15-2191 Huang v. Boente BIA Balasquide, IJ A205 034 012
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 2nd day of February, two thousand sixteen. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 DEBRA ANN LIVINGSTON, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 YIJING HUANG, 14 Petitioner, 15 16 v. 15-2191 17 NAC 18 DANA J. BOENTE, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________ 22 23 FOR PETITIONER: James A. Lombardi, Law Office of James 24 A. Lombardi, P.C., New York, N.Y. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Anthony
* The Clerk of Court is respectfully requested to amend the caption to conform to the above. 1 P. Nicastro, Assistant Director; S. 2 Nicole Nardone, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a Board
8 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
9 ADJUDGED, AND DECREED that the petition for review is DENIED.
10 Petitioner Yijing Huang, a native and citizen of China,
11 seeks review of a June 16, 2015, decision of the BIA affirming
12 a February 27, 2014, decision of an Immigration Judge (“IJ”)
13 denying Huang’s application for asylum, withholding of removal,
14 and relief under the Convention Against Torture (“CAT”). In re
15 Yijing Huang, No. A205 034 012 (B.I.A. June 16, 2015), aff’g
16 No. A205 034 012 (Immig. Ct. N.Y. City Feb. 27, 2014). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have reviewed the
20 IJ’s decision as modified and supplemented by the BIA. See Xue
21 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
22 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
23 The applicable standards of review are well established. 8
24 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
25 165-66 (2d Cir. 2008).
26 For asylum applications like Huang’s, governed by the REAL 2 1 ID Act, the agency may, “[c]onsidering the totality of the
2 circumstances,” base a credibility finding on an applicant’s
3 “demeanor, candor, or responsiveness,” the plausibility of his
4 account, and inconsistencies in his statements and other record
5 evidence “without regard to whether” those inconsistencies go
6 “to the heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “[E]ven
8 where an IJ relies on discrepancies or lacunae that, if taken
9 separately, concern matters collateral or ancillary to the
10 claim, the cumulative effect may nevertheless be deemed
11 consequential by the fact-finder.” Tu Lin v. Gonzales, 446 F.3d
12 395, 402 (2d Cir. 2006) (internal quotation marks and citation
13 omitted). “We defer . . . to an IJ’s credibility determination
14 unless . . . it is plain that no reasonable fact-finder could
15 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
16 at 167. Further, “[a] petitioner must do more than offer a
17 plausible explanation for his inconsistent statements to secure
18 relief; he must demonstrate that a reasonable fact-finder would
19 be compelled to credit his testimony.” Majidi v. Gonzales, 430
20 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted).
21 For the following reasons, we conclude that substantial evidence
22 supports the agency’s determination that Huang was not credible.
23 The agency reasonably based the credibility determination 3 1 on inconsistencies among Huang’s asylum interview statements,
2 application, and testimony concerning the circumstances of his
3 arrest and detention. See Xiu Xia Lin, 534 F.3d at 163-64.
4 First, Huang stated during his asylum interview that the
5 police arrested him around 7:30pm, about a half an hour after
6 his underground church service had begun. However, he testified
7 that the service began at 5:00pm and that he was arrested at
8 6:00pm. When confronted with this discrepancy, Huang was
9 initially nonresponsive and then stated that he could not
10 remember his statement to the asylum officer. This response did
11 not explain the inconsistency, and the agency was not compelled
12 to accept it. Majidi, 430 F.3d at 80.
13 Second, Huang stated during his interview that his
14 congregation was in the middle of singing a hymn when the police
15 arrived. However, he testified and stated in his application
16 that the police entered in the middle of a Bible reading. When
17 confronted with this discrepancy, Huang was initially
18 nonresponsive and then stated that he could not remember his
19 interview statement. This response did not explain the
20 inconsistency, and the agency was not compelled to accept it.
21 Majidi, 430 F.3d at 80.
22 Third, Huang stated during his interview that his second
23 interrogation lasted “only” 10 minutes. However, he testified 4 1 that this interrogation lasted “about 30 minutes.” The agency
2 was not compelled to accept Huang’s explanations for this
3 inconsistency. Majidi, 430 F.3d at 80.
