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. 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 22 nd** **day of October, two thousand thirteen.** 4 5 **PRESENT:** 6 7 **JOSÉ A. CABRANES,** 8 **RAYMOND J. LOHIER,** 9 **SUSAN L. CARNEY,** 10 Circuit Judges **.** 11

**_______________________________________** 12 13 **YING HUANG,** 14 Petitioner**,** 15 16 **v. 12-4541** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_______________________________________** 22 23 **FOR PETITIONER: Gary J. Yerman, New York, New York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Jennifer Williams,** 27 **Senior Litigation Counsel; Lance L.** 28 **Jolley, Trial Attorney, Office of** 29**Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Ying Huang, a native and citizen of the 9 People’s Republic of China, seeks review ofan October 26, 10 2012 decision of the BIA affirming the March 4, 2011 11 decision of an Immigration Judge (“IJ”), which denied her 12 application for asylum, withholding of removal, and relief 13 under the Convention Against Torture (“CAT”). In re Ying 14 Huang, No. A089 096 094 (B.I.A. Oct. 26, 2012), aff’gNo. 15 A089 096 094 (Immig. Ct. N.Y. City Mar. 4, 2011). We assume 16 the parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 Under the circumstances of this case, we review the 19 IJ’s decision as supplemented by the BIA. See Yan Chen v. 20 Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The applicable 21 standards of review are well-established. See8 U.S.C. 22 § 1252(b)(4)(B);see also Yanqin Weng v. Holder , 562 F.3d 23 510, 513 (2d Cir. 2009). For applications such as Huang’s, 24

2governed by the amendments made to the Immigration and 1 Nationality Act by the REAL ID Act of 2005, the agency may, 2 “[c]onsidering the totality of the circumstances . . . base 3 a credibility determination on the demeanor, candor, or 4 responsiveness of the applicant or witness, the inherent 5 plausibility of [his or her] account,” and inconsistencies 6 in her statements, “without regard to whether . . . [they 7 go] to the heart of the applicant’s claim.” See 8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 9 F.3d 162, 167 (2d Cir. 2008) (per curiam). 10 Huang’s arguments that the agency erred in not 11 distinguishing between its factual findings and legal 12 determinations , and that the credible fear notes are 13 unreliable, were not raised below and are unexhausted. See 14 Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 119-20 (2d 15 Cir. 2007) (requiring a petitioner to raise each argument 16 before the BIA). Even were we to consider these arguments, 17 however, Huang points to no error that resulted from the 18 agency’s failure to state whether its findings werelegal or 19 factual, and the credible fear notes appear reliable. See 20 Ming Zhang v. Holder , 585 F.3d 715, 724 (2d Cir. 2009). 21

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3The agency’s determination that Huang was not credible 1 is supported by substantial evidence. Yanqin Weng, 562 F.3d 2
at 513; Xiu Xia Lin , 534 F.3d at 167. Huang’s claim at the 3 credible fear interview was significantly different from 4 that detailed in her asylum application. See Xiu Xia Lin , 5 534 F.3d at 167 (holding that an IJ may support an adverse 6 credibility determination with “any inconsistency or 7 omission”). Furthermore, the IJ considered but rejected 8 Huang’s explanation that her claim at the credible fear 9 interview was created and delivered at the direction of her 10 smuggler. Instead, Huang attempted to have an individual 11 identified as her “uncle” answer whether she had suffered 12 persecution in China. Huang, however, testified that she 13 did not speak to the “uncle” often, so he would not know 14 about her claims. This explanation, even if considered 15 plausible, did not have to be credited by the agency. See 8 16 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales , 430 F.3d 17 77, 80-81 (2d Cir. 2005). Furthermore, the discrepancy was 18 central to her claim, and properly constituted a basis for 19 an adverse credibility finding. See Xiu Xia Lin , 534 F.3d 20
at 167;Majidi , 430 F.3d at 81. Contrary to Huang’s 21 argument, the agency did consider the totality of the 22

4circumstances bearing on her credibility, as the IJ pointed 1 out other inconsistencies and considered the documentary 2 evidence. Xiu Xia Lin , 534 F.3d at 167. 3 In finding Huang not credible, the IJ also reasonably 4 relied on the lack of corroboration for her testimony. See 5 Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An 6 applicant’s failure to corroborate his or her testimony may 7 bear on credibility, because the absence of corroboration in 8 general makes an applicant unable to rehabilitate testimony 9 that has already been called into question.”). Here, the IJ 10 noted that the letters from Huang’s mother, boyfriend, and 11 church in China were not authenticated in any way; the BIA 12 correctly stated that they were from interested witnesses 13 not subject to cross-examination and drafted for litigation 14

purposes. See Matter of H–L–H- & Z–Y–Z– , 25 I. & N. Dec. 15 209, 215 (BIA 2010),abrogated on other grounds by Lin Huang 16 v. Holder , 677 F.3d 130 (2d Cir. 2012). In addition, the 17 agency correctly noted that the letter from Huang’s church 18 in China made no mention of any persecution, and her medical 19 records did not demonstrate that her abortion was forced. 20 The weight afforded to an applicant’s evidence in 21 immigration proceedings “lies largely within the discretion” 22 of the agency. Xiao Ji Chen v. U.S. Dep’t of Justice , 471 23 5F.3d 315, 342 (2d Cir. 2006) (internal quotations and 1 alteration omitted). The agency’s adverse credibility 2 determination is supported by substantial evidence, and 3 Huang’s challenge fails. Xiu Xia Lin , 534 F.3d at 167. 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, the pending motion 6 for a stay of removal in this petition is DISMISSED as moot. 7
FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10

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