      12-194
      Huang v. Holder
                                                                                     BIA
                                                                              Vomacka, IJ
                                                                             A095 833 981
                             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 Daniel Patrick Moynihan
 3    United States Courthouse, 500 Pearl Street, in the City of
 4    New York, on the 28th day of August, two thousand twelve.
 5
 6    PRESENT:
 7             JON O. NEWMAN,
 8             JOSÉ A. CABRANES,
 9             ROBERT D. SACK,
10                  Circuit Judges.
11    _______________________________________
12
13    MEIZI HUANG,
14             Petitioner,
15
16                      v.                                   12-194
17                                                           NAC
18    ERIC H. HOLDER, JR., UNITED STATES
19    ATTORNEY GENERAL,
20             Respondent.
21    _______________________________________
22
23    FOR PETITIONER:                Jie Han, New York, New Yor
24
25    FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                   Attorney General; Richard M. Evans,
27                                   Assistant Director, Christina B.
28                                   Parascandola, Trial Attorney, Shuchi
 1                           Parikh, Law Clerk, Office of
 2                           Immigration Litigation, United States
 3                           Department of Justice, Washington,
 4                           D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Meizi Huang, a native and citizen of the People’s

11   Republic of China, seeks review of a December 14, 2011,

12   order of the BIA, affirming the September 18, 2009, decision

13   of Immigration Judge (“IJ”) Alan A. Vomacka, which denied

14   her application for asylum, withholding of removal, and

15   relief under the Convention Against Torture (“CAT”).

16   In re Meizi Huang, No. A095 833 981 (B.I.A. Dec. 14, 2011),

17   aff’g No. A095 833 981 (Immig. Ct. N.Y. City Sept. 18,

18   2009).   We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       As a preliminary matter, because Huang did not

21   challenge the IJ’s pretermission of her asylum application

22   before either the BIA or this Court, she has abandoned that

23   claim. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d

24   Cir. 2007) (per curiam) (deeming arguments not raised before

25   the BIA and this Court abandoned).

                                   2
 1       When, as here, the BIA affirms the IJ’s decision in

 2   some respects, but not others, we review the IJ’s decision

 3   as modified by the BIA decision, i.e., minus the arguments

 4   for denying relief that were rejected by the BIA.     See Xue

 5   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

 6   Cir. 2005).    The applicable standards of review are well-

 7   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

 8   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 9       In pre-REAL ID Act cases, such as this one,

10   inconsistencies that form the basis of an adverse

11   credibility determination    must “bear a legitimate nexus” to

12   the applicant’s claim of persecution and be “substantial”

13   when measured against the record as a whole.

14   Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003);

15   Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006).     An IJ,

16   however, may rely on the cumulative effect of even minor

17   inconsistencies.    See Tu Lin v. Gonzales, 446 F.3d 395, 402

18   (2d Cir. 2006); Liang Chen v. U.S. Attorney Gen., 454 F.3d

19   103, 106-107 (2d Cir. 2006) (per curiam).

20       Substantial evidence supports the agency’s conclusion

21   that Huang did not testify credibly regarding her claim that

22   Chinese family planning officials forcibly aborted two of


                                    3
 1   her pregnancies.   In finding Huang not credible, the agency

 2   reasonably relied on Huang’s failure to provide a consistent

 3   account of when her two abortion certificates had been

 4   issued, and her inability to confidently recall whether she

 5   had been anesthetized during her first alleged abortion

 6   procedure.   This information related to the heart of Huang’s

 7   claim.   See Secaida-Rosales, 331 F.3d at 307-08; Pavlova,

 8   441 F.3d at 90.

 9       In addition, the consular investigation report that the

10   government submitted called into question the authenticity

11   of Huang’s abortion certificates, and thus further

12   undermined the credibility of Huang’s claim that she had

13   undergone two forced abortions.   Indeed, as the agency

14   found, while Haung’s abortion certificates indicated that

15   they had been issued in 2004 and that Huang’s abortion

16   procedures had been performed in 1986 and 1989, the consular

17   investigation report indicated that the hospital listed on

18   the abortion certificates was “not allowed to issue a

19   certificate for an operation conducted years ago,” and that

20   the doctor who allegedly signed the certificates stated that

21   she “she had never issued any [such] certificate[s].”

22   Furthermore, Huang’s challenge to the reliability of the


                                   4
 1   consular investigation report is unavailing, as that report

 2   bears sufficient indicia of reliability to support the

 3   agency’s adverse credibility determination, such as the

 4   identity and qualifications of the investigator, the

 5   objective and extent of the investigation, and the methods

 6   the investigator used to verify the authenticity of Huang’s

 7   abortion certificates.     See Zhen Nan Lin v. U.S. Dep’t of

 8   Justice, 459 F.3d 255, 271 (2d Cir.#2006).

 9       Finally, contrary to Huang’s argument, the record does

10   not compel the conclusion that the manner in which the

11   investigator conducted her inquiry disclosed to Chinese

12   authorities Huang’s identity or the nature of the

13   investigation.     See 8 C.F.R. § 208.6; see also Zhen Nan Lin,

14   459 F.3d at 262.    Indeed, the record indicates that the

15   investigator was aware of the confidentiality provisions

16   under 8 C.F.R. § 208.6, and, as the IJ noted, that the

17   government took steps to safeguard Huang’s identity by

18   redacting her name from the documents that were transmitted

19   to its investigative office in China.     See 8 C.F.R. § 208.6;

20   Zhen Nan Lin, 459 F.3d at 263.

21       Thus, the agency’s denial of Huang’s application for

22   withholding of removal and CAT relief based on her claim

23   that she suffered past harm and feared future harm on
                                     5
 1   account of her alleged violation of China’s family planning

 2   policy was not in error, as both claims shared the same

 3   factual predicate.   See Paul v. Gonzales, 444 F.3d 148, 156

 4   (2d Cir. 2006).

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

 8   is VACATED, and any pending motion for a stay of removal in

 9   this petition is DISMISSED as moot. Any pending request for

10   oral argument in this petition is DENIED in accordance with

11   Federal Rule of Appellate Procedure 34(a)(2), and Second

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk




                                     6
