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. 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 4 th** **day of November, two thousand thirteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN** 7 **JOHN M. WALKER, JR.,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges **.** 10

**_____________________________________** 11 12 **ZHIPING HUANG,** 13 14 Petitioner**,** 15 16 **v. 11-5009** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 21 Respondent **.** 22

**_____________________________________** 23 24 **FOR PETITIONER: Lewis G. Hu, New York, NY.** 25 26 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 27 **Attorney General; Stephen J. Flynn,** 28 **Assistant Director; Annette M.** 29**Wietecha, 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 Zhiping Huang, a native and citizen of the People’s 9 Republic of China, seeks review of an November 3, 2011, 10 decision of the BIA affirming the March 11, 2010, decision 11 of Immigration Judge (“IJ”) Alan Vomacka, which denied his 12 application for asylum, withholding of removal, and relief 13 under the Convention Against Torture (“CAT”). In re Zhiping 14 Huang , No. A099 880 102 (B.I.A. Nov. 3, 2011), aff’gNo. 15 A099 880 102 (Immig. Ct. N.Y. City Mar. 11, 2010). We 16 assume the parties’ familiarity with the underlying facts 17 and procedural history in this case. 18 Under the circumstances of this case, we have reviewed 19 the IJ’s decision as supplemented by the BIA. See Yan Chen 20 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 21 applicable standards of review are well-established. See 22 8 U.S.C. § 1252(b)(4)(B);see also Yanqin Weng v. Holder , 23 562 F.3d 510, 513 (2d Cir. 2009). Because Huang does not 24

2challenge the agency’s determination that his asylum 1 application was untimely, we consider only the agency’s 2 denial of withholding of removal and CAT relief. 3 For applications such as Huang’s, governed by the 4 amendments made to the Immigration and Nationality Act by 5 the REAL ID Act of 2005, the agency may, considering the 6 totality of the circumstances, base a credibility finding on 7 an applicant’s “demeanor, candor, or responsiveness,” the 8 plausibility of his account, and inconsistencies in his 9 statements, without regard to whether they go “to the heart 10 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); 11

see8 U.S.C. § 1231(b)(3)(C);Xiu Xia Lin v. Mukasey,534 12 F.3d 162, 167 (2d Cir. 2008). An agency’s credibility 13 determination, however, will not satisfy the substantial 14 evidence standard “when it is based entirely on flawed 15 reasoning, bald speculation, or conjecture.” Xiao Ji Chen 16 v. U.S. Dep’t of Justice , 471 F.3d 315, 335 (2d Cir. 2006). 17 While the agency’s finding that Huang should have 18 mentioned his Falun Gong practice in his visa application 19 because it shares artistic similarities with his martial 20 arts practice is arguably impermissibly speculative, see 21 Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007), 22

3remand is not warranted as the alternative bases for the 1 agency’s adverse credibility finding are supported by 2 substantial evidence and the totality of the circumstances 3 supports the adverse credibility determination. See Xiu Xia 4 Lin , 534 F.3d at 167;Xiao Ji Chen , 471 F.3d at 338-39. The 5 agency reasonably declined to credit Huang’s explanations 6 for why he sought advance parole to travel to China if he 7 feared the Chinese government because Huang gave conflicting 8 explanations, stating first that he wanted to travel to 9 China but his advance parole application was denied, and 10 then stating that he withdrew his travel application because 11 it was too dangerous to return to China. See Majidi v. 12 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need 13 not credit an applicant’s explanations for inconsistent 14 testimony unless those explanations would compel a 15 reasonable fact-finder to do so). The adverse credibility 16 determination is further supported by the IJ’s demeanor 17 finding, which was based in part on Huang’s inconsistency, 18 as well as on additional observations of non-responsive 19 answers, and we defer to that finding. See Li Hua Lin v. 20 U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006). 21

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4Finally, the agency does not err in relying on a lack 1 of corroboration as grounds for an adverse credibility 2 determination where, as in this case, the alien’s 3 credibility already has been called into question. See Biao 4 Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). Because 5 Huang did not challenge the IJ’s corroboration finding 6 before the BIA and does not challenge it here, the finding 7 stands as a valid basis for the adverse credibility 8 determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146- 9 47 (2d Cir. 2008). 10 Therefore, given the inconsistent explanations, the 11 IJ’s demeanor finding, and the lack of corroboration, the 12 totality of the circumstances supports the agency’s adverse 13 credibility determination. See8 U.S.C. 14 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin , 534 F.3d 15 at 167. Because the only evidence of a threat to Huang’s 16 life or freedom depended upon his credibility, the adverse 17 credibility determination necessarily precludes success on 18 his claims for both withholding of removal and CAT relief. 19 See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006); Xue 20 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d 21 Cir. 2005). 22

23 5For the foregoing reasons, the petition for review is 1 DENIED. Any pending request for oral argument in this 2 petition is DENIED in accordance with Federal Rule of 3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 4 34.1(b). 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9

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