Huang v. Sessions

16-4147 Huang v. Sessions BIA Poczter, IJ A205 416 575 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 11th day of July, two thousand eighteen. [5] 6 PRESENT: 7 JOHN M. WALKER, JR., 8 REENA RAGGI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ [12] 13 ZENG EN HUANG, [14] 15 Petitioner, [16] 17 v. 16-4147 18 NAC [19] 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, [22] 23 Respondent. 24 _____________________________________ [25] 26 FOR PETITIONER: Cora J. Chang, New York, NY. [27] 28 FOR RESPONDENT: Chad A. Readler, Acting Assistant 29 Attorney General; Jessica E. 1 Burns, Senior Litigation Counsel; 2 Rosanne M. Perry, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC. [6] 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Zeng En Huang, a native and citizen of the 12 People’s Republic of China, seeks review of a November 30, 13 2016, decision of the BIA affirming a January 11, 2016, 14 decision of an Immigration Judge (“IJ”) denying asylum, 15 withholding of removal, and relief under the Convention 16 Against Torture (“CAT”). In re Zeng En Huang, No. A205 416 17 575 (B.I.A. Nov. 30, 2016), aff’g No. A205 416 575 (Immig. 18 Ct. N.Y. City Jan. 11, 2016). We assume the parties’ 19 familiarity with the underlying facts and procedural history 20 in this case. 21 Under the circumstances of this case, we have reviewed 22 both the IJ’s and the BIA’s opinions “for the sake of 23 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 24 524, 528 (2d Cir. 2006). The applicable standards of review [2] 1 are well established. 8 U.S.C. § 1252 (b)(4)(B); Xiu Xia Lin 2 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 3 “Considering the totality of the circumstances, and all 4 relevant factors, a trier of fact may base a credibility 5 determination on the demeanor, candor, or responsiveness of 6 the applicant or witness, . . . the consistency between the 7 applicant’s or witness’s written and oral statements . . . , 8 [and] the internal consistency of each such statement . . . 9 without regard to whether an inconsistency, inaccuracy, or 10 falsehood goes to the heart of the applicant’s claim . . . .” [11] 8 U.S.C. § 1158 (b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163 - 12 64. Substantial evidence supports the agency’s determination 13 that Huang was not credible as to his claim that Chinese 14 family planning officials forced his wife to terminate a 15 pregnancy and detained and harmed him for violating China’s 16 family planning policy. 17 The agency reasonably relied in part on Huang’s demeanor, 18 noting that he was unresponsive and evasive at times. See [19] 8 U.S.C. § 1158 (b)(1)(B)(iii); see also Majidi v. Gonzales, [20] 430 F.3d 77 , 81 n.1 (2d Cir. 2005) (recognizing that 21 particular deference is given to the trier of fact’s [3] 1 assessment of demeanor). That finding is supported by the 2 record. 3 The demeanor finding and the overall credibility 4 determination are bolstered by record inconsistencies. See 5 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d 6 Cir. 2006). The agency reasonably found that Huang made 7 inconsistent statements regarding whether he interacted with 8 police after his release from detention, and where he and his 9 wife lived in hiding from family planning officials. See [10] 8 U.S.C. § 1158 (b)(1)(B)(iii). Huang did not provide 11 compelling explanations for these inconsistencies. See 12 Majidi, 430 F.3d at 80 (“A petitioner must do more than offer 13 a plausible explanation for his inconsistent statements to 14 secure relief; he must demonstrate that a reasonable fact- 15 finder would be compelled to credit his testimony.” (internal 16 quotation marks omitted)). 17 Having questioned Huang’s credibility, the agency 18 reasonably relied further on his failure to rehabilitate his 19 credibility with corroborating evidence. “An applicant’s 20 failure to corroborate his or her testimony may bear on 21 credibility, because the absence of corroboration in general 22 makes an applicant unable to rehabilitate testimony that has [4] 1 already been called into question.” Biao Yang v. Gonzales, [2] 496 F.3d 268, 273 (2d Cir. 2007). The agency did not err in 3 declining to credit unsworn letters from Huang’s relatives 4 because they were from interested parties who were not 5 available for cross-examination. See Y.C. v. Holder, 741 [6] F.3d 324, 334 (2d Cir. 2013). There is no merit to Huang’s 7 argument that the IJ was required to identify what 8 corroborating evidence was missing and explain why it was 9 reasonably available given that the lack of corroboration 10 finding was made in the context of an adverse credibility 11 determination. See Diallo v. Gonzales, 445 F.3d 624 , 633-34 12 (2d Cir. 2006). 13 Given the demeanor and inconsistency findings, as well 14 as the lack of corroboration, the agency’s adverse 15 credibility determination is supported by substantial 16 evidence. 8 U.S.C. § 1158 (b)(1)(B)(iii). That 17 determination is dispositive of Huang’s claims for asylum, 18 withholding of removal, and CAT relief because all three 19 claims are based on the same factual predicate. See Paul v. 20 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 21 For the foregoing reasons, the petition for review is 22 DENIED. As we have completed our review, any stay of removal [5] 1 that the Court previously granted in this petition is VACATED, 2 and any pending motion for a stay of removal in this petition 3 is DISMISSED as moot. Any pending request for oral argument 4 in this petition is DENIED in accordance with Federal Rule of 5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 6 34.1(b). 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court