     14-4711
     Huang v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 638 581

                           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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   29th day of August, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HAI HE HUANG,
14            Petitioner,
15
16                    v.                                             14-4711
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Henry Zhang, Zhang & Associates,
24                                         P.C., New York, New York.
25
26   FOR RESPONDENT:                       Benjamin C. Mizer, Principal
27                                         Deputy Assistant Attorney
28                                         General; Paul Fiorino, Senior
29                                         Litigation Counsel; Judith R.
30                                         O’Sullivan, Trial Attorney,
31                                         Office of Immigration Litigation,
1                                     United States Department of
2                                     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 is

7    DENIED.

8        Petitioner Hai He Huang, a native and citizen of China,

9    seeks review of a December 3, 2014, decision of the BIA,

10   affirming a December 27, 2012, decision of an Immigration Judge

11   (“IJ”) denying Huang’s application for asylum, withholding of

12   removal, and relief under the Convention Against Torture

13   (“CAT”).      In re Hai He Huang, No. A087 638 581 (B.I.A. Dec. 3,

14   2014), aff’g No. A087 638 581 (Immig. Ct. N.Y. City Dec. 27,

15   2012).    We assume the parties’ familiarity with the underlying

16   facts and procedural history in this case.

17       Under the circumstances of this case, we have reviewed the

18   IJ’s decision as modified by the BIA.         See Xue Hong Yang v. U.S.

19   Dep’t    of    Justice,   426   F.3d   520,    522   (2d   Cir.   2005).

20   Accordingly, we review only the agency’s adverse credibility

21   determination because the BIA explicitly declined to reach the

22   IJ’s alternative burden finding.        Id.    The standards of review

23   are well established.      See Xiu Xia Lin v. Mukasey, 534 F.3d 162,

24   165 (2d Cir. 2008).

                                        2
1        The    agency    may,    “[c]onsidering         the    totality       of   the

2    circumstances,”      base    a   credibility       finding      on   an   asylum

3    applicant’s    “demeanor,        candor,      or    responsiveness,”           the

4    plausibility    of   his     account,      and    inconsistencies         in   his

5    statements    and    other    record       evidence      “without    regard     to

6    whether”   those     inconsistencies         go    “to    the   heart     of   the

7    applicant’s claim.”         8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

8    Lin, 534 F.3d at 163-64.         “We defer . . . to an IJ’s credibility

9    determination unless, from the totality of the circumstances,

10   it is plain that no reasonable fact-finder could make such an

11   adverse credibility ruling.”            Xiu Xia Lin, 534 F.3d at 167.

12   Because “demeanor is paradigmatically the sort of evidence that

13   a fact-finder is best positioned to evaluate,” Li Zu Guan v.

14   INS, 453 F.3d 129, 140 (2d Cir. 2006), “[w]e give particular

15   deference to credibility determinations that are based on the

16   adjudicator’s observation of the applicant’s demeanor,” Jin

17   Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005).

18   Further, “[a] petitioner must do more than offer a plausible

19   explanation for his inconsistent statements to secure relief;

20   he must demonstrate that a reasonable fact-finder would be

21   compelled to credit his testimony.”                Majidi v. Gonzales, 430

22   F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and


                                            3
 1   citations   omitted)   (emphasis     in   original).      Substantial

 2   evidence supports the agency’s determination that Huang was not

 3   credible.

 4         The agency reasonably relied on Huang’s demeanor.             The

 5   record supports the agency’s conclusion that Huang gave vague

 6   and nonresponsive answers at times during his testimony.            See

 7   Jin Chen, 426 F.3d at 113.    Moreover, we can be confident of

 8   the   demeanor   finding   because    the   agency’s     examples    of

9    inconsistent testimony bolster that finding and support the

10   adverse credibility determination as a whole.          See Li Hua Lin

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

12   can be still more confident in our review of observations about

13   an applicant’s demeanor where, as here, they are supported by

14   specific examples of inconsistent testimony.”); see Xiu Xia

15   Lin, 534 F.3d at 166-67.       First, Huang initially omitted

16   testimony about his detention on direct and cross-examination,

17   including that he was forced to stand and face a wall for hours

18   during his detention only when questioned by the IJ.          See Xiu

19   Xia Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission

20   are, . . . functionally equivalent.).            And, although he

21   testified that he was in a cell with three other people, he

22   omitted that fact from his asylum application.         The agency also


                                     4
1    reasonably relied on an additional inconsistency in Huang’s

2    documentary evidence, noting that the household registration

3    did not list any employment despite the fact that Huang

4    testified and stated in his asylum application that he had

5    operated a clothing manufacturing business from 1995 to 2007.

6    The agency was not required to accept Huang’s explanations for

7    these omissions and inconsistencies because his explanations

8    were themselves inconsistent and did not resolve the problems.

9    See Majidi, 430 F.3d at 80.

10          Apart from these findings, all of which support the adverse

11   credibility determination, the agency did make one problematic

12   finding.    The IJ found Huang nonresponsive when asked how long

13   he had attended church in China; Huang responded that he left

14   China in September 2008.      In his brief, Huang argues that the

15   IJ mischaracterized his testimony.        Although Huang’s initial

16   response can be read as nonresponsive because he did not respond

17   with a specific range of dates, the record when read as a whole

18   does not support this inconsistency finding.          Nevertheless,

19   even    absent   this   finding,   the   IJ’s   adverse   credibility

20   determination is supported by the demeanor and inconsistency

21   findings noted above.       See Xiao Ji Chen v. U.S. Dep’t of

22   Justice, 471 F.3d 315, 339 (2d Cir. 2006) (holding that remand


                                        5
1    is futile when we can “confidently predict” that the agency

2    would reach the same decision absent any errors).

3          Given    the     demeanor    and   inconsistency   findings,

4    substantial evidence supports the agency’s adverse credibility

5    determination.       See Xiu Xia Lin, 534 F.3d at 165-66.     That

6    finding is dispositive of asylum, withholding of removal, and

7    CAT relief because all three claims are based on the same factual

8    predicate.    See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

9    2006).

10       For the foregoing reasons, the petition for review is

11   DENIED.    As we have completed our review, any stay of removal

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.      Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

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

17   34.1(b).

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




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