier of fact is compelled to conclude
9 that such corroborating evidence is unavailable.”).
10 Together, the significant discrepancy between Huang’s
11 testimony and the letters, the IJ’s assessment of his
12 demeanor, and his failure to provide corroborating evidence
13 provide substantial evidence in support of the adverse
14 credibility determination. See 8 U.S.C.
15 § 1158(b)(1)(B)(iii). Thus, because Huang’s applications
16 for asylum, withholding of removal, and CAT relief shared
17 the same common factual basis, the agency did not err in
18 denying all forms of relief based on the adverse credibility
19 determination. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
20 Cir. 2006).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
5
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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