Huang v. Garland ( 2021 )

18-2393
Huang v. Garland
BIA
Brennan, IJ
A206 064 047
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 22nd day of March, two thousand twenty-one.
PRESENT:
SUSAN L. CARNEY,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
ZHIZONG HUANG,
Petitioner,
v. 18-2393
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent. 1
_____________________________________
FOR PETITIONER: David A. Bredin, Esq., Flushing,
NY.
FOR RESPONDENT: Jennifer P. Levings, Senior
Litigation Counsel; Laura Halliday
1 The Clerk of Court is respectfully directed to amend the caption as
set forth above.
Hickein, 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 Zhizong Huang, a native and citizen of the
People’s Republic of China, seeks review of a July 19, 2018
decision of the BIA affirming an August 8, 2017 decision of
an Immigration Judge (“IJ”) denying Huang’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Zhizong Huang, No.
A 206 064 047 (B.I.A. July 19, 2018), aff’g No. A 206 064 047
(Immig. Ct. N.Y. City Aug. 8, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
to which we refer only as needed to explain our decision to
deny the petition.
Under the circumstances of this case, we review both the
IJ’s and the BIA’s decisions. See Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
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(2d Cir. 2018). As 8 U.S.C. § 1158(b)(1)(B)(iii) provides:
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 or witness, the
inherent plausibility of the applicant’s or
witness’s account, the consistency between the
applicant’s or witness’s written and oral
statements . . . , the internal consistency of
each such statement, the consistency of such
statements with other evidence of record . . . ,
without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.
“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.
On review, we conclude that substantial evidence supports
the agency’s determination that Huang’s claim that the
Chinese police were aware of his practice of Christianity in
the United States was not credible.
As an initial matter, the agency did not err in
determining that Huang’s misrepresentation during a visa
interview undermined his credibility. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). Although the agency may err in
“penaliz[ing] an applicant for lying to escape a country where
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. . . []he faces persecution,” Rui Ying Lin v. Gonzales, 445
F.3d 127, 134 (2d Cir. 2006), Huang’s misrepresentation
predated his asylum claim, which arose only after he began
practicing Christianity in the United States.
Further, the agency reasonably relied on discrepancies
between Huang’s testimony and his documentary evidence. See
8 U.S.C. § 1158(b)(1)(B)(iii). Huang’s written statement was
inconsistent with his testimony as to when and how he was
introduced to the Christian church in the United States, and
his friend Kevin’s letter did not provide details to
corroborate Huang’s testimony. Also, the two letters from
Wang, Huang’s friend in China to whom Huang sent a Bible,
were inconsistent about the date and some circumstances of
Wang’s arrest. One letter stated that Wang and five others
were arrested in 2013 and their Bible was confiscated. The
second stated that the arrest occurred in 2012 and thereafter
Wang could read the Bible only at home. The IJ was not
required to credit Huang’s explanation for the discrepancy—
that Wang wrote a second letter because the Chinese government
visited him several times and that Wang used a date from the
Chinese calendar in the second letter—where Wang’s second
letter contradictorily stated that it was provided at the
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request of Huang’s mother and the explanation in any case did
not resolve the date discrepancy. 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)).
Additionally, the two letters from Huang’s mother were
inconsistent with each other and with Huang’s application.
Her first letter reported that Chinese authorities called her
on the telephone looking for her son, a report that conflicts
with statements made in Huang’s application. Her second
letter appears simply to have been revised from the first to
be consistent with the statement in Huang’s application that
the authorities confronted her in person. The agency
reasonably relied on the cumulative effect of these
inconsistencies in reaching a negative assessment of Huang’s
credibility. See Liang Chen v. U.S. Att’y Gen., 454 F.3d
103, 106-07 (2d Cir. 2006).
These findings and the overall adverse credibility
determination are bolstered by the agency’s negative demeanor
finding. We give particular deference to the IJ’s demeanor
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determination because only the IJ has the ability to observe
the witness. See Majidi, 430 F.3d at 81 n.1. Here, the IJ
found that Huang appeared both reluctant and evasive when
responding to questions about his sending the Bible to Wang
in China, and about why he sent money along with the Bible.
Since Huang admitted this was the only time he provided any
financial support to Wang, we see a reasonable basis for the
IJ’s skepticism about Huang’s testimony that he was not paying
for the letters. See Siewe v. Gonzales, 480 F.3d 160, 167
(2d Cir. 2007) (“‘Where there are two permissible views of
the evidence, the factfinder’s choice between them cannot be
clearly erroneous.’” (quoting Anderson v. Bessemer City, 470
U.S. 564, 574 (1985))).
Having a sound basis for questioning Huang’s credibility,
the agency reasonably relied further on his failure to
rehabilitate his testimony with reliable corroborating
evidence. “An applicant’s failure to corroborate . . . 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.” Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Given the
inconsistencies between the supporting letters and Huang’s
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own statements, and the fact that the other proffered letters
contained only very general information that failed to
corroborate details of Huang’s introduction to or practice of
Christianity in the United States, the IJ reasonably found
the letters insufficient to rehabilitate Huang’s testimony.
Nor did the IJ err in declining to give weight to the
report of Wang’s arrest in China, since its validity depended
on the credibility of both Huang and Wang, and their
credibility had been called into question by inconsistencies
in their statements. See Y.C. v. Holder, 741 F.3d 324, 332
(2d Cir. 2013) (“We generally defer to the agency’s evaluation
of the weight to be afforded an applicant’s documentary
evidence.”). Further, he IJ reasonably accorded limited
weight to the testimony of Huang’s pastor in the United
States, because the pastor did not address Huang’s
misrepresentation when obtaining a visa, or the
inconsistencies regarding Huang’s introduction to the church
or in how Huang secured his documents from China.
Taken together, Huang’s misrepresentation when obtaining
a visa, the aforementioned inconsistencies, the IJ’s demeanor
finding, and the lack of reliable corroboration constitute
substantial evidence supporting the agency’s adverse
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credibility ruling. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
Xia Lin, 534 F.3d at 166-67. Because they all rested on the
same factual predicate, this adverse credibility
determination is dispositive of Huang’s claims for asylum,
withholding of removal, and CAT relief. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006). Finally, as the
Government points out, Huang failed to exhaust his argument
that his counsel’s withdrawal negatively influenced the IJ’s
decision. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 122 (2d Cir. 2007). He therefore may not pursue it here
on a petition for review.
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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