4 Given the foregoing inconsistencies and the agency’s proper
5 rejection of Huang’s corresponding explanations, the adverse
6 credibility determination is supported by substantial evidence.
7 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
8 F.3d at 167. The agency reasonably concluded that the
9 cumulative effect of the inconsistencies undermined Huang’s
10 credibility as to the sole incident of past harm alleged, and
11 a reasonable adjudicator would not be compelled to conclude
12 otherwise. See Tu Lin, 446 F.3d at 402; Xiu Xia Lin, 534 F.3d
13 at 167.
14 We decline to consider Huang’s unexhausted challenges to
15 reliability of his asylum interview record, and he does not
16 challenge the agency’s determination that he did not
17 independently establish a well-founded fear of persecution or
18 his eligibility for withholding of removal or CAT relief on
19 appeal.1 See Lin Zhong v. U.S.
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15-2191 Huang v. Boente BIA Balasquide, IJ A205 034 012
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 2nd day of February, two thousand sixteen. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 DEBRA ANN LIVINGSTON, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 YIJING HUANG, 14 Petitioner, 15 16 v. 15-2191 17 NAC 18 DANA J. BOENTE, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent.* 21 _____________________________________ 22 23 FOR PETITIONER: James A. Lombardi, Law Office of James 24 A. Lombardi, P.C., New York, N.Y. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Anthony
* The Clerk of Court is respectfully requested to amend the caption to conform to the above. 1 P. Nicastro, Assistant Director; S. 2 Nicole Nardone, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a Board
8 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
9 ADJUDGED, AND DECREED that the petition for review is DENIED.
10 Petitioner Yijing Huang, a native and citizen of China,
11 seeks review of a June 16, 2015, decision of the BIA affirming
12 a February 27, 2014, decision of an Immigration Judge (“IJ”)
13 denying Huang’s application for asylum, withholding of removal,
14 and relief under the Convention Against Torture (“CAT”). In re
15 Yijing Huang, No. A205 034 012 (B.I.A. June 16, 2015), aff’g
16 No. A205 034 012 (Immig. Ct. N.Y. City Feb. 27, 2014). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have reviewed the
20 IJ’s decision as modified and supplemented by the BIA. See Xue
21 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
22 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
23 The applicable standards of review are well established. 8
24 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
25 165-66 (2d Cir. 2008).
26 For asylum applications like Huang’s, governed by the REAL 2 1 ID Act, the agency may, “[c]onsidering the totality of the
2 circumstances,” base a credibility finding on an applicant’s
3 “demeanor, candor, or responsiveness,” the plausibility of his
4 account, and inconsistencies in his statements and other record
5 evidence “without regard to whether” those inconsistencies go
6 “to the heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “[E]ven
8 where an IJ relies on discrepancies or lacunae that, if taken
9 separately, concern matters collateral or ancillary to the
10 claim, the cumulative effect may nevertheless be deemed
11 consequential by the fact-finder.” Tu Lin v. Gonzales, 446 F.3d
12 395, 402 (2d Cir. 2006) (internal quotation marks and citation
13 omitted). “We defer . . . to an IJ’s credibility determination
14 unless . . . it is plain that no reasonable fact-finder could
15 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
16 at 167. Further, “[a] petitioner must do more than offer a
17 plausible explanation for his inconsistent statements to secure
18 relief; he must demonstrate that a reasonable fact-finder would
19 be compelled to credit his testimony.” Majidi v. Gonzales, 430
20 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted).
21 For the following reasons, we conclude that substantial evidence
22 supports the agency’s determination that Huang was not credible.
23 The agency reasonably based the credibility determination 3 1 on inconsistencies among Huang’s asylum interview statements,
2 application, and testimony concerning the circumstances of his
3 arrest and detention. See Xiu Xia Lin, 534 F.3d at 163-64.
