10-3807-ag Huang v. Holder BIA Balasquide, IJ A098 975 216 

### 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 22 nd** **day of November, two thousand eleven.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **JOSÉ A. CABRANES,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **DUANYING HUANG,** 13 Petitioner**,** 14 15 **v. 10-3807-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: WaiSim M. Cheung, Tsoi and** 23 **Associates, New York, New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Blair T. O’Connor,** 27 **Assistant Director; Ari Nazarov,** 28 **Trial Attorney, Office of** 29 **Immigration Litigation, Civil** 30 **Division, United States Department** 31 **of Justice, Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Duanying Huang, a native and citizen of the 5 People’s Republic of China, seeks review of an August 25, 6 2010, order of the BIA affirming the October 23, 2008, 7 decision of an Immigration Judge (“IJ”) denying his 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re 10 Duanying Huang, No. A098 975 216 (B.I.A. Aug. 25, 2010), 11 aff’gNo. A098 975 216 (Immig. Ct. N.Y. City Oct. 23, 2008). 12 We assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as supplemented by the BIA. See Yan Chen 16 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 17 applicable standards of review are well-established. See 18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 19 510, 513 (2d Cir. 2009). Because Huang only challenges the 20 agency’s conclusion that she did not establish past 21 persecution we address only the agency’s adverse credibility 223 determination. Under the REAL ID Act, which applies in this 1 case, the agency may, considering the totality of the 2 circumstances, base a credibility finding on inconsistencies 3 in an applicant’s statements or between his or her 4 statements and other evidence in the record, without regard 5 to whether they go “to the heart of the applicant’s claim.” 6 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer to an IJ’s 7 credibility determination unless, from the totality of the 8 circumstances, it is plain that no reasonable fact-finder 9 could make such an adverse credibility ruling.” Xiu Xia Lin 10 v. Mukasey, 534 F. 3d 162, 167 (2d Cir. 2008). 11 We agree with Huang that some of the IJ’s inconsistency 12 findings were flawed. The IJ erred in finding that Huang 13 testified inconsistently regarding whether her intrauterine 14 device (“IUD”) was removed in her house or at the office of 15 a private physician without presenting “specific, cogent 16 reasons” for rejecting her translator’s explanation that 17 there was no inconsistency because Huang had used the word 18 “home” to mean “hometown.” See Zhi Wei Pang v. Bureau of 19 Citizenship & Immig. Servs. , 448 F.3d 102, 108 (2d Cir. 20 2006). Moreover, contrary to the IJ’s finding, there were 21 no inconsistencies between Huang’s testimony and her 224 supporting documents: Her gynecological examination 1 certificate, which indicated that the last exam she attended 2 was on September 15, 2003, was consistent with her testimony 3 that she did not go to any checkups after that date. No 4 evidence in the record indicated that her “floating 5 population certificate” should mention her March 2004 6 forcible abortion because the certificate was issued in 2002 7 and had not been updated since being issued. Huang’s March 8 16, 2004, fine for a delayed gynecological checkup was not 9 inconsistent with her testimony that her pregnancy was 10 forcibly terminated on March 15, 2004; rather it 11 corroborated Huang’s testimony that she had missed checkups 12 before the abortion. And Huang’s certificate for 13 voluntarily agreeing to raise only one child, received in 14 May 2003, was not inconsistent with her testimony that she 15 later had a second pregnancy. 16 However, despite these flaws the agency’s adverse 17 credibility determination was supported by substantial 18 evidence and remand is not necessary because “we can state 19 with confidence that the [agency] would adhere to [its] 20 decision were the petition remanded.” Xiao Ji Chen v. U.S. 21 Dep’t of Justice , 434 F.3d 144, 161 (2d Cir. 2006). As 225 Huang concedes, she gave inconsistent testimony regarding 1 whether she had a single IUD between 1998 and 2006 and the 2 IJ was not required to accept her explanation that she was 3 confused. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 4 2005). Further, as the BIA found, Huang’s credibility was 5 undermined by “the discrepancy between [her] claim that she 6 received an abortion certificate following her forced 7 abortion and [a State Department Country Report stating] 8 United States authorities are unaware of any so-called 9 abortion certificates and that the only document that might 10 resemble such a certificate . . . is a document issued by 11 hospitals upon a patient’s request after a voluntary 12 abortion.” Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d 13 Cir. 2007) (finding no error in adverse credibility 14 determination based in part on alien’s presentation of an 15 abortion certificate). 16 Huang argues that she was deprived of due process by 17 the BIA’s reliance on that State Department report which was 18 not in the record. However, while it “would have been 19 preferable for the BIA to have advised [Huang] of its intent 20 to consider the [report] and to have afforded [her] an 21 opportunity to respond thereto,” its failure to do so did 226 not result in a violation of due process requiring remand 1 because the report was not the sole basis for the agency’s 2 credibility determination, but confirmed the agency’s 3 disposition of the case. Jian Hui Shao v. Mukasey, 546 F.3d 4 138, 167-68 (2d Cir. 2008). Moreover, Huang has not 5 indicated any basis for refuting the significance of the 6 report if her case were remanded. 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, any stay of 9 removal that the Court previously granted in this petition 10 is VACATED, and any pending motion for a stay of removal in 11 this petition is DISMISSED as moot. Any pending request for 12 oral argument in this petition is DENIED in accordance with 13 Federal Rule of Appellate Procedure 34(a)(2), and Second 14 Circuit Local Rule 34.1(b). 15

FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 19