Huang v. Garland

H
    18-2393
   Huang v. Garland
                                                                            BIA
                                                                      Brennan, IJ
                                                                    A206 064 047
                           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 TO 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
   for the Second Circuit, held at the Thurgood Marshall United
   States Courthouse, 40 Foley Square, in the City of New York,
   on the 22nd day of March, two thousand twenty-one.

   PRESENT:
            SUSAN L. CARNEY,
            MICHAEL H. PARK,
            WILLIAM J. NARDINI,
                 Circuit Judges.
   _____________________________________

   ZHIZONG HUANG,
            Petitioner,

                      v.                                  18-2393
                                                          NAC
   MERRICK B. GARLAND, UNITED
   STATES ATTORNEY GENERAL,
            Respondent. 1
   _____________________________________

   FOR PETITIONER:                    David A. Bredin, Esq., Flushing,
                                      NY.

   FOR RESPONDENT:                    Jennifer P. Levings, Senior
                                      Litigation Counsel; Laura Halliday

   1 The Clerk of Court is respectfully directed to amend the caption as
   set forth above.
                             Hickein, Trial Attorney, Office of
                             Immigration Litigation, United
                             States Department of Justice,
                             Washington, DC.

     UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

     Petitioner Zhizong Huang, a native and citizen of the

People’s Republic of China, seeks review of a July 19, 2018

decision of the BIA affirming an August 8, 2017 decision of

an Immigration Judge (“IJ”) denying Huang’s application for

asylum,   withholding   of   removal,   and   relief   under   the

Convention Against Torture (“CAT”).     In re Zhizong Huang, No.

A 206 064 047 (B.I.A. July 19, 2018), aff’g No. A 206 064 047

(Immig. Ct. N.Y. City Aug. 8, 2017).      We assume the parties’

familiarity with the underlying facts and procedural history

to which we refer only as needed to explain our decision to

deny the petition.

     Under the circumstances of this case, we review both the

IJ’s and the BIA’s decisions.     See Yun-Zui Guan v. Gonzales,

432 F.3d 391

, 394 (2d Cir. 2005).       The applicable standards

of   review    are      well-established.        See     8 U.S.C.

§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 

891 F.3d 67

, 76
                             2
(2d Cir. 2018).         As 8 U.S.C. § 1158(b)(1)(B)(iii) provides:

      Considering the totality of the circumstances, and
      all relevant factors, a trier of fact may base a
      credibility determination on the demeanor, candor,
      or responsiveness of the applicant or witness, the
      inherent plausibility of the applicant’s or
      witness’s account, the consistency between the
      applicant’s   or   witness’s  written   and   oral
      statements . . . , the internal consistency of
      each such statement, the consistency of such
      statements with other evidence of record . . . ,
      without regard to whether an inconsistency,
      inaccuracy, or falsehood goes to the heart of the
      applicant’s claim, or any other relevant factor.

“We defer . . . to an IJ’s credibility determination unless,

from the totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse credibility

ruling.”    Xiu Xia Lin v. Mukasey, 

534 F.3d 162

, 167 (2d Cir.

2008); accord Hong Fei 

Gao, 891 F.3d at 76

.

      On review, we conclude that substantial evidence supports

the   agency’s     determination     that   Huang’s    claim       that    the

Chinese police were aware of his practice of Christianity in

the United States was not credible.

      As   an   initial    matter,    the   agency    did    not    err    in

determining      that   Huang’s    misrepresentation    during       a    visa

interview       undermined   his     credibility.           See    8 U.S.C.

§ 1158(b)(1)(B)(iii).         Although      the   agency     may    err     in

“penaliz[ing] an applicant for lying to escape a country where

                                     3
. . . []he faces persecution,” Rui Ying Lin v. Gonzales, 

445

F.3d 127

,    134   (2d   Cir.   2006),    Huang’s   misrepresentation

predated his asylum claim, which arose only after he began

practicing Christianity in the United States.

       Further, the agency reasonably relied on discrepancies

between Huang’s testimony and his documentary evidence.                See

8 U.S.C. § 1158(b)(1)(B)(iii).            Huang’s written statement was

inconsistent with his testimony as to when and how he was

introduced to the Christian church in the United States, and

his    friend    Kevin’s     letter   did    not   provide   details    to

corroborate Huang’s testimony.              Also, the two letters from

Wang, Huang’s friend in China to whom Huang sent a Bible,

were inconsistent about the date and some circumstances of

Wang’s arrest.        One letter stated that Wang and five others

were arrested in 2013 and their Bible was confiscated. The

second stated that the arrest occurred in 2012 and thereafter

Wang could read the Bible only at home.                 The IJ was not

required to credit Huang’s explanation for the discrepancy—

that Wang wrote a second letter because the Chinese government

visited him several times and that Wang used a date from the

Chinese calendar in the second letter—where Wang’s second

letter contradictorily stated that it was provided at the

                                      4
request of Huang’s mother and the explanation in any case did

not resolve the date discrepancy.                    See Majidi v. Gonzales,

430 F.3d 77

, 80 (2d Cir. 2005) (“A petitioner must do more

than    offer    a   plausible       explanation         for   his      inconsistent

statements to secure relief; he must demonstrate that a

reasonable      fact-finder      would         be   compelled      to    credit   his

testimony.” (quotation marks omitted)).

