13-4794 Heng v. Lynch BIA Videla, IJ A087 592 715 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 3 rd** **day of December, two thousand fifteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **PETER W. HALL,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **HUANG HENG,** 13 Petitioner**,** 14 15 **v. 13-4794** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL, 1**  19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, NY.** 23

1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr.1 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 2 **General; Jennifer Williams, Senior** 3 **Litigation Counsel; Lance L. Jolley,** 4 **Trial Attorney, Office of** 5 **Immigration Litigation, United** 6 **States Department of Justice,** 7 **Washington, D.C.** 8 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Huang Heng, a native and citizen of the People’s 14 Republic of China, seeks review of a December 4, 2013, 15 decision of the BIA affirming the August 13, 2012, decision 16 of an Immigration Judge (“IJ”) denying his application for 17 asylum, withholding of removal, and relief under the 18 Convention Against Torture (“CAT”). In re Huang Heng, No. 19 A087 592 715 (B.I.A. Dec. 4, 2013),aff’gNo. A087 592 715 20 (Immig. Ct. N.Y. City Aug. 13, 2012). We assume the 21 parties’ familiarity with the underlying facts and 22 procedural history in this case. 23 Under the circumstances of this case, we have reviewed 24 the IJ’s decision, including the portions not explicitly 25 discussed by the BIA. Guan v. Gonzales , 432 F.3d 391, 394 26 (2d Cir. 2005). The applicable standards of review are well 27

2established. See8 U.S.C. § 1252(b)(4)(B);Weng v. Holder, 1 562 F.3d 510, 513 (2d Cir. 2009). 2 For asylum applications like Heng’s, governed by the 3 REAL ID Act of 2005, the agency may, “[c]onsidering the 4 totality of the circumstances,” base a credibility finding 5 on an asylum applicant’s “demeanor, candor, or 6 responsiveness,” the plausibility of his account, and 7 inconsistencies in his statements, without regard to whether 8 they go “to the heart of the applicant’s claim,” so long as 9 they reasonably support an inference that the applicant is 10 not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu 11 Xia Lin v. Mukasey,534 F.3d 162, 167 (2d Cir. 2008) (per 12 curiam). We defer to an IJ’s credibility finding “unless, 13 from the totality of the circumstances, it is plain that no 14 reasonable fact-finder could make” such a ruling. Xiu Xia 15 Lin , 534 F.3d at 167. Here, the agency reasonably based its 16 adverse credibility finding on inconsistencies between 17 Heng’s credible fear interview and testimony before the IJ. 18 Heng testified before the IJ that in February 2009, 19 Chinese police arrested him when he was practicing Falun 20 Gong at the home of a fellow practitioner. He was released 21 after twelve days. Upon release he went home and, in the 22

3months that followed, the police often came to his home to 1 ask him if he could provide information about other Falun 2 Gong members. In April 2009, he hosted a gathering of Falun 3 Gong practitioners at his home. The police arrived, and 4 Heng fled to a friend’s house, where he stayed for about two 5 months until he left for the United States. While he was 6 staying at his friend’s home, he learned that on the day he 7 fled, the police arrested his parents. 8 In contrast, in his credible fear interview, Heng 9 stated that he was arrested in February 2009 at his own 10 home, and that after he was released, he went directly to 11 his friend’s house, and then left for the United States ten 12 days later. When asked if anything else happened to him 13 after the initial arrest, Heng stated, “Nothing because I 14 left the country after my release.” Certified 15 Administrative Record at 640. He also stated that after he 16 left China, the police detained his parents for one week. 17 During proceedings, the IJ asked Heng if he understood 18 the interpreter at his interview, and Heng answered that he 19 did. The IJ then took Heng through the inconsistencies 20 between his credible fear interview and his testimony point 21 by point, asking Heng to explain why his answers were 22

4different. Heng first stated that his prior answers must 1 have been mistranslated, and then answered that he did not 2 know. 3 When discrepancies arise from an applicant’s statements 4 in a credible fear interview, we closely examine the 5 interview report to ensure that it represents a 6 “sufficiently accurate record” to be considered to determine 7 whether the applicant is credible. Ming Zhang v. Holder , 8 585 F.3d 715, 722-25 (2d Cir. 2009) (quoting Ramsameachire 9 v. Ashcroft , 357 F.3d 169, 179-80 (2d Cir. 2004) (discussing 10 factors for assessing accuracy)). Heng does not argue that 11 his credible fear interview was unreliable. Further, the 12 interview bears sufficient indicia of reliability because: 13 proceedings were memorialized in a typewritten document 14 setting forth the questions and responses; the interview was 15 conducted with the aid of an interpreter whom Heng testified 16 he had understood; and Heng was asked questions clearly 17 designed to elicit a basis for asylum. See id . at 725. 18 During the merits hearing, the IJ read to Heng portions of 19 the credible fear interview, and Heng initially confirmed 20 that the interview was accurate; it was not until the IJ 21 pointed out the inconsistencies that Heng suggested it had 22 been mistranslated. The agency reasonably declined to 23
5accept this explanation. See Majidi v. Gonzales , 430 F.3d 1 77, 80-81 (2d Cir. 2005). 2 The REAL ID Act allows the agency to base a credibility 3 finding on any inconsistency, without regard to whether it 4 goes “to the heart of the applicant’s claim.” 8 U.S.C. 5 § 1158(b)(1)(B)(iii). In this case, however, the agency 6 identified material inconsistencies in a part of Heng’s 7 claim “that served as an example of the very persecution 8 from which he sought asylum.” Ye v. Dep't of Homeland Sec. , 9 446 F.3d 289, 295 (2d Cir. 2006)(internal quotation marks 10 omitted). Accordingly, substantial evidence supports the 11 agency’s finding. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 12 Lin , 534 F.3d at 167. Because the only evidence of a threat 13 to Heng’s life or freedom depended upon his credibility, the 14 finding necessarily precludes success on Heng’s claims for 15 asylum, withholding of removal, and CAT relief. See Paul v. 16 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our review, any stay of 19 removal that the Court previously granted in this petition 20 is VACATED, and any pending motion for a stay of removal in 21 this petition is DISMISSED as moot. Any pending request for 22 oral argument in this petition is DENIED in accordance with 23 6Federal Rule of Appellate Procedure 34(a)(2), and Second 1 Circuit Local Rule 34.1(b). 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6

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