Huang v. Holder , 538 F. App'x 77 ( 2013 )

12-4541
Huang v. Holder
BIA
Vomacka, IJ
A089 096 094
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of October, two thousand thirteen.
5
6 PRESENT:
7
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _______________________________________
13
14 YING HUANG,
15 Petitioner,
16
17 v. 12-4541
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Jennifer Williams,
28 Senior Litigation Counsel; Lance L.
29 Jolley, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Ying Huang, a native and citizen of the
10 People’s Republic of China, seeks review of an October 26,
11 2012 decision of the BIA affirming the March 4, 2011
12 decision of an Immigration Judge (“IJ”), which denied her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Ying
15 Huang, No. A089 096 094 (B.I.A. Oct. 26, 2012), aff’g No.
16 A089 096 094 (Immig. Ct. N.Y. City Mar. 4, 2011). 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 review the
20 IJ’s decision as supplemented by the BIA. See Yan Chen v.
21 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
22 standards of review are well-established. See 8 U.S.C.
23 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
24 510, 513 (2d Cir. 2009). For applications such as Huang’s,
2
1 governed by the amendments made to the Immigration and
2 Nationality Act by the REAL ID Act of 2005, the agency may,
3 “[c]onsidering the totality of the circumstances . . . base
4 a credibility determination on the demeanor, candor, or
5 responsiveness of the applicant or witness, the inherent
6 plausibility of [his or her] account,” and inconsistencies
7 in her statements, “without regard to whether . . . [they
8 go] to the heart of the applicant’s claim.” See
9 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
10 F.3d 162, 167 (2d Cir. 2008) (per curiam).
11 Huang’s arguments that the agency erred in not
12 distinguishing between its factual findings and legal
13 determinations, and that the credible fear notes are
14 unreliable, were not raised below and are unexhausted. See
15 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
16 Cir. 2007) (requiring a petitioner to raise each argument
17 before the BIA). Even were we to consider these arguments,
18 however, Huang points to no error that resulted from the
19 agency’s failure to state whether its findings were legal or
20 factual, and the credible fear notes appear reliable. See
21 Ming Zhang v. Holder, 585 F.3d 715, 724 (2d Cir. 2009).
22
3
1 The agency’s determination that Huang was not credible
2 is supported by substantial evidence. Yanqin Weng, 562 F.3d
3 at 513; Xiu Xia Lin, 534 F.3d at 167. Huang’s claim at the
4 credible fear interview was significantly different from
5 that detailed in her asylum application. See Xiu Xia Lin,
6 534 F.3d at 167 (holding that an IJ may support an adverse
7 credibility determination with “any inconsistency or
8 omission”). Furthermore, the IJ considered but rejected
9 Huang’s explanation that her claim at the credible fear
10 interview was created and delivered at the direction of her
11 smuggler. Instead, Huang attempted to have an individual
12 identified as her “uncle” answer whether she had suffered
13 persecution in China. Huang, however, testified that she
14 did not speak to the “uncle” often, so he would not know
15 about her claims. This explanation, even if considered
16 plausible, did not have to be credited by the agency. See 8
17 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d
18 77, 80-81 (2d Cir. 2005). Furthermore, the discrepancy was
19 central to her claim, and properly constituted a basis for
20 an adverse credibility finding. See Xiu Xia Lin, 534 F.3d
21 at 167; Majidi, 430 F.3d at 81. Contrary to Huang’s
22 argument, the agency did consider the totality of the
4
1 circumstances bearing on her credibility, as the IJ pointed
2 out other inconsistencies and considered the documentary
3 evidence. Xiu Xia Lin, 534 F.3d at 167.
4 In finding Huang not credible, the IJ also reasonably
5 relied on the lack of corroboration for her testimony. See
6 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
7 applicant’s failure to corroborate his or her testimony may
8 bear on credibility, because the absence of corroboration in
9 general makes an applicant unable to rehabilitate testimony
10 that has already been called into question.”). Here, the IJ
11 noted that the letters from Huang’s mother, boyfriend, and
12 church in China were not authenticated in any way; the BIA
13 correctly stated that they were from interested witnesses
14 not subject to cross-examination and drafted for litigation
15 purposes. See Matter of H–L–H- & Z–Y–Z–, 25 I. & N. Dec.
16 209, 215 (BIA 2010), abrogated on other grounds by Lin Huang
17 v. Holder, 677 F.3d 130 (2d Cir. 2012). In addition, the
18 agency correctly noted that the letter from Huang’s church
19 in China made no mention of any persecution, and her medical
20 records did not demonstrate that her abortion was forced.
21 The weight afforded to an applicant’s evidence in
22 immigration proceedings “lies largely within the discretion”
23 of the agency. Xiao Ji Chen v. U.S. Dep’t of Justice, 471
5
1 F.3d 315, 342 (2d Cir. 2006) (internal quotations and
2 alteration omitted). The agency’s adverse credibility
3 determination is supported by substantial evidence, and
4 Huang’s challenge fails. Xiu Xia Lin, 534 F.3d at 167.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, the pending motion
7 for a stay of removal in this petition is DISMISSED as moot.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
6