4 First, Huang stated during his asylum interview that the
5 police arrested him around 7:30pm, about a half an hour after
6 his underground church service had begun. However, he testified
7 that the service began at 5:00pm and that he was arrested at
8 6:00pm. When confronted with this discrepancy, Huang was
9 initially nonresponsive and then stated that he could not
10 remember his statement to the asylum officer. This response did
11 not explain the inconsistency, and the agency was not compelled
12 to accept it. Majidi, 430 F.3d at 80.
13 Second, Huang stated during his interview that his
14 congregation was in the middle of singing a hymn when the police
15 arrived. However, he testified and stated in his application
16 that the police entered in the middle of a Bible reading. When
17 confronted with this discrepancy, Huang was initially
18 nonresponsive and then stated that he could not remember his
19 interview statement. This response did not explain the
20 inconsistency, and the agency was not compelled to accept it.
21 Majidi, 430 F.3d at 80.
22 Third, Huang stated during his interview that his second
23 interrogation lasted “only” 10 minutes. However, he testified 4 1 that this interrogation lasted “about 30 minutes.” The agency
2 was not compelled to accept Huang’s explanations for this
3 inconsistency. Majidi, 430 F.3d at 80.
4 Given the foregoing inconsistencies and the agency’s proper
5 rejection of Huang’s corresponding explanations, the adverse
6 credibility determination is supported by substantial evidence.
7 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
8 F.3d at 167. The agency reasonably concluded that the
9 cumulative effect of the inconsistencies undermined Huang’s
10 credibility as to the sole incident of past harm alleged, and
11 a reasonable adjudicator would not be compelled to conclude
12 otherwise. See Tu Lin, 446 F.3d at 402; Xiu Xia Lin, 534 F.3d
13 at 167.
14 We decline to consider Huang’s unexhausted challenges to
15 reliability of his asylum interview record, and he does not
16 challenge the agency’s determination that he did not
17 independently establish a well-founded fear of persecution or
18 his eligibility for withholding of removal or CAT relief on
19 appeal.1 See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
1 The Government mistakenly refers to Huang’s asylum interview as a credible fear interview. Asylum and credible interviews are distinct interviews: they occur in different contexts and are therefore governed by different standards of reliability. Compare Diallo v. Gonzales, 445 F.3d 624, 63 (2d Cir. 2006) (asylum interviews), with Ming Zhang v. Holder, 585 F.3d 715, 5 1 122 (2d Cir. 2007) (providing that judicially imposed issue
2 exhaustion is mandatory); Norton v. Sam’s Club, 145 F.3d 114,
3 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs
4 are considered waived and normally will not be addressed on
5 appeal.”).
6 Lastly, we reject Huang’s argument that the IJ failed to
7 consider his corroborating evidence in assessing credibility.
8 The agency need not “expressly parse or refute on the record
9 each individual argument or piece of evidence offered by the
10 petitioner,” Wei Guang Wang v. Bd. of Immigration Appeals, 437
11 F.3d 270, 275 (2d Cir. 2006), and “we presume that an IJ has
12 taken into account all of the evidence before him, unless the
13 record compellingly suggests otherwise.” Xiao Ji Chen v. U.S.
14 Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006).
15 Although the IJ did not individually analyze each piece of
16 Huang’s corroborating evidence, the IJ did state explicitly that
17 he evaluated Huang’s corroborating evidence in assessing his
18 credibility and concluded that Huang “failed to establish by
19 credible, detailed evidence that he in fact suffered past
20 persecution.” The record contains sufficient indication that
21 the IJ considered Huang’s corroborating evidence, and the IJ’s
22 failure to parse or refute each piece of evidence on the record
723-74 (2d Cir. 2009) (credible fear interviews). 6 1 does not compellingly suggest that it was ignored. See
2 Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005)
3 (“We . . . require some indication that the IJ considered
4 material evidence supporting a petitioner’s claim.”); Wei Guang
5 Wang, 437 F.3d at 275; Xiao Ji Chen, 471 F.3d at 338 n.17.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument in
11 this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk