Duanying Huang v. Holder , 447 F. App'x 253 ( 2011 )

10-3807-ag
Huang v. Holder
BIA
Balasquide, IJ
A098 975 216
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of November, two thousand eleven.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 DUANYING HUANG,
14 Petitioner,
15
16 v. 10-3807-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: WaiSim M. Cheung, Tsoi and
24 Associates, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Blair T. O’Connor,
28 Assistant Director; Ari Nazarov,
29 Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Duanying Huang, a native and citizen of the
6 People’s Republic of China, seeks review of an August 25,
7 2010, order of the BIA affirming the October 23, 2008,
8 decision of an Immigration Judge (“IJ”) denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re
11 Duanying Huang, No. A098 975 216 (B.I.A. Aug. 25, 2010),
12 aff’g No. A098 975 216 (Immig. Ct. N.Y. City Oct. 23, 2008).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009). Because Huang only challenges the
21 agency’s conclusion that she did not establish past
22 persecution we address only the agency’s adverse credibility
2
1 determination. Under the REAL ID Act, which applies in this
2 case, the agency may, considering the totality of the
3 circumstances, base a credibility finding on inconsistencies
4 in an applicant’s statements or between his or her
5 statements and other evidence in the record, without regard
6 to whether they go “to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia Lin
11 v. Mukasey, 534 F. 3d 162, 167 (2d Cir. 2008).
12 We agree with Huang that some of the IJ’s inconsistency
13 findings were flawed. The IJ erred in finding that Huang
14 testified inconsistently regarding whether her intrauterine
15 device (“IUD”) was removed in her house or at the office of
16 a private physician without presenting “specific, cogent
17 reasons” for rejecting her translator’s explanation that
18 there was no inconsistency because Huang had used the word
19 “home” to mean “hometown.” See Zhi Wei Pang v. Bureau of
20 Citizenship & Immig. Servs., 448 F.3d 102, 108 (2d Cir.
21 2006). Moreover, contrary to the IJ’s finding, there were
22 no inconsistencies between Huang’s testimony and her
3
1 supporting documents: Her gynecological examination
2 certificate, which indicated that the last exam she attended
3 was on September 15, 2003, was consistent with her testimony
4 that she did not go to any checkups after that date. No
5 evidence in the record indicated that her “floating
6 population certificate” should mention her March 2004
7 forcible abortion because the certificate was issued in 2002
8 and had not been updated since being issued. Huang’s March
9 16, 2004, fine for a delayed gynecological checkup was not
10 inconsistent with her testimony that her pregnancy was
11 forcibly terminated on March 15, 2004; rather it
12 corroborated Huang’s testimony that she had missed checkups
13 before the abortion. And Huang’s certificate for
14 voluntarily agreeing to raise only one child, received in
15 May 2003, was not inconsistent with her testimony that she
16 later had a second pregnancy.
17 However, despite these flaws the agency’s adverse
18 credibility determination was supported by substantial
19 evidence and remand is not necessary because “we can state
20 with confidence that the [agency] would adhere to [its]
21 decision were the petition remanded.” Xiao Ji Chen v. U.S.
22 Dep’t of Justice, 434 F.3d 144, 161 (2d Cir. 2006). As
4
1 Huang concedes, she gave inconsistent testimony regarding
2 whether she had a single IUD between 1998 and 2006 and the
3 IJ was not required to accept her explanation that she was
4 confused. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
5 2005). Further, as the BIA found, Huang’s credibility was
6 undermined by “the discrepancy between [her] claim that she
7 received an abortion certificate following her forced
8 abortion and [a State Department Country Report stating]
9 United States authorities are unaware of any so-called
10 abortion certificates and that the only document that might
11 resemble such a certificate . . . is a document issued by
12 hospitals upon a patient’s request after a voluntary
13 abortion.” Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d
14 Cir. 2007) (finding no error in adverse credibility
15 determination based in part on alien’s presentation of an
16 abortion certificate).
17 Huang argues that she was deprived of due process by
18 the BIA’s reliance on that State Department report which was
19 not in the record. However, while it “would have been
20 preferable for the BIA to have advised [Huang] of its intent
21 to consider the [report] and to have afforded [her] an
22 opportunity to respond thereto,” its failure to do so did
5
1 not result in a violation of due process requiring remand
2 because the report was not the sole basis for the agency’s
3 credibility determination, but confirmed the agency’s
4 disposition of the case. Jian Hui Shao v. Mukasey, 546 F.3d
5 138, 167-68 (2d Cir. 2008). Moreover, Huang has not
6 indicated any basis for refuting the significance of the
7 report if her case were remanded.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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