18-3113 Huang v. Barr BIA Thompson, IJ A087 638 531 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 24th day of June, two thousand twenty. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD J. SULLIVAN, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 WENTING HUANG, 15 Petitioner, 16 17 v. 18-3113 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Anthony P. Nicastro, 28 Assistant Director; Jonathan 29 Robbins, Senior Litigation 30 Counsel; Nello DeSimone, Law 31 Clerk, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 DC.
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 Wenting Huang, a native and citizen of the
9 People’s Republic of China, seeks review of a September 21,
10 2018, decision of the BIA affirming an October 24, 2017,
11 decision of an Immigration Judge (“IJ”) denying Huang’s
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”). In re Wenting
14 Huang, No. A087 638 531 (B.I.A. Sept. 21, 2018), aff’g No.
15 A087 638 531 (Immig. Ct. N.Y. City Oct. 24, 2017). We assume
16 the parties’ familiarity with the underlying facts and
17 procedural history.
18 Under the circumstances, we have reviewed the decision
19 of the IJ as supplemented by the BIA. See Yan Chen v.
20 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
21 standards of review are well established. See 8 U.S.C.
22 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
23 (2d Cir. 2018). 2 1 “Considering the totality of the circumstances, and all
2 relevant factors, a trier of fact may base a credibility
3 determination on the demeanor, candor, or responsiveness of
4 the applicant or witness, . . . the consistency between the
5 applicant’s or witness’s written and oral statements . . . ,
6 the internal consistency of each such statement . . . without
7 regard to whether an inconsistency, inaccuracy, or falsehood
8 goes to the heart of the applicant’s claim, or any other
9 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
10 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008).
11 “We defer . . . to an IJ’s credibility determination unless,
12 from the totality of the circumstances, it is plain that no
13 reasonable fact-finder could make such an adverse credibility
14 ruling.” Xiu Xia Lin, 534 F.3d at 167; accord Hong Fei Gao,
15 891 F.3d at 76. Substantial evidence supports the agency’s
16 determination that Huang was not credible as to his claim
17 that he was detained and beaten for attending an unregistered
18 church in China.
19 The agency reasonably relied in part on Huang’s demeanor,
20 noting that he became hesitant and unresponsive on cross-
21 examination and that he provided shifting answers when
3 1 confronted with inconsistencies. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81 n.1
3 (2d Cir. 2005) (recognizing that particular deference is
4 given to the trier of fact’s assessment of demeanor). Huang
5 did not exhaust and waives any challenge to the demeanor
6 finding; because that finding is supported by the record, it
7 stands as a valid basis for the adverse credibility
8 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
9 Shunfu Li v. Mukasey, 529 F.3d 141, 146–47 (2d Cir. 2008).
10 The demeanor finding and overall credibility
11 determination are bolstered by record inconsistencies
12 regarding whether Huang was attending a regular church
13 service or another church activity when arrested and
14 regarding the date on which he was released from detention.
15 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
16 Cir. 2006) (“We can be still more confident in our review of
17 observations about an applicant’s demeanor where, as here,
18 they are supported by specific examples of inconsistent
19 testimony.”). Huang did not compellingly explain these
20 inconsistencies. See Majidi, 430 F.3d at 80 (“A petitioner
21 must do more than offer a plausible explanation for his
4 1 inconsistent statements to secure relief; he must demonstrate
2 that a reasonable fact-finder would be compelled to credit
3 his testimony.” (internal quotation marks omitted)).
4 Having questioned Huang’s credibility, the agency
5 reasonably relied further on his failure to rehabilitate his
6 testimony with his parents’ testimony. “An applicant’s
7 failure to corroborate his or her testimony may bear on
8 credibility, because the absence of corroboration in general
9 makes an applicant unable to rehabilitate testimony that has
10 already been called into question.” Biao Yang v. Gonzales,
11 496 F.3d 268, 273 (2d Cir. 2007). When asked why he did not
12 present his parents’ testimony given that they were living in
13 New Jersey, Huang stated that he did not think it was
14 necessary because he is independent and that he did not want
15 to expose them to such an experience. The IJ did not err in
16 rejecting these explanations because his parents were
17 witnesses to his alleged persecution, having purportedly paid
18 for his release from detention and driven him from the police
19 station to the hospital upon his release, and his parents
20 were involved in their own asylum proceedings and thus did
21 not need shielding from the experience of testifying. Cf.
5 1 Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011)
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18-3113 Huang v. Barr BIA Thompson, IJ A087 638 531 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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 24th day of June, two thousand twenty. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD J. SULLIVAN, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 WENTING HUANG, 15 Petitioner, 16 17 v. 18-3113 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Anthony P. Nicastro, 28 Assistant Director; Jonathan 29 Robbins, Senior Litigation 30 Counsel; Nello DeSimone, Law 31 Clerk, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 DC.
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 Wenting Huang, a native and citizen of the
9 People’s Republic of China, seeks review of a September 21,
10 2018, decision of the BIA affirming an October 24, 2017,
11 decision of an Immigration Judge (“IJ”) denying Huang’s
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”). In re Wenting
14 Huang, No. A087 638 531 (B.I.A. Sept. 21, 2018), aff’g No.
15 A087 638 531 (Immig. Ct. N.Y. City Oct. 24, 2017). We assume
16 the parties’ familiarity with the underlying facts and
17 procedural history.
