         11-5009
         Huang v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A099 880 102
                             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 4th day of November, two thousand thirteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN
 8                JOHN M. WALKER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       ZHIPING HUANG,
14
15                         Petitioner,
16
17                         v.                                   11-5009
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                  Lewis G. Hu, New York, NY.
26
27       FOR RESPONDENT:                  Stuart F. Delery, Acting Assistant
28                                        Attorney General; Stephen J. Flynn,
29                                        Assistant Director; Annette M.
 1                          Wietecha, Office of Immigration
 2                          Litigation, United States Department
 3                          of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Zhiping Huang, a native and citizen of the People’s

10   Republic of China, seeks review of an November 3, 2011,

11   decision of the BIA affirming the March 11, 2010, decision

12   of Immigration Judge (“IJ”) Alan Vomacka, which denied his

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).    In re Zhiping

15   Huang, No. A099 880 102 (B.I.A. Nov. 3, 2011), aff’g No.

16   A099 880 102 (Immig. Ct. N.Y. City Mar. 11, 2010).     We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   the IJ’s decision as supplemented by the BIA.    See Yan Chen

21   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

22   applicable standards of review are well-established.        See

23   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

24   562 F.3d 510, 513 (2d Cir. 2009).   Because Huang does not



                                  2
 1   challenge the agency’s determination that his asylum

 2   application was untimely, we consider only the agency’s

 3   denial of withholding of removal and CAT relief.

 4       For applications such as Huang’s, governed by the

 5   amendments made to the Immigration and Nationality Act by

 6   the REAL ID Act of 2005, the agency may, considering the

 7   totality of the circumstances, base a credibility finding on

 8   an applicant’s “demeanor, candor, or responsiveness,” the

 9   plausibility of his account, and inconsistencies in his

10   statements, without regard to whether they go “to the heart

11   of the applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii);

12   see 8 U.S.C. § 1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 534

13   F.3d 162, 167 (2d Cir. 2008).       An agency’s credibility

14   determination, however, will not satisfy the substantial

15   evidence standard “when it is based entirely on flawed

16   reasoning, bald speculation, or conjecture.”       Xiao Ji Chen

17   v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006).

18       While the agency’s finding that Huang should have

19   mentioned his Falun Gong practice in his visa application

20   because it shares artistic similarities with his martial

21   arts practice is arguably impermissibly speculative, see

22   Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007),


                                     3
 1   remand is not warranted as the alternative bases for the

 2   agency’s adverse credibility finding are supported by

 3   substantial evidence and the totality of the circumstances

 4   supports the adverse credibility determination.     See Xiu Xia

 5   Lin, 534 F.3d at 167; Xiao Ji Chen, 471 F.3d at 338-39.        The

 6   agency reasonably declined to credit Huang’s explanations

 7   for why he sought advance parole to travel to China if he

 8   feared the Chinese government because Huang gave conflicting

 9   explanations, stating first that he wanted to travel to

10   China but his advance parole application was denied, and

11   then stating that he withdrew his travel application because

12   it was too dangerous to return to China.     See Majidi v.

13   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need

14   not credit an applicant’s explanations for inconsistent

15   testimony unless those explanations would compel a

16   reasonable fact-finder to do so).   The adverse credibility

17   determination is further supported by the IJ’s demeanor

18   finding, which was based in part on Huang’s inconsistency,

19   as well as on additional observations of non-responsive

20   answers, and we defer to that finding.     See Li Hua Lin v.

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

22



                                  4
 1       Finally, the agency does not err in relying on a lack

 2   of corroboration as grounds for an adverse credibility

 3   determination where, as in this case, the alien’s

 4   credibility already has been called into question.    See Biao

 5   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).   Because

 6   Huang did not challenge the IJ’s corroboration finding

 7   before the BIA and does not challenge it here, the finding

 8   stands as a valid basis for the adverse credibility

 9   determination.   See Shunfu Li v. Mukasey, 529 F.3d 141, 146-

10   47 (2d Cir. 2008).

11       Therefore, given the inconsistent explanations, the

12   IJ’s demeanor finding, and the lack of corroboration, the

13   totality of the circumstances supports the agency’s adverse

14   credibility determination.   See 8 U.S.C.

15   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

16   at 167.   Because the only evidence of a threat to Huang’s

17   life or freedom depended upon his credibility, the adverse

18   credibility determination necessarily precludes success on

19   his claims for both withholding of removal and CAT relief.

20   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue

21   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d

22   Cir. 2005).

23
                                   5
1       For the foregoing reasons, the petition for review is

2   DENIED.    Any pending request for oral argument in this

3   petition is DENIED in accordance with Federal Rule of

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

5   34.1(b).

6                                FOR THE COURT:
7                                Catherine O’Hagan Wolfe, Clerk
8
9




                                   6
