22-6463 Huang v. Garland BIA McCarthy, IJ A209 830 357
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of October, two thousand twenty-four.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, PIERRE N. LEVAL, BETH ROBINSON, Circuit Judges. _____________________________________
CAI XIA HUANG, Petitioner,
v. 22-6463 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Zhen Liang Li, Esq., Law Office of Zhen Liang Li, New York, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Jeffery R. Leist, Senior Litigation Counsel; Neelam Ihsanullah, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Cai Xia Huang, a native and citizen of the People’s Republic of
China, seeks review of an August 26, 2022, decision of the BIA affirming a June 3,
2019, decision of an Immigration Judge (“IJ”) denying her application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Cai Xia Huang, No. A 209 830 357 (B.I.A. Aug. 26, 2022), aff’g No.
A 209 830 357 (Immig. Ct. N.Y. City June 3, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review the agency’s factual findings, including adverse credibility
2 determinations, for substantial evidence, and we review questions of law and the
application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
Cir. 2018). “[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
“Considering the totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on the demeanor, candor, or
responsiveness of the applicant . . . , the inherent plausibility of the applicant’s . . .
account, the consistency between the applicant’s . . . written and oral statements
. . . , the internal consistency of each such statement, the consistency of such
statements with other evidence of record . . . , and any inaccuracies or falsehoods
in such statements, without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”
Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d
162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
Substantial evidence supports the agency’s determination that Huang was
3 not credible as to her claim that she was arrested and beaten for attending an
underground church in China. The agency reasonably relied on inconsistencies
and implausibilities related to Huang’s prior attempt to travel to the United States.
See 8 U.S.C. § 1158(b)(1)(B)(iii). Huang testified that she did not intend to come
to the United States prior to her alleged persecution, but after being asked whether
she had applied for a visa, she conceded that she applied for a visa in 2015, before
she allegedly began attending church and before she was arrested. The agency
was not required to accept her explanation that she misspoke because she was
nervous. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
do more than offer a plausible explanation for his inconsistent statements to secure
relief; he must demonstrate that a reasonable fact-finder would be compelled to
credit his testimony.” (quotation marks omitted)); see also Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 397 n.6 (2d Cir. 2005) (noting that “an alien’s mere recitation
that he was nervous or felt pressured during an . . . interview will not
automatically prevent the IJ or BIA from relying on statements . . . when making
adverse credibility determinations”).
Moreover, Huang testified that she had intended to travel for a vacation,
which the IJ reasonably found implausible because she also testified that her the
4 visa application cost one quarter of her annual income; when asked about the
expenditure, she said only that she did not know exactly how much was spent.
See Siewe v. Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (explaining that the agency
may not engage in “bald” speculation, but that the agency may rely on
implausibility findings based on an “inference . . . made available to the factfinder
by record facts, or even a single fact, viewed in the light of common sense and
ordinary experience”).
As the IJ found, Huang’s visa application also conflicted with her testimony,
as it reflected that she had travelled to Australia and Singapore and worked as an
administrative director at a technology firm, while she testified that she was a
salesperson and had not previously traveled outside China. Given her testimony
about the visa interview in China and the conflicts between the testimony and her
credible fear interview, the IJ reasonably rejected as implausible her explanation
that an agency prepared the application with false information without her
knowledge. 1
1 Huang does not challenge the agency’s reliance on the credible fear interview, and the agency may rely on interview records, such as the one here, that bear sufficient “hallmarks of reliability.” Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). 5 The agency also reasonably relied on inconsistent testimony related to
Huang’s residence in the United States. See 8 U.S.C.
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22-6463 Huang v. Garland BIA McCarthy, IJ A209 830 357
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of October, two thousand twenty-four.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, PIERRE N. LEVAL, BETH ROBINSON, Circuit Judges. _____________________________________
CAI XIA HUANG, Petitioner,
v. 22-6463 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Zhen Liang Li, Esq., Law Office of Zhen Liang Li, New York, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Jeffery R. Leist, Senior Litigation Counsel; Neelam Ihsanullah, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Cai Xia Huang, a native and citizen of the People’s Republic of
China, seeks review of an August 26, 2022, decision of the BIA affirming a June 3,
2019, decision of an Immigration Judge (“IJ”) denying her application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Cai Xia Huang, No. A 209 830 357 (B.I.A. Aug. 26, 2022), aff’g No.
A 209 830 357 (Immig. Ct. N.Y. City June 3, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review the agency’s factual findings, including adverse credibility
2 determinations, for substantial evidence, and we review questions of law and the
application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
Cir. 2018). “[T]he administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
“Considering the totality of the circumstances, and all relevant factors, a
trier of fact may base a credibility determination on the demeanor, candor, or
responsiveness of the applicant . . . , the inherent plausibility of the applicant’s . . .
account, the consistency between the applicant’s . . . written and oral statements
. . . , the internal consistency of each such statement, the consistency of such
statements with other evidence of record . . . , and any inaccuracies or falsehoods
in such statements, without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or any other relevant factor.”
Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d
162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76.
Substantial evidence supports the agency’s determination that Huang was
3 not credible as to her claim that she was arrested and beaten for attending an
underground church in China. The agency reasonably relied on inconsistencies
and implausibilities related to Huang’s prior attempt to travel to the United States.
See 8 U.S.C. § 1158(b)(1)(B)(iii). Huang testified that she did not intend to come
to the United States prior to her alleged persecution, but after being asked whether
she had applied for a visa, she conceded that she applied for a visa in 2015, before
she allegedly began attending church and before she was arrested. The agency
was not required to accept her explanation that she misspoke because she was
nervous. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
do more than offer a plausible explanation for his inconsistent statements to secure
relief; he must demonstrate that a reasonable fact-finder would be compelled to
credit his testimony.” (quotation marks omitted)); see also Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 397 n.6 (2d Cir. 2005) (noting that “an alien’s mere recitation
that he was nervous or felt pressured during an . . . interview will not
automatically prevent the IJ or BIA from relying on statements . . . when making
adverse credibility determinations”).
Moreover, Huang testified that she had intended to travel for a vacation,
which the IJ reasonably found implausible because she also testified that her the
4 visa application cost one quarter of her annual income; when asked about the
expenditure, she said only that she did not know exactly how much was spent.
See Siewe v. Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (explaining that the agency
may not engage in “bald” speculation, but that the agency may rely on
implausibility findings based on an “inference . . . made available to the factfinder
by record facts, or even a single fact, viewed in the light of common sense and
ordinary experience”).
As the IJ found, Huang’s visa application also conflicted with her testimony,
as it reflected that she had travelled to Australia and Singapore and worked as an
administrative director at a technology firm, while she testified that she was a
salesperson and had not previously traveled outside China. Given her testimony
about the visa interview in China and the conflicts between the testimony and her
credible fear interview, the IJ reasonably rejected as implausible her explanation
that an agency prepared the application with false information without her
knowledge. 1
1 Huang does not challenge the agency’s reliance on the credible fear interview, and the agency may rely on interview records, such as the one here, that bear sufficient “hallmarks of reliability.” Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). 5 The agency also reasonably relied on inconsistent testimony related to
Huang’s residence in the United States. See 8 U.S.C. § 1158(b)(1)(B)(iii). Huang
was unclear about where she had lived in Louisiana: she changed her testimony
multiple times when asked for specific addresses or questioned about a car she
had registered.
Finally, the IJ’s demeanor finding—that Huang appeared surprised when
asked about issues not addressed in her statement—is entitled to deference.
See Li Hua Lin v. U.S. Dep’t of Just., 453 F.3d 99, 109 (2d Cir. 2006) (giving “particular
deference” to demeanor finding because the IJ is “in the best position to evaluate
whether apparent problems in the . . . testimony suggest a lack of credibility or,
rather, can be attributed to an innocent cause such as difficulty understanding the
question” (quoting Jin Chen v. U.S. Dep’t of Just., 426 F.3d 104, 113 (2d Cir. 2005))).
Moreover, the record supports the demeanor finding given that Huang changed
her testimony when confronted with additional information about her residence
and past visa application. Id. (“We can be still more confident in our review of
observations about an applicant's demeanor where, as here, they are supported by
specific examples of inconsistent testimony.”).
6 Huang does not challenge the individual findings outlined above, except to
argue that the agency should have accepted her explanations. Instead, she argues
that the agency erred in relying on minor and tangential inconsistencies. That
argument is without merit. Huang’s history of an attempt to obtain a visa to the
United States by fraud shows her willingness to lie and undermines her claim that
alleged persecution was the reason she left China. Moreover, “a single false
document or a single instance of false testimony may (if attributable to the
petitioner) infect the balance of the alien’s uncorroborated or unauthenticated
evidence.” Siewe, 480 F.3d at 170. And “[e]ven where an IJ relies on
discrepancies or lacunae that, if taken separately, concern matters collateral or
ancillary to the claim, the cumulative effect may . . . be deemed consequential by
the fact-finder.” Xiu Xia Lin, 534 F.3d at 167 (quotation marks omitted); see also
8 U.S.C. § 1158(b)(1)(B)(iii) (specifying that the agency may consider issues that do
not go “to the heart of the applicant’s claim” in the “totality of circumstances”).
In sum, given the inconsistencies, implausible testimony, and the IJ’s
demeanor findings, substantial evidence supports the adverse credibility
determination. See Xiu Xia Lin, 534 F.3d at 167; Siewe, 480 F.3d at 168–69; Li Hua
Lin, 453 F.3d at 109. The adverse credibility determination is dispositive of
7 asylum, withholding of removal, and CAT relief because all three forms of relief
are based on the same factual predicate. See Hong Fei Gao, 891 F.3d at 76.
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court