       Additionally, the two letters from Huang’s mother were

inconsistent with each other and with Huang’s application.

Her first letter reported that Chinese authorities called her

on the telephone looking for her son, a report that conflicts

with    statements     made     in   Huang’s         application.        Her   second

letter appears simply to have been revised from the first to

be consistent with the statement in Huang’s application that

the    authorities     confronted          her      in   person.         The   agency

reasonably       relied    on    the       cumulative          effect     of    these

inconsistencies in reaching a negative assessment of Huang’s

credibility.         See Liang Chen v. U.S. Att’y Gen., 

454 F.3d

103

, 106-07 (2d Cir. 2006).

       These    findings   and       the       overall    adverse        credibility

determination are bolstered by the agency’s negative demeanor

finding.       We give particular deference to the IJ’s demeanor

                                           5
determination because only the IJ has the ability to observe

the witness.     See 

Majidi, 430 F.3d at 81

n.1.             Here, the IJ

found that Huang appeared both reluctant and evasive when

responding to questions about his sending the Bible to Wang

in China, and about why he sent money along with the Bible.

Since Huang admitted this was the only time he provided any

financial support to Wang, we see a reasonable basis for the

IJ’s skepticism about Huang’s testimony that he was not paying

for the letters.       See Siewe v. Gonzales, 

480 F.3d 160

, 167

(2d Cir. 2007) (“‘Where there are two permissible views of

the evidence, the factfinder’s choice between them cannot be

clearly erroneous.’” (quoting Anderson v. Bessemer City, 

470

U.S. 564

, 574 (1985))).

      Having a sound basis for questioning Huang’s credibility,

the   agency    reasonably   relied     further   on   his    failure   to

rehabilitate     his   testimony       with   reliable   corroborating

evidence.      “An applicant’s failure to corroborate . . . may

bear on credibility, because the absence of corroboration in

general makes an applicant unable to rehabilitate testimony

that has already been called into question.”                 Biao Yang v.

Gonzales, 

496 F.3d 268

, 273 (2d Cir. 2007).                    Given the

inconsistencies between the supporting letters and Huang’s

                                   6
own statements, and the fact that the other proffered letters

contained    only     very    general      information     that     failed    to

corroborate details of Huang’s introduction to or practice of

Christianity in the United States, the IJ reasonably found

the letters insufficient to rehabilitate Huang’s testimony.

     Nor did the IJ err in declining to give weight to the

report of Wang’s arrest in China, since its validity depended

on   the   credibility       of    both    Huang    and   Wang,     and   their

credibility had been called into question by inconsistencies

in their statements.          See Y.C. v. Holder, 

741 F.3d 324

, 332

(2d Cir. 2013) (“We generally defer to the agency’s evaluation

of the weight to be afforded an applicant’s                        documentary

evidence.”).        Further, he IJ reasonably accorded limited

weight to the testimony of Huang’s pastor in the United

States,     because     the       pastor    did     not    address    Huang’s

misrepresentation        when        obtaining       a     visa,     or      the

inconsistencies regarding Huang’s introduction to the church

or in how Huang secured his documents from China.

     Taken together, Huang’s misrepresentation when obtaining

a visa, the aforementioned inconsistencies, the IJ’s demeanor

finding, and the lack of reliable corroboration constitute

substantial     evidence          supporting       the    agency’s    adverse

                                       7
credibility ruling.        See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

Xia 

Lin, 534 F.3d at 166-67

.           Because they all rested on the

same      factual      predicate,         this   adverse    credibility

determination is dispositive of Huang’s claims for asylum,

withholding of removal, and CAT relief.               Paul v. Gonzales,

444 F.3d 148

,   156-57   (2d   Cir.    2006).   Finally,   as   the

Government points out, Huang failed to exhaust his argument

that his counsel’s withdrawal negatively influenced the IJ’s

decision.       See Lin Zhong v. U.S. Dep’t of Justice, 

480 F.3d

104

, 122 (2d Cir. 2007). He therefore may not pursue it here

on a petition for review.

       For the foregoing reasons, the petition for review is

DENIED.       All pending motions and applications are DENIED and

stays VACATED.

                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe,
                                     Clerk of Court




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