Huang v. Garland ( 2021 )

19-3281
Huang v. Garland
BIA
Wright, IJ
A206 264 417
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.
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 2nd day of June, two thousand twenty-one.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
JOSEPH F. BIANCO,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
CHUN MEI HUANG,
Petitioner,
v. 19-3281
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lewis G. Hu, Esq., New York, NY.
FOR RESPONDENT: David J. Schor, Trial Attorney,
Office of Immigration Litigation;
Brian M. Boynton, Acting Assistant
Attorney General; Kohsei Ugumori,
Senior Litigation Counsel; 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 Chun Mei Huang, a native and citizen of the
People’s Republic of China, seeks review of a September 16,
2019 decision of the BIA affirming a December 20, 2017
decision of an Immigration Judge (“IJ”), which denied asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”). In re Chun Mei Huang, No. A 206 264
417 (B.I.A. Sept. 16, 2019), aff’g No. A 206 264 417 (Immigr.
Ct. N.Y.C. Dec. 20, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s opinions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
applicable standards of review are well established. See 8
U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact
are conclusive unless any reasonable adjudicator would be
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compelled to conclude to the contrary.”); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
credibility determination for substantial evidence). An IJ
may, “[c]onsidering the totality of the circumstances,” base
a credibility finding on an asylum applicant’s “demeanor,
candor, or responsiveness,” the plausibility of her account,
and inconsistencies in her statements or between her
statements and other evidence, “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
defer . . . to an IJ’s adverse 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. The
IJ’s findings, taken cumulatively, provide substantial
evidence for the adverse credibility determination.
The agency reasonably relied on Huang’s omission of the
forced abortion during her initial border interview. See 8
U.S.C. § 1158(b)(1)(B)(iii). Huang stated that she left
China because she was harmed by her village’s government and,
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when the interviewer asked whether she was physically harmed
or threatened with death, Huang responded that the government
forced her to have an intra-uterine device, threatened to
sterilize her, and beat her husband. The agency did not err
in relying on the omission. The record of Huang’s border
interview was sufficiently reliable because it consists of a
verbatim list of questions and answers, the interviewer asked
a follow-up question to elicit an asylum claim, and there is
no indication that Huang had difficulty understanding the
interpreter. Ramsameachire v. Ashcroft, 357 F.3d 169, 179–
80 (2d Cir. 2004). Although omissions may be “less probative
of credibility than inconsistencies,” this is a fact that “a
credible petitioner would reasonably have been expected to
disclose.” Hong Fei Gao, 891 F.3d at 78–79. Given the
indicia of reliability of the interview record, the agency
was not compelled to accept Huang’s explanation that the
interpreter may not have heard her response. See Majidi v.
Gonzalez, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
do more than offer a plausible explanation for h[er]
inconsistent statements to secure relief; [s]he must
demonstrate that a reasonable fact-finder would be compelled
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to credit h[er] testimony.” (internal quotation marks
omitted)).
The adverse credibility is bolstered by Huang’s admission
that she lied in her border interview about her travel to the
United States. See 8 U.S.C. § 1158(b)(1)(B)(iii) (allowing
the IJ to consider “any inaccuracies or falsehoods”); see
Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[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.”).
And, as the IJ noted, Huang gave inconsistent dates for her
pregnancy and abortion during her credible fear interview.
Although she corrected the dates, we defer to the IJ’s
interpretation of her confusion as evidence that Huang
appeared to be testifying from a script, rather than from
memory. See Siewe, 480 F.3d at 167–68 (deferring to the
agency where there are two possible interpretations of the
record).
Finally, the IJ reasonably determined that Huang’s
documentary evidence failed to rehabilitate her inconsistent
testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
5
Cir. 2007) (“An applicant’s failure to corroborate his or her
testimony may bear on credibility, because the absence of
corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
question.”). The IJ did not err in giving diminished weight
to the letter from Huang’s husband because it was written by
an interested party who was not subject to cross examination.
See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
(upholding agency’s decision not to credit letter from
applicant’s spouse); see also In re H-L-H- & Z-Y-Z-, 25 I. &
N. Dec. 209, 215 (B.I.A. 2010) (finding letters from friends
and family insufficient to support alien’s claims because the
authors were “interested witnesses . . . not subject to cross-
examination”), overruled on other grounds by Hui Lin Huang v.
Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). The IJ also
reasonably gave diminished weight to Huang’s U.S. medical
records because they were based on her own statements years
after the abortion. See Y.C., 741 F.3d at 332. And as the
IJ pointed out, the medical documentation from China
referenced an abortion, but did not corroborate that the
abortion was forced.
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In sum, taken cumulatively and given the deference due
to the agency, the IJ’s findings provide substantial evidence
for the adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The
adverse credibility determination is dispositive of asylum,
withholding of removal, and CAT relief because all three
claims are based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
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
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