18

- 3113 Huang v. Barr BIA Thompson , IJ A 087 638 531 

### 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**  **ELE CTRONIC 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**  1 **for the Second Circuit, held at the Thurgood Marshall**  2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **4 t**  **h da**  **y of J**  **u n**  **e , two thousand**  **twenty .**  4 5 **PRESENT:** 6 **ROBERT A. KATZMANN**  **,** 7 **C hief**  **Judge ,**  8 **RICHARD J. SULLIVAN ,**  9 **STEVEN J. MENASHI ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **WENTING HUANG ,**  14 **Petitioner ,**  15 16
**v. 18** 
**- 3113**  17 **NAC** 18 **WILLIAM P. BARR, UNITED STATES**  19 **ATTORNEY GENERAL ,**  20 **Respondent .**  21

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

. 24 25 **FOR RESPONDENT:** Joseph H. Hun t , Assistant Attorney 26 General ; Anthony P. Nicastro , 27 Assistant Director; Jonathan 28 Robbins , Senior Litigation 29 Counsel; Nello DeSimone , Law 30 Clerk, Office of Immigration 312 Litigation, United States 1 Department of Justice, Washington, 2 D C. 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 petitio n for review 6

is DENIED

. 7

Petitioner Wenting Huang , a native and citizen of the 8
People’s Republic of China , seeks review of a September 21 , 9

2018 , decision of the BIA affirming a n October 24 , 2017 , 10

decision of a n Immigration Judge (“IJ”) denying Huang’s 11
application for asylum, withholding of removal, and relief 12
under the Convention Against Torture (“CAT”). In re Wenting 13

Huang , No. A 087 638 531 (B.I.A. Sept. 21 , 2018 ), aff’g No. 14

A 087 638 531 (Immig. Ct. N.Y. City Oct. 24 , 2017 ). We assume 15
the parties’ familiarity with the underlying facts and 16
procedural history. 17
Under the circumstances, we have review ed the decision 18
of the IJ as supplemented by the BIA. See Yan Chen v. 19

Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The applicable 20

standards of review are well est ablished. See 8 U.S.C. 21

§ 1252(b)(4)(B); Hong Fei Gao v. Sessions , 891 F.3d 67, 76 22

(2d Cir. 2018). 233 “Considering the totality of the circumstances, and all 1

relevant facto rs, a trier of fact may base a credibility 2
determination on the demeanor, candor, or responsiveness of 3
the applicant or witness,

. . . the consistency between the 4
applicant’s or witness’s written and oral statements . . . , 5
the internal consistency of each such statement . . . without 6
regard to whether an inconsistency, inaccuracy, or falsehood 7
goes to the heart of the applicant’s claim , or any other 8

relevant factor .” 8 U.S.C. § 1158(b)(1)(B)(iii); see also 9
Xiu Xia Lin v. Mukasey , 534 F.3d 162, 163

– 64 (2d Cir. 2008). 10

“We defer . . . to an IJ’s credibility determination unless, 11
from the totality of the circumstances, it is plain that no 12

reasonable fact

- finder could make such an adverse credibility 13
ruling.” Xiu Xia Lin , 534 F.3d a t 167; accord Hong Fei Gao , 14

891 F.3d at 76. Substantial evidence supports the agency’s 15

determination that Huang was not credible as to his claim 16

that he was detained and beaten for attending an unregistered 17

church in China

. 18
The agency reasonably relied in part on Huang’s demeanor, 19
noting that he became hesitant and unresponsive on cross

20
examination and that he provided shifting answers when 214 confronted with inconsistencies

. See 8 U.S.C. 1

§ 1158(b)(1)(B)(iii); Majidi v. Gonzales , 430 F.3d 77, 81 n.1 2

(2d Ci r. 2005) (recognizing that particular deference is 3
given to the trier of fact’s assessment of demeanor). Huang 4

did not exhaust and waives any challenge to the demeanor 5
finding ; because that finding is supported by the record, it 6
stands as a valid basis for the adverse credibility 7

determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also 8
Shunfu Li v. Mukasey , 529 F.3d 141, 146

