     14-2177
     Huang v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 926 271
                                                                               A205 218 835


                           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   5th day of May, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MEIQING HUANG, JINDING HUANG,
14            Petitioners,
15
16                    v.                                       14-2177
17                                                             NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.1
22   _____________________________________
23
24   FOR PETITIONERS:                Gregory G. Moratta, Vernon, NJ.

     1- Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Loretta E. Lynch is automatically substituted for former
     Attorney General Eric H. Holder, Jr.
 1
 2   FOR RESPONDENT:           Benjamin C. Mizer, Acting Assistant
 3                             Attorney General; Anthony C. Payne,
 4                             Assistant Director; Yedidya Cohen,
 5                             Trial Attorney; Jonathan K. Ross, Law
 6                             Clerk,    Office    of    Immigration
 7                             Litigation, United States Department
 8                             of Justice, Washington D.C.
 9
10        UPON DUE CONSIDERATION of this petition for review of a

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

12   ORDERED, ADJUDGED, AND DECREED that the petition for review is

13   DENIED.

14        Petitioners, both natives and citizens of China, seek

15   review of a June 5, 2014, decision of the BIA, affirming the

16   February 8, 2013, decision of an Immigration Judge (“IJ”), which

17   denied    Meiqing’s   application   for   asylum,   withholding   of

18   removal, and relief pursuant to the Convention Against Torture

19   (“CAT”).2   In re Meiqing, Jinding Huang, Nos. A200 926 271, A205

20   218 835 (B.I.A. June 5, 2014), aff’g Nos. A200 926 271, A205

21   218 835 (Immig. Ct. N.Y. City Feb. 8, 2013).         We assume the

22   parties’ familiarity with the underlying facts and procedural

23   history in this case.



     2
        Because Jinding Huang is listed as a derivative beneficiary of his
     wife’s asylum application, this order refers to Meiqing Huang.
                                       2
1          Under the circumstances of this case, we have reviewed both

2    the   decisions   of   the   IJ    and    the   BIA   “for    the   sake    of

 3   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

4    524, 528 (2d Cir. 2006).          The applicable standards of review

5    are well established.        See 8 U.S.C. § 1252(b)(4)(B); Yanqin

6    Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

7          For asylum applications like Meiqing’s, governed by the

8    REAL ID Act of 2005, the agency may, “[c]onsidering the totality

9    of the circumstances,” base a credibility determination on

10   inconsistencies in an asylum applicant’s statements and other

11   record    evidence,     “without         regard       to     whether”      the

12   inconsistencies go “to the heart of the applicant’s claim.”                  8

13   U.S.C. § 1158(b)(1)(B)(iii).             “We defer . . . to an IJ’s

14   credibility determination unless, from the totality of the

15   circumstances, it is plain that no reasonable fact-finder could

16   make such an adverse credibility ruling.”                  Xiu Xia Lin v.

17   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

18   Substantial evidence supports the agency’s adverse credibility

19   determination.

20         Initially, Meiqing asserts that she was denied due process

21   because the IJ admitted into evidence an asylum officer’s
                                          3
1    assessment to refer without the officer being called to testify.

2    The Federal Rules of Evidence and the heightened procedural

3    protections of a criminal trial do not apply to the admission

4    of documentary evidence in a removal proceeding.    See Felzcerek

5    v. INS, 75 F.3d 112, 115 (2d Cir. 1996).    Instead, evidence may

6    be admitted if it does not violate the alien’s right to due

7    process of law, that is, “if it is probative and its use is

8    fundamentally fair.”    Montero v. INS, 124 F.3d 381, 385-86 (2d

9    Cir. 1997).   Fairness in this context “is closely related to

10   the reliability and trustworthiness of the evidence.”       Id. at

11   386 (internal quotation marks omitted).    Given that Meiqing did

12   not (and does not now) question the reliability of the

13   assessment to refer, it was not error for the IJ to admit the

14   evidence without requiring the asylum officer to testify. 3

15   Thus, the IJ properly considered the assessment to refer and

16   reasonably found the following inconsistencies negatively

17   affected Meiqing’s credibility.

18        First, the agency reasonably relied on an inconsistency

19   concerning whether Meiqing had a medical exam following her


     3
        We note that, contrary to Meiqing’s assertion, the IJ did not
     consider the handwritten notes attached to the assessment to refer.
                                      4
1    alleged forced abortion.    Meiqing denied ever having a medical

2    exam in China following her forced abortion, but Jinding

3    testified that she did indeed return to the doctor for an

4    examination.

5        Second, the agency reasonably relied on inconsistencies

6    concerning Meiqing’s alleged abortion certificate.      Meiqing

7    testified that she was forced to have an abortion on November

8    3, 2010.   However, the abortion certificate itself reflected

9    that her abortion occurred on November 3, 2011, a year later.

10   Meiqing explained that the doctor had mistakenly recorded the

11   date, and that she was given the abortion certificate on the

12   day of her abortion.    Jinding, however, testified that he and

13   Meiqing were not given the abortion certificate in China and

14   did not even see it until Meiqing’s mother mailed it to them

15   in the United States.      And the agency reasonably relied on

16   inconsistencies concerning when the Petitioners discovered

17   that the certificate contained the wrong date.

18       The agency reasonably relied further on inconsistencies

19   regarding how many passports Meiqing had been issued, how many

20   times she had left China, whether her mother initially refused

21   to pay Meiqing’s fine, and where Meiqing lived when immigration
                                     5
1    proceedings were initiated.      The agency also reasonably

2    determined that the other record evidence failed to

3    rehabilitate Meiqing’s incredible testimony.     See Biao Yang v.

4    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

5         Given these findings, the totality of the circumstances

6    supports the agency’s adverse credibility determination.      See

7    Xiu Xia Lin, 534 F.3d at 167.   That determination is dispositive

8    of asylum, withholding of removal, and CAT relief as those

9    claims are based on the same factual predicate.          Paul v.

10   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

11        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

18   34.1(b).

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




                                      6
