11-5009

Huang v. Holder

BIA

Vomacka, IJ

A099 880 102

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 4th 4 day of November, two thousand thirteen.

5

6 PRESENT:

7 JON O. NEWMAN

8 JOHN M. WALKER, JR.,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges.

11 _____________________________________

12

13 ZHIPING HUANG,

14

15 Petitioner, 

16

17 v. 11-5009

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Lewis G. Hu, New York, NY. 

26

27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

28 Attorney General; Stephen J. Flynn,

29 Assistant Director; Annette M.
1 Wietecha, Office of Immigration

2 Litigation, United States Department

3 of Justice, Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Zhiping Huang, a native and citizen of the People’s

10 Republic of China, seeks review of an November 3, 2011,

11 decision of the BIA affirming the March 11, 2010, decision

12 of Immigration Judge (“IJ”) Alan Vomacka, which denied his

13 application for asylum, withholding of removal, and relief

14 under the Convention Against Torture (“CAT”). In re Zhiping

15 Huang, No. A099 880 102 (B.I.A. Nov. 3, 2011), aff’g No.

16 A099 880 102 (Immig. Ct. N.Y. City Mar. 11, 2010). We

17 assume the parties’ familiarity with the underlying facts

18 and procedural history in this case.

19 Under the circumstances of this case, we have reviewed

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

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

22 applicable standards of review are well-established. See

23 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

24 562 F.3d 510, 513 (2d Cir. 2009). Because Huang does not

2
1 challenge the agency’s determination that his asylum

2 application was untimely, we consider only the agency’s

3 denial of withholding of removal and CAT relief. 

4 For applications such as Huang’s, governed by the

5 amendments made to the Immigration and Nationality Act by

6 the REAL ID Act of 2005, the agency may, considering the

7 totality of the circumstances, base a credibility finding on

8 an applicant’s “demeanor, candor, or responsiveness,” the

9 plausibility of his account, and inconsistencies in his

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

11 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);

12 see 8 U.S.C. § 1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 534

13 F.3d 162, 167 (2d Cir. 2008). An agency’s credibility

14 determination, however, will not satisfy the substantial

15 evidence standard “when it is based entirely on flawed

16 reasoning, bald speculation, or conjecture.” Xiao Ji Chen

17 v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006). 

18 While the agency’s finding that Huang should have

19 mentioned his Falun Gong practice in his visa application

20 because it shares artistic similarities with his martial

21 arts practice is arguably impermissibly speculative, see

22 Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007),

3
1 remand is not warranted as the alternative bases for the

2 agency’s adverse credibility finding are supported by

3 substantial evidence and the totality of the circumstances

4 supports the adverse credibility determination. See Xiu Xia

5 Lin, 534 F.3d at 167; Xiao Ji Chen, 471 F.3d at 338-39. The

6 agency reasonably declined to credit Huang’s explanations

7 for why he sought advance parole to travel to China if he

8 feared the Chinese government because Huang gave conflicting

9 explanations, stating first that he wanted to travel to

10 China but his advance parole application was denied, and

11 then stating that he withdrew his travel application because

12 it was too dangerous to return to China. See Majidi v.

13 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need

14 not credit an applicant’s explanations for inconsistent

15 testimony unless those explanations would compel a

16 reasonable fact-finder to do so). The adverse credibility

17 determination is further supported by the IJ’s demeanor

18 finding, which was based in part on Huang’s inconsistency,

19 as well as on additional observations of non-responsive

20 answers, and we defer to that finding. See Li Hua Lin v.

21 U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). 

22

4
1 Finally, the agency does not err in relying on a lack

2 of corroboration as grounds for an adverse credibility

3 determination where, as in this case, the alien’s

4 credibility already has been called into question. See Biao

5 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Because

6 Huang did not challenge the IJ’s corroboration finding

7 before the BIA and does not challenge it here, the finding

8 stands as a valid basis for the adverse credibility

9 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146-

10 47 (2d Cir. 2008). 

11 Therefore, given the inconsistent explanations, the

12 IJ’s demeanor finding, and the lack of corroboration, the

13 totality of the circumstances supports the agency’s adverse

14 credibility determination. See 8 U.S.C.

15 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

16 at 167. Because the only evidence of a threat to Huang’s

17 life or freedom depended upon his credibility, the adverse

18 credibility determination necessarily precludes success on

19 his claims for both withholding of removal and CAT relief. 

20 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue

21 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d

22 Cir. 2005). 

23

5
1 For the foregoing reasons, the petition for review is

2 DENIED. Any pending request for oral argument in this

3 petition is DENIED in accordance with Federal Rule of

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

5 34.1(b).

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

8

9

6