– 47 (2d Cir. 2008). 9

The demeanor finding and overall credibility 10
determination are bolstered by record inconsistencies 11
regarding whether Huang was attending a regular church 12
service or another church activity when arrested and 13
regarding the date on which he was released from detention

. 14

S ee Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d 15

Cir. 2006) (“ We can be still more confident in our review of 16
observations about an applicant ’ s demeanor where, as here, 17
they are supported by specific examples of inconsistent 18
testimony. ”)

. Hua ng did not compelling ly explain these 19

inconsistencies

. See Majidi , 430 F.3d at 80 (“A petitioner 20
must do more than offer a plausible explanation for his 215 inconsistent statements to secure relief; he must demonstrate 1

that a reasonable fact

- finder would be c ompelled to credit 2
his testimony.” (internal quotation marks omitted)). 3
Having questioned Huang’s credibility, the agency 4
reasonably relied further on his failure to rehabilitate his 5
testimony with his parents’ testimony . “An applicant’s 6
failure to corroborate his or her testimony may bear on 7
credibility, because the absence of corroboration in general 8
makes an applicant unable to rehabilitate testimony that has 9
already been called into question.” Biao Yang v. Gonzales , 10
496 F.3d 268, 273 (2d Cir. 2007). When asked why he did not 11
present his parents’ testimony given that they were living in 12

New Jersey , Huang stated that he did not think it was 13
necessary because he is independent and that he did not want 14
to expose them to such an experience . The IJ did not err in 15
rejecting these explanations because his parents were 16

witnesses to his alleged persecution, having purportedly paid 17
for his release from detention and driven him from the police 18
station to the hospital upon his r elease, and his parents 19
were involved in their own asylum proceedings and thus did 20
not need shielding from the experience of testifying

. C f. 216 Yan Juan Chen v. Holder , 658 F.3d 246, 253 (2d Cir. 2011) 1
(finding it reasonable to reject a n applicant’s argument that 2
her husband was unavailable to testify on her behalf in asylum 3
proceedings where her husband “had a common interest in her 4
presenting the strongest possible case” and an “incentive to 5
appear on her behalf” ). 6

Given the agency’s de meanor , inconsistency, and 7
corroboration findings, its adverse credibility determination 8
is supported by substantial evidence. See 8 U.S.C. 9

§ 1158(b)(1)(B)(iii). That determination is dispositive of 10
asylum, withholding of removal, and CAT re lief because all 11
three claims are based on the same factual predicate. See 12

Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d Cir. 2006). 13
There is no merit to Huang’s argument that the BIA 14
violated due process by ignoring his argument that his 15

father’s letter was incorrectly translated

. T he BIA 16
considered that argument and reasonably found it unpersuasive 17
given Huang’s failure to submit a corrected translation. See 18
Burger v. Gonzales , 498 F.3d 131, 134 (2d Cir. 2007) ( “To 19

establish a violatio n of due process, an alien must show that 20
[]he was denied a full and fair opportunity to present h[is] 217 claims or that [he was] otherwise deprived . . . of 1
fundamental fairness.” (internal quotation marks omitted) )

. 2
Huang also fails to establish the requis ite prejudice 3
because, even if his father’s letter were translated so that 4

it was consistent with Huang’s other evidence as to the date 5
of Huang’s release from detention, Huang testified 6
inconsistently on that issue and the IJ made other findings 7
that supp orted the adverse credibility determination. See 8

Garcia

- Villeda v. Mukasey , 531 F.3d 141, 149 (2d Cir. 2008) 9

( “Parties claiming denial of due process in immigration cases 10
must, in order to prevail, allege some cognizable prejudice 11
fairly attributable to the challenged process.” ( internal 12
quotation marks omitted) )

. 13
For the foregoing reasons, the petition for review is 14

DENIED

. All pending motions and applications are DENIED and 15

stays VACATED. 16

FOR THE COURT: 17 Catherine O ’ Hagan Wolfe , 18 Clerk of Court 19