18 Under the circumstances, we have reviewed the decision
19 of the IJ as supplemented by the BIA. See Yan Chen v.
20 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
21 standards of review are well established. See 8 U.S.C.
22 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
23 (2d Cir. 2018). 2 1 “Considering the totality of the circumstances, and all
2 relevant factors, a trier of fact may base a credibility
3 determination on the demeanor, candor, or responsiveness of
4 the applicant or witness, . . . the consistency between the
5 applicant’s or witness’s written and oral statements . . . ,
6 the internal consistency of each such statement . . . without
7 regard to whether an inconsistency, inaccuracy, or falsehood
8 goes to the heart of the applicant’s claim, or any other
9 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
10 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008).
11 “We defer . . . to an IJ’s credibility determination unless,
12 from the totality of the circumstances, it is plain that no
13 reasonable fact-finder could make such an adverse credibility
14 ruling.” Xiu Xia Lin, 534 F.3d at 167; accord Hong Fei Gao,
15 891 F.3d at 76. Substantial evidence supports the agency’s
16 determination that Huang was not credible as to his claim
17 that he was detained and beaten for attending an unregistered
18 church in China.
19 The agency reasonably relied in part on Huang’s demeanor,
20 noting that he became hesitant and unresponsive on cross-
21 examination and that he provided shifting answers when
3 1 confronted with inconsistencies. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81 n.1
3 (2d Cir. 2005) (recognizing that particular deference is
4 given to the trier of fact’s assessment of demeanor). Huang
5 did not exhaust and waives any challenge to the demeanor
6 finding; because that finding is supported by the record, it
7 stands as a valid basis for the adverse credibility
8 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
9 Shunfu Li v. Mukasey, 529 F.3d 141, 146–47 (2d Cir. 2008).
10 The demeanor finding and overall credibility
11 determination are bolstered by record inconsistencies
12 regarding whether Huang was attending a regular church
13 service or another church activity when arrested and
14 regarding the date on which he was released from detention.
15 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
16 Cir. 2006) (“We can be still more confident in our review of
17 observations about an applicant’s demeanor where, as here,
18 they are supported by specific examples of inconsistent
19 testimony.”). Huang did not compellingly explain these
20 inconsistencies. See Majidi, 430 F.3d at 80 (“A petitioner
21 must do more than offer a plausible explanation for his
4 1 inconsistent statements to secure relief; he must demonstrate
2 that a reasonable fact-finder would be compelled to credit
3 his testimony.” (internal quotation marks omitted)).
4 Having questioned Huang’s credibility, the agency
5 reasonably relied further on his failure to rehabilitate his
6 testimony with his parents’ testimony. “An applicant’s
7 failure to corroborate his or her testimony may bear on
8 credibility, because the absence of corroboration in general
9 makes an applicant unable to rehabilitate testimony that has
10 already been called into question.” Biao Yang v. Gonzales,
11 496 F.3d 268, 273 (2d Cir. 2007). When asked why he did not
12 present his parents’ testimony given that they were living in
13 New Jersey, Huang stated that he did not think it was
14 necessary because he is independent and that he did not want
15 to expose them to such an experience. The IJ did not err in
16 rejecting these explanations because his parents were
17 witnesses to his alleged persecution, having purportedly paid
18 for his release from detention and driven him from the police
19 station to the hospital upon his release, and his parents
20 were involved in their own asylum proceedings and thus did
21 not need shielding from the experience of testifying. Cf.
5 1 Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011)
2 (finding it reasonable to reject an applicant’s argument that
3 her husband was unavailable to testify on her behalf in asylum
4 proceedings where her husband “had a common interest in her
5 presenting the strongest possible case” and an “incentive to
6 appear on her behalf”).
7 Given the agency’s demeanor, inconsistency, and
8 corroboration findings, its adverse credibility determination
9 is supported by substantial evidence. See 8 U.S.C.
10 § 1158(b)(1)(B)(iii). That determination is dispositive of
11 asylum, withholding of removal, and CAT relief because all
12 three claims are based on the same factual predicate. See
13 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
14 There is no merit to Huang’s argument that the BIA
15 violated due process by ignoring his argument that his
16 father’s letter was incorrectly translated. The BIA
17 considered that argument and reasonably found it unpersuasive
18 given Huang’s failure to submit a corrected translation. See
19 Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (“To
20 establish a violation of due process, an alien must show that
21 []he was denied a full and fair opportunity to present h[is]
6 1 claims or that [he was] otherwise deprived . . . of
2 fundamental fairness.” (internal quotation marks omitted)).
3 Huang also fails to establish the requisite prejudice
4 because, even if his father’s letter were translated so that
5 it was consistent with Huang’s other evidence as to the date
6 of Huang’s release from detention, Huang testified
7 inconsistently on that issue and the IJ made other findings
8 that supported the adverse credibility determination. See
9 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
10 (“Parties claiming denial of due process in immigration cases
11 must, in order to prevail, allege some cognizable prejudice
12 fairly attributable to the challenged process.” (internal
13 quotation marks omitted)).
14 For the foregoing reasons, the petition for review is
15 DENIED. All pending motions and applications are DENIED and
16 stays VACATED.
17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court