13-2156

Huang v. Lynch

BIA

Poczter, IJ

A200 236 668

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 3rd 4 day of March, two thousand sixteen.

5

6 PRESENT:

7 JON O. NEWMAN,

8 PETER W. HALL,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _____________________________________

12

13 BIN HUANG,

14 Petitioner, 

15

16 v. 13-2156

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Mona Liza F. Lao, New York, New

24 York. 

25

26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant

27 Attorney General; John W. Blakeley,

28 Acting Assistant Director; Francis

29 W. Fraser, Senior Litigation

30 Counsel; Office of Immigration
1 Litigation, United States Department

2 of Justice, 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 Bin Huang, a native and citizen of the

9 People’s Republic of China, seeks review of an April 30,

10 2013, decision of the BIA affirming the August 6, 2012,

11 decision of an Immigration Judge (“IJ”), which denied his

12 application for asylum, withholding of removal, and relief

13 under the Convention Against Torture (“CAT”), and his motion

14 for a continuance. In re Bin Huang, No. A200 236 668

15 (B.I.A. Apr. 30, 2013), aff’g No. A200 236 668 (Immig. Ct.

16 N.Y. City Aug. 6, 2012). We assume the parties’ familiarity

17 with the underlying facts and procedural history in this

18 case.

19 Under the circumstances of this case, we have reviewed

20 the IJ’s decision as supplemented by the BIA. Yan Chen v.

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

22 standards of review are well established. See 8 U.S.C.

23 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

24 510, 513 (2d Cir. 2009). 

2
1 I. Adverse Credibility Determination

2 For asylum applications such as Huang’s, which are

3 governed by the REAL ID Act, the agency may, considering the

4 totality of the circumstances, base a credibility finding on

5 an asylum applicant’s “demeanor, candor, or responsiveness,”

6 the plausibility of his account, and inconsistencies in his

7 statements, without regard to whether they go “to the heart

8 of the applicant’s claim.” See 8 U.S.C.

9 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

10 167 (2d Cir. 2008). 

11 The agency’s adverse credibility finding is supported

12 by substantial evidence. The IJ properly relied on Huang’s

13 inconsistencies and implausible testimony to find a lack of

14 credibility. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

15 Lin, 534 F.3d at 167.

16 Huang testified that Chinese police detained and beat

17 him because he worshiped at a house church, and that the

18 beating was so severe that he was unable to work for the

19 next year. However, he did not mention this inability to

20 work in his asylum application, and it is not mentioned in

21 the letter his mother wrote in support of his application. 

22 Huang further testified that police officers visited his

3
1 parents’ house every two or three months looking for him,

2 but neither his application nor his mother’s letter

3 indicates that officers visited more than once.

4 To explain these discrepancies, Huang testified that he

5 did not think that his inability to work for a year was

6 important when preparing his application, and that he did

7 not tell his parents that he was unable to work. He also

8 testified that he thought his mother’s letter, which stated

9 that police officers had come looking for him, was

10 sufficiently detailed. None of these explanations compels a

11 reasonable fact-finder to credit it. Majidi v. Gonzales,

12 430 F.3d 77, 80-81 (2d Cir. 2005).

13 The IJ similarly did not err in finding implausible

14 Huang’s testimony that he never sought medical treatment for

15 injuries so severe that he was allegedly unable to work for

16 a year after they were inflicted. This finding is “tethered

17 to record evidence” and based on common sense, and therefore

18 we do not disturb it. Siewe v. Gonzales, 480 F.3d 160, 168-

19 69 (2d Cir. 2007).

20 The IJ found that Huang’s sparse corroborating evidence

21 did not rehabilitate his incredible testimony. Biao Yang v.

22 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ also

4
1 found that Huang had failed to provide reasonably available

2 evidence regarding his religious activities, both in China

3 and in the United States, most importantly testimony or an

4 affidavit from his wife. These findings were supported by

5 substantial evidence. See 8 U.S.C. § 1252(b)(4); Xiao Ji

6 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341, 342 (2d

7 Cir. 2006); Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d

8 Cir. 2011). Huang argues that a failure to corroborate, on

9 its own, may not be the basis of an adverse credibility

10 determination, Xiao Ji Chen, 471 F.3d at 341, but here the

11 IJ found Huang incredible not solely on that basis.

12 Because the only evidence of a threat to Huang’s life

13 or freedom depended upon his credibility, the adverse

14 credibility determination in this case necessarily precludes

15 success on his claims for asylum, withholding of removal,

16 and relief under the CAT. See Paul v. Gonzales, 444 F.3d

17 148, 156-57 (2d Cir. 2006). 

18 II. Denial of Continuance

19 We review the agency’s denial of a continuance for

20 abuse of discretion. Sanusi v. Gonzales, 445 F.3d 193, 199

21 (2d Cir. 2006). An abuse of discretion occurs “if (1) [a]

22 decision rests on an error of law (such as the application

23 of the wrong legal principle) or a clearly erroneous factual

5
1 finding[;] or (2) [a] decision–though not necessarily the

2 product of a legal error or a clearly erroneous factual

3 finding–cannot be located within the range of permissible

4 decisions.” Morgan v. Gonzales, 445 F.3d 548, 551-52 (2d

5 Cir. 2006). The IJ did not abuse her discretion in denying

6 Huang’s motion for a continuance because Huang had

7 sufficient time before his merits hearing to procure

8 witnesses. Cf. Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d

9 Cir. 2009) (“[T]he alien bears the ultimate burden of

10 introducing [corroborating] evidence without prompting from

11 the IJ”).

12 For the foregoing reasons, the petition for review is

13 DENIED. Any pending request for oral argument in this

14 petition is DENIED in accordance with Federal Rule of

15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

16 34.1(b).

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19

6