14-4711 Huang v. Lynch BIA Cheng, IJ A087 638 581 

### 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **29 th**  **day of August, two thousand sixteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **DENNIS JACOBS,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HAI HE HUANG,** 13 Petitioner **,** 14 15 **v. 14-4711** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Henry Zhang, Zhang & Associates, 23 P.C., New York, New York. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal 26 Deputy Assistant Attorney 27 General; Paul Fiorino, Senior 28 Litigation Counsel; Judith R. 29 O’Sullivan, Trial Attorney, 30 Office of Immigration Litigation, 312 United States Department of 1 Justice, Washington, D.C. 2 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review is 6

DENIED. 7 Petitioner Hai He Huang, a n ative and citizen of China, 8 seeks review of a December 3, 2014, decision of the BIA, 9 affirming a December 27, 2012, decision of an Immigration Judge 10 (“IJ”) denying Huang’s application for asylum, withholding of 11 removal, and relief under the Convention Against Torture 12 (“CAT”). In re Hai He Huang, No. A087 638 581 (B.I.A. Dec. 3, 13 2014), aff’g No. A087 638 581 (Immig. Ct. N.Y. City Dec. 27, 14 2012). We assume the parties’ familiarity with the underlying 15 facts and procedural history in this case. 16 Under the circumstances of this case, we have reviewed the 17 IJ’s decision as modified by the BIA. See Xue Hong Yang v. U.S. 18 Dep’t of Justice , 426 F.3d 520, 522 (2d Cir. 2005). 19 Accordingly, we review only the agency’s adverse credibility 20 determination because the BIA explicitly declined to reach the 21 IJ’s alternative burden finding. Id . The standards of review 22 are well established. See Xiu Xia Lin v. Mukasey , 534 F.3d 162, 23 165 (2d Cir. 2008). 243 The agency may, “[c]onsidering the totality of the 1 circumstances,” base a credibility finding on an asylum 2 applicant’s “demeanor, candor, or responsiveness,” the 3 plausibility of his account, and inconsistencies in his 4 statements and other record evidence “without regard to 5 whether” those inconsistencies go “to the heart of the 6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 7 Lin , 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility 8 determination unless, from the totality of the circumstances, 9 it is plain that no reasonable fact-finder could make such an 10 adverse credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 11 Because “demeanor is paradigmatically the sort of evidence that 12 a fact-finder is best positioned to evaluate,” Li Zu Guan v. 13
INS , 453 F.3d 129, 140 (2d Cir. 2006), “[w]e give particular 14 deference to credibility determinations that are based on the 15 adjudicator’s observation of the applicant’s demeanor,” Jin 16 Chen v. U.S. Dep’t of Justice , 426 F.3d 104, 113 (2d Cir. 2005). 17 Further, “[a] petitioner must do more than offer a plausible 18 explanation for his inconsistent statements to secure relief; 19 he must demonstrate that a reasonable fact-finder would be 20 compelled to credit his testimony.” Majidi v. Gonzales , 430 21 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and 224 citations omitted) (emphasis in original). Substantial 1 evidence supports the agency’s determination that Huang was not 2 credible. 3 The agency reasonably relied on Huang’s demeanor. The 4 record supports the agency’s conclusion that Huang gave vague 5 and nonresponsive answers at times during his testimony. See 6 Jin Chen , 426 F.3d at 113. Moreover, we can be confident of 7 the demeanor finding because the agency’s examples of 8 inconsistent testimony bolster that finding and support the 9 adverse credibility determination as a whole. See Li Hua Lin 10 v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006) (“We 11 can be still more confident in our review of observations about 12 an applicant’s demeanor where, as he re, they are supported by 13 specific examples of inconsistent testimony.”); see Xiu Xia 14 Lin , 534 F.3d at 166-67. First, Huang initially omitted 15 testimony about his detention on direct and cross-examination, 16 including that he was forced to stand and face a wall for hours 17 during his detention only when questioned by the IJ. See Xiu 18 Xia Lin , 534 F.3d at 166 n.3 (“A n inconsistency and an omission 19 are, . . . functionally equivalent.). And, although he 20 testified that he was in a cell with three other people, he 21 omitted that fact from his asylum application. The agency also 225 reasonably relied on an addi tional inconsistency in Huang’s 1 documentary evidence, noting that the household registration 2 did not list any employment despite the fact that Huang 3 testified and stated in his asylum application that he had 4 operated a clothing manufacturing business from 1995 to 2007. 5 The agency was not required to accept Huang’s explanations for 6 these omissions and inconsistencies because his explanations 7 were themselves inconsistent and did not resolve the problems. 8 See Majidi , 430 F.3d at 80. 9 Apart from these findings, all of which support the adverse 10 credibility determination, the agency did make one problematic 11 finding. The IJ found Huang nonresponsive when asked how long 12 he had attended church in China; Huang responded that he left 13 China in September 2008. In his brief, Huang argues that the 14 IJ mischaracterized his testimony. Although Huang’s initial 15 response can be read as nonresponsive because he did not respond 16 with a specific range of dates, the record when read as a whole 17 does not support this incons istency finding. Nevertheless, 18 even absent this finding, the IJ’s adverse credibility 19 determination is supported by the demeanor and inconsistency 20 findings noted above. See Xiao Ji Chen v. U.S. Dep’t of 21 Justice , 471 F.3d 315, 339 (2d Cir. 2006) (holding that remand 226 is futile when we can “confidently predict” that the agency 1 would reach the same decision absent any errors). 2 Given the demeanor and inconsistency findings, 3 substantial evidence supports the agency’s adverse credibility 4 determination. See Xiu Xia Lin , 534 F.3d at 165-66. That 5 finding is dispositive of asylum, withholding of removal, and 6
CAT relief because all three claims are based on the same factual 7 predicate. See Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 8 2006). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our rev iew, any stay of removal 11 that the Court previously granted in this petition is VACATED, 12 and any pending motion for a stay of removal in this petition 13 is DISMISSED as moot. Any pending request for oral argument 14 in this petition is DENIED in accordance with Federal Rule of 15 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 16 34.1(b). 17
FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19