Hua Sheng Huang v. Holder

11-4625
Huang v. Holder
BIA
Balasquide, IJ
A087 441 732
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 10th day of June, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 HUA SHENG HUANG,
15 Petitioner,
16
17 v. 11-4625
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Gerald Karikari, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Terri J. Scadron,
28 Assistant Director; Aaron D. Nelson,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington D.C.
33
34
35
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 Hua Sheng Huang, a native and citizen of the
6 People’s Republic of China, seeks review of an October 12,
7 2011, decision of the BIA affirming the January 28, 2010,
8 decision of Immigration Judge (“IJ”) Javier Balasquide,
9 denying his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Hua Sheng Huang, No. A087 441 732 (B.I.A. Oct. 12, 2011),
12 aff’g No. A087 441 732 (Immig. Ct. N.Y. City Jan. 28, 2010).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case we have reviewed
16 both the IJ’s and BIA’s decisions “for the sake of
17 completeness.” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d
18 Cir. 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
20 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
21 For applications such as Huang’s, governed by the
22 amendments made to the Immigration and Nationality Act by
23 the REAL ID Act of 2005, the agency may, considering the
2
1 totality of the circumstances, base a credibility finding on
2 an applicant’s “demeanor, candor, or responsiveness,” the
3 plausibility of his account, and inconsistencies in his
4 statements, without regard to whether they go “to the heart
5 of the applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii);
6 see Xiu Xia Lin, 534 F.3d at 167. We “defer to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia
10 Lin, 534 F.3d at 167.
11 In finding Huang not credible, the agency reasonably
12 relied on an inconsistency between Huang’s asylum
13 application, in which he states he was arrested and detained
14 by Chinese officials in September 2007, and his testimony
15 that the same arrest occurred in October 2007, testimony he
16 changed to September 2007.1 See 8 U.S.C.
17 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The IJ
1
The BIA opinion states that Huang’s testimony placed
the event in October 2008. We assume this is an inadvertent
error by the BIA because the record is clear that Huang left
the PRC in December 2007. The opinion of the IJ states:
“The respondent indicated initially that the problem
occurred on October 30, 2007. When he was questioned by
his attorney what happened on October 30, 2007, the
respondent amended the answer and indicated that it was
September 30, 2007, as the date that he had the problems.”
3
1 was not required to credit Huang’s varied explanations for
2 this inconsistency, that he did not hear the question and
3 that he confused the date of his arrest with the date that
4 he was smuggled out of China. The agency need not credit an
5 applicant’s explanations for inconsistent testimony unless
6 those explanations would compel a reasonable fact-finder to
7 do so. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
8 2005).
9 The agency also reasonably relied on Huang’s
10 inconsistent account of when he joined a U.S. church because
11 Huang initially testified that he joined in early 2008, but
12 when confronted with a conflicting document from the church
13 stating that he began attending in August 2008, Huang
14 claimed that he began attending church in early 2008, but
15 did not sign the registration book until November 2008. See
16 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
17 The IJ was not required to credit this explanation,
18 particularly because Huang later gave inconsistent testimony
19 that he began signing the registration book in November
20 2008. See Majidi, 430 F.3d at 80-81.
21 Having already questioned Huang’s credibility, the
22 agency reasonably relied on his failure to provide
23 sufficient evidence from church members to corroborate his
4
1 attendance in order to further support its determination.
2 See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
3 (an asylum applicant’s failure to corroborate his testimony
4 may bear on his credibility “because the absence of
5 corroboration in general makes an applicant unable to
6 rehabilitate testimony that has already been called into
7 question”). Huang argues that the IJ erred by declining to
8 credit his witness’s testimony because of his witness’s lack
9 of knowledge of Christianity. However, the IJ’s decision
10 was properly based on the witness’s lack of knowledge of
11 Huang’s religious activities, not a lack of knowledge of
12 Christianity. The weight afforded to an applicant’s
13 evidence in immigration proceedings lies largely within the
14 discretion of the IJ. See Xiao Ji Chen v. U.S. Dep’t of
15 Justice, 471 F.3d 315, 342 (2d Cir. 2006).
16 Huang’s additional argument, that the IJ erred in
17 requiring church records that he lacked access to, is
18 unavailing. When a lack of corroboration is cited as an
19 additional basis for an adverse credibility determination
20 after the credibility of testimony has been called into
21 question, an IJ is not required to make a finding as to the
22 availability of additional evidence. See id. at 341.
23
5
1 Given the inconsistencies, inconsistent explanations,
2 and lack of corroborating evidence, a totality of the
3 circumstances supports the agency’s adverse credibility
4 determination. See 8 U.S.C. §§ 1158(b)(1)(B)(iii); Xiu Xia
5 Lin, 534 F.3d at 167. Because the only evidence of a threat
6 to Huang’s life or freedom depended upon his credibility,
7 the adverse credibility determination in this case
8 necessarily precludes success on his claims for asylum,
9 withholding of removal, and CAT relief. See Paul v.
10 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
11 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). We
12 do not reach Huang’s argument that he will be tortured if he
13 returns to China because of his illegal departure from that
14 country, as Huang did not raise that argument before the
15 BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
16 122 (2d Cir. 2007).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, the pending motion
19 for a stay of removal in this petition is DENIED as moot.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
6