         13-4794
         Heng v. Lynch
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A087 592 715
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 3rd day of December, two thousand fifteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       HUANG HENG,
14                Petitioner,
15
16                       v.                                     13-4794
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,1
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, New York, NY.


                     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:         Stuart F. Delery, Assistant Attorney
 3                           General; Jennifer Williams, Senior
 4                           Litigation Counsel; Lance L. Jolley,
 5                           Trial Attorney, Office of
 6                           Immigration Litigation, United
 7                           States Department of Justice,
 8                           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

13   is DENIED.

14       Huang Heng, a native and citizen of the People’s

15   Republic of China, seeks review of a December 4, 2013,

16   decision of the BIA affirming the August 13, 2012, decision

17   of an Immigration Judge (“IJ”) denying his application for

18   asylum, withholding of removal, and relief under the

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

20   A087 592 715 (B.I.A. Dec. 4, 2013), aff’g No. A087 592 715

21   (Immig. Ct. N.Y. City Aug. 13, 2012).    We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history in this case.

24       Under the circumstances of this case, we have reviewed

25   the IJ’s decision, including the portions not explicitly

26   discussed by the BIA.   Guan v. Gonzales, 432 F.3d 391, 394

27   (2d Cir. 2005).   The applicable standards of review are well

                                   2
 1   established.    See 8 U.S.C. § 1252(b)(4)(B); Weng v. Holder,

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

 3       For asylum applications like Heng’s, governed by the

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

 5   totality of the circumstances,” base a credibility finding

 6   on an asylum applicant’s “demeanor, candor, or

 7   responsiveness,” the plausibility of his account, and

 8   inconsistencies in his statements, without regard to whether

 9   they go “to the heart of the applicant’s claim,” so long as

10   they reasonably support an inference that the applicant is

11   not credible.    8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu

12   Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per

13   curiam).   We defer to an IJ’s credibility finding “unless,

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

15   reasonable fact-finder could make” such a ruling.    Xiu Xia

16   Lin, 534 F.3d at 167.   Here, the agency reasonably based its

17   adverse credibility finding on inconsistencies between

18   Heng’s credible fear interview and testimony before the IJ.

19       Heng testified before the IJ that in February 2009,

20   Chinese police arrested him when he was practicing Falun

21   Gong at the home of a fellow practitioner.   He was released

22   after twelve days.   Upon release he went home and, in the


                                    3
 1   months that followed, the police often came to his home to

 2   ask him if he could provide information about other Falun

 3   Gong members.     In April 2009, he hosted a gathering of Falun

 4   Gong practitioners at his home.       The police arrived, and

 5   Heng fled to a friend’s house, where he stayed for about two

 6   months until he left for the United States.       While he was

 7   staying at his friend’s home, he learned that on the day he

 8   fled, the police arrested his parents.

 9          In contrast, in his credible fear interview, Heng

10   stated that he was arrested in February 2009 at his own

11   home, and that after he was released, he went directly to

12   his friend’s house, and then left for the United States ten

13   days later.     When asked if anything else happened to him

14   after the initial arrest, Heng stated, “Nothing because I

15   left the country after my release.”       Certified

16   Administrative Record at 640.       He also stated that after he

17   left China, the police detained his parents for one week.

18          During proceedings, the IJ asked Heng if he understood

19   the interpreter at his interview, and Heng answered that he

20   did.    The IJ then took Heng through the inconsistencies

21   between his credible fear interview and his testimony point

22   by point, asking Heng to explain why his answers were



                                     4
 1   different.   Heng first stated that his prior answers must

 2   have been mistranslated, and then answered that he did not

 3   know.

 4       When discrepancies arise from an applicant’s statements

 5   in a credible fear interview, we closely examine the

 6   interview report to ensure that it represents a

 7   “sufficiently accurate record” to be considered to determine

 8   whether the applicant is credible.    Ming Zhang v. Holder,

 9   585 F.3d 715, 722-25 (2d Cir. 2009) (quoting Ramsameachire

10   v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir. 2004) (discussing

11   factors for assessing accuracy)).    Heng does not argue that

12   his credible fear interview was unreliable.    Further, the

13   interview bears sufficient indicia of reliability because:

14   proceedings were memorialized in a typewritten document

15   setting forth the questions and responses; the interview was

16   conducted with the aid of an interpreter whom Heng testified

17   he had understood; and Heng was asked questions clearly

18   designed to elicit a basis for asylum.    See id. at 725.

19   During the merits hearing, the IJ read to Heng portions of

20   the credible fear interview, and Heng initially confirmed

21   that the interview was accurate; it was not until the IJ

22   pointed out the inconsistencies that Heng suggested it had

23   been mistranslated.   The agency reasonably declined to

                                   5
 1   accept this explanation.     See Majidi v. Gonzales, 430 F.3d

 2   77, 80-81 (2d Cir. 2005).

 3       The REAL ID Act allows the agency to base a credibility

 4   finding on any inconsistency, without regard to whether it

 5   goes “to the heart of the applicant’s claim.”      8 U.S.C.

 6   § 1158(b)(1)(B)(iii).     In this case, however, the agency

 7   identified material inconsistencies in a part of Heng’s

 8   claim “that served as an example of the very persecution

 9   from which he sought asylum.”       Ye v. Dep't of Homeland Sec.,

10   446 F.3d 289, 295 (2d Cir. 2006)(internal quotation marks

11   omitted).     Accordingly, substantial evidence supports the

12   agency’s finding.     8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

13   Lin, 534 F.3d at 167.     Because the only evidence of a threat

14   to Heng’s life or freedom depended upon his credibility, the

15   finding necessarily precludes success on Heng’s claims for

16   asylum, withholding of removal, and CAT relief.       See Paul v.

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

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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

23   oral argument in this petition is DENIED in accordance with
                                     6
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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