     18-3113
     Huang v. Barr
                                                                                   BIA
                                                                           Thompson, IJ
                                                                           A087 638 531
                          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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 24th day of June, two thousand twenty.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD J. SULLIVAN,
10            STEVEN J. MENASHI,
11                 Circuit Judges.
12   _____________________________________
13
14   WENTING HUANG,
15            Petitioner,
16
17                   v.                                          18-3113
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Gary J. Yerman, New York, NY.
25
26   FOR RESPONDENT:                  Joseph H. Hunt, Assistant Attorney
27                                    General; Anthony P. Nicastro,
28                                    Assistant Director; Jonathan
29                                    Robbins, Senior Litigation
30                                    Counsel; Nello DeSimone, Law
31                                    Clerk, Office of Immigration
 1                                   Litigation, United States
 2                                   Department of Justice, Washington,
 3                                   DC.

 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         Petitioner Wenting Huang, a native and citizen of the

 9   People’s Republic of China, seeks review of a September 21,

10   2018, decision of the BIA affirming an October 24, 2017,

11   decision   of    an   Immigration   Judge     (“IJ”)   denying   Huang’s

12   application for asylum, withholding of removal, and relief

13   under the Convention Against Torture (“CAT”).             In re Wenting

14   Huang, No. A087 638 531 (B.I.A. Sept. 21, 2018), aff’g No.

15   A087 638 531 (Immig. Ct. N.Y. City Oct. 24, 2017).            We assume

16   the   parties’    familiarity    with   the    underlying    facts   and

17   procedural history.

18         Under the circumstances, we have reviewed the decision

19   of the IJ as supplemented by the BIA.                  See Yan Chen v.

20   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).              The applicable

21   standards of review are well established.                 See 8 U.S.C.

22   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

23   (2d Cir. 2018).
                                         2
 1       “Considering the totality of the circumstances, and all

 2   relevant factors, a trier of fact may base a credibility

 3   determination on the demeanor, candor, or responsiveness of

 4   the applicant or witness, . . . the consistency between the

 5   applicant’s or witness’s written and oral statements . . . ,

 6   the internal consistency of each such statement . . . without

 7   regard to whether an inconsistency, inaccuracy, or falsehood

 8   goes to the heart of the applicant’s claim, or any other

 9   relevant factor.”     8 U.S.C. § 1158(b)(1)(B)(iii); see also

10   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008).

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

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

13   reasonable fact-finder could make such an adverse credibility

14   ruling.”   Xiu Xia Lin, 534 F.3d at 167; accord Hong Fei Gao,

15   891 F.3d at 76.     Substantial evidence supports the agency’s

16   determination that Huang was not credible as to his claim

17   that he was detained and beaten for attending an unregistered

18   church in China.

19       The agency reasonably relied in part on Huang’s demeanor,

20   noting that he became hesitant and unresponsive on cross-

21   examination   and   that   he   provided   shifting   answers   when


                                       3
 1   confronted             with       inconsistencies.                  See      8 U.S.C.

 2   § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 81 n.1

 3   (2d Cir. 2005) (recognizing that particular deference is

 4   given to the trier of fact’s assessment of demeanor).                              Huang

 5   did not exhaust and waives any challenge to the demeanor

 6   finding; because that finding is supported by the record, it

 7   stands       as    a     valid    basis        for    the    adverse      credibility

 8   determination.            See 8 U.S.C. § 1158(b)(1)(B)(iii); see also

 9   Shunfu Li v. Mukasey, 529 F.3d 141, 146–47 (2d Cir. 2008).

10          The        demeanor        finding        and        overall       credibility

11   determination            are     bolstered       by     record      inconsistencies

12   regarding         whether      Huang     was    attending      a    regular     church

13   service       or       another    church        activity     when       arrested    and

14   regarding the date on which he was released from detention.

15   See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

16   Cir. 2006) (“We can be still more confident in our review of

17   observations about an applicant’s demeanor where, as here,

18   they    are       supported      by    specific       examples     of    inconsistent

19   testimony.”).             Huang    did    not     compellingly        explain      these

20   inconsistencies.              See Majidi, 430 F.3d at 80 (“A petitioner

21   must do more than offer a plausible explanation for his


                                                 4
 1   inconsistent statements to secure relief; he must demonstrate

 2   that a reasonable fact-finder would be compelled to credit

 3   his testimony.” (internal quotation marks omitted)).

 4         Having     questioned       Huang’s       credibility,      the     agency

 5   reasonably relied further on his failure to rehabilitate his

 6   testimony      with    his    parents’       testimony.     “An   applicant’s

 7   failure to corroborate his or her testimony may bear on

 8   credibility, because the absence of corroboration in general

9    makes an applicant unable to rehabilitate testimony that has

10   already been called into question.”                 Biao Yang v. Gonzales,

11   496 F.3d 268, 273 (2d Cir. 2007).                When asked why he did not

12   present his parents’ testimony given that they were living in

13   New   Jersey,    Huang       stated   that     he   did   not   think   it   was

14   necessary because he is independent and that he did not want

15   to expose them to such an experience.                The IJ did not err in

16   rejecting      these    explanations          because     his   parents      were

17   witnesses to his alleged persecution, having purportedly paid

18   for his release from detention and driven him from the police

19   station to the hospital upon his release, and his parents

20   were involved in their own asylum proceedings and thus did

21   not need shielding from the experience of testifying.                         Cf.


                                              5
 1   Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011)

 2   (finding it reasonable to reject an applicant’s argument that

 3   her husband was unavailable to testify on her behalf in asylum

 4   proceedings where her husband “had a common interest in her

 5   presenting the strongest possible case” and an “incentive to

 6   appear on her behalf”).

 7        Given     the        agency’s    demeanor,       inconsistency,     and

 8   corroboration findings, its adverse credibility determination

 9   is   supported       by    substantial     evidence.        See   8 U.S.C.

10   § 1158(b)(1)(B)(iii).           That determination is dispositive of

11   asylum, withholding of removal, and CAT relief because all

12   three claims are based on the same factual predicate.                    See

13   Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

14        There is no merit to Huang’s argument that the BIA

15   violated     due   process      by   ignoring   his    argument   that   his

16   father’s     letter       was   incorrectly     translated.       The    BIA

17   considered that argument and reasonably found it unpersuasive

18   given Huang’s failure to submit a corrected translation.                 See

19   Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (“To

20   establish a violation of due process, an alien must show that

21   []he was denied a full and fair opportunity to present h[is]


                                            6
 1   claims    or     that   [he    was]    otherwise      deprived    .    .   .    of

 2   fundamental fairness.” (internal quotation marks omitted)).

 3   Huang     also    fails   to    establish       the   requisite       prejudice

 4   because, even if his father’s letter were translated so that

 5   it was consistent with Huang’s other evidence as to the date

 6   of   Huang’s       release      from        detention,   Huang        testified

 7   inconsistently on that issue and the IJ made other findings

 8   that supported the adverse credibility determination.                          See

 9   Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)

10   (“Parties claiming denial of due process in immigration cases

11   must, in order to prevail, allege some cognizable prejudice

12   fairly attributable to the challenged process.” (internal

13   quotation marks omitted)).

14        For the foregoing reasons, the petition for review is

15   DENIED.    All pending motions and applications are DENIED and

16   stays VACATED.

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




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