Hai He Huang v. Lynch

14-4711
Huang v. Lynch
BIA
Cheng, IJ
A087 638 581
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 29th day of August, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 HAI HE HUANG,
14 Petitioner,
15
16 v. 14-4711
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Henry Zhang, Zhang & Associates,
24 P.C., New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal
27 Deputy Assistant Attorney
28 General; Paul Fiorino, Senior
29 Litigation Counsel; Judith R.
30 O’Sullivan, Trial Attorney,
31 Office of Immigration Litigation,
1 United States Department of
2 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 is
7 DENIED.
8 Petitioner Hai He Huang, a native and citizen of China,
9 seeks review of a December 3, 2014, decision of the BIA,
10 affirming a December 27, 2012, decision of an Immigration Judge
11 (“IJ”) denying Huang’s application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Hai He Huang, No. A087 638 581 (B.I.A. Dec. 3,
14 2014), aff’g No. A087 638 581 (Immig. Ct. N.Y. City Dec. 27,
15 2012). We assume the parties’ familiarity with the underlying
16 facts and procedural history in this case.
17 Under the circumstances of this case, we have reviewed the
18 IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S.
19 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
20 Accordingly, we review only the agency’s adverse credibility
21 determination because the BIA explicitly declined to reach the
22 IJ’s alternative burden finding. Id. The standards of review
23 are well established. See Xiu Xia Lin v. Mukasey, 534 F.3d 162,
24 165 (2d Cir. 2008).
2
1 The agency may, “[c]onsidering the totality of the
2 circumstances,” base a credibility finding on an asylum
3 applicant’s “demeanor, candor, or responsiveness,” the
4 plausibility of his account, and inconsistencies in his
5 statements and other record evidence “without regard to
6 whether” those inconsistencies go “to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
8 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility
9 determination unless, from the totality of the circumstances,
10 it is plain that no reasonable fact-finder could make such an
11 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
12 Because “demeanor is paradigmatically the sort of evidence that
13 a fact-finder is best positioned to evaluate,” Li Zu Guan v.
14 INS, 453 F.3d 129, 140 (2d Cir. 2006), “[w]e give particular
15 deference to credibility determinations that are based on the
16 adjudicator’s observation of the applicant’s demeanor,” Jin
17 Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005).
18 Further, “[a] petitioner must do more than offer a plausible
19 explanation for his inconsistent statements to secure relief;
20 he must demonstrate that a reasonable fact-finder would be
21 compelled to credit his testimony.” Majidi v. Gonzales, 430
22 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and
3
1 citations omitted) (emphasis in original). Substantial
2 evidence supports the agency’s determination that Huang was not
3 credible.
4 The agency reasonably relied on Huang’s demeanor. The
5 record supports the agency’s conclusion that Huang gave vague
6 and nonresponsive answers at times during his testimony. See
7 Jin Chen, 426 F.3d at 113. Moreover, we can be confident of
8 the demeanor finding because the agency’s examples of
9 inconsistent testimony bolster that finding and support the
10 adverse credibility determination as a whole. See Li Hua Lin
11 v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We
12 can be still more confident in our review of observations about
13 an applicant’s demeanor where, as here, they are supported by
14 specific examples of inconsistent testimony.”); see Xiu Xia
15 Lin, 534 F.3d at 166-67. First, Huang initially omitted
16 testimony about his detention on direct and cross-examination,
17 including that he was forced to stand and face a wall for hours
18 during his detention only when questioned by the IJ. See Xiu
19 Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission
20 are, . . . functionally equivalent.). And, although he
21 testified that he was in a cell with three other people, he
22 omitted that fact from his asylum application. The agency also
4
1 reasonably relied on an additional inconsistency in Huang’s
2 documentary evidence, noting that the household registration
3 did not list any employment despite the fact that Huang
4 testified and stated in his asylum application that he had
5 operated a clothing manufacturing business from 1995 to 2007.
6 The agency was not required to accept Huang’s explanations for
7 these omissions and inconsistencies because his explanations
8 were themselves inconsistent and did not resolve the problems.
9 See Majidi, 430 F.3d at 80.
10 Apart from these findings, all of which support the adverse
11 credibility determination, the agency did make one problematic
12 finding. The IJ found Huang nonresponsive when asked how long
13 he had attended church in China; Huang responded that he left
14 China in September 2008. In his brief, Huang argues that the
15 IJ mischaracterized his testimony. Although Huang’s initial
16 response can be read as nonresponsive because he did not respond
17 with a specific range of dates, the record when read as a whole
18 does not support this inconsistency finding. Nevertheless,
19 even absent this finding, the IJ’s adverse credibility
20 determination is supported by the demeanor and inconsistency
21 findings noted above. See Xiao Ji Chen v. U.S. Dep’t of
22 Justice, 471 F.3d 315, 339 (2d Cir. 2006) (holding that remand
5
1 is futile when we can “confidently predict” that the agency
2 would reach the same decision absent any errors).
3 Given the demeanor and inconsistency findings,
4 substantial evidence supports the agency’s adverse credibility
5 determination. See Xiu Xia Lin, 534 F.3d at 165-66. That
6 finding is dispositive of asylum, withholding of removal, and
7 CAT relief because all three claims are based on the same factual
8 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
9 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
6