Filed: Nov. 24, 2015
Latest Update: Mar. 02, 2020
Summary: 13-2613 Huang v. Lynch BIA Segal, IJ A200 943 050 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 NOTAT
Summary: 13-2613 Huang v. Lynch BIA Segal, IJ A200 943 050 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 NOTATI..
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13-2613
Huang v. Lynch
BIA
Segal, IJ
A200 943 050
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 24th day of November, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 SHI HUANG,
14 Petitioner,
15
16 v. 13-2613
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Troy Nader Moslemi, Esq., Moslemi &
25 Associates, New York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General, Song Park, Senior
29 Litigation Counsel, Kimberly A.
1 Burdge, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, 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 Petitioner Shi Huang, a native and citizen of the
11 People’s Republic of China, seeks review of a June 12, 2013,
12 decision of the BIA affirming the October 11, 2011, decision
13 of an Immigration Judge (“IJ”), which denied his application
14 for asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Shi Huang, No.
16 A200 943 050 (B.I.A. June 12, 2013), aff’g No. A200 943 050
17 (Immig. Ct. N.Y. City Oct. 11, 2011). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as the final agency determination. See
22 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The
23 applicable standards of review are well established. See 8
24 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
25 513 (2d Cir. 2009).
2
1 Because Huang filed his asylum application in 2011, the
2 REAL ID Act applies in this case. See REAL ID Act of 2005,
3 Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 (2005)
4 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter of S-B-,
5 24 I. & N. Dec. 42, 45 (BIA 2006). For such asylum
6 applications, the agency may, considering the totality of
7 the circumstances, base a credibility finding on an asylum
8 applicant’s “demeanor, candor, or responsiveness,” the
9 plausibility of his or her account, and inconsistencies in
10 his or her statements, without regard to whether they go “to
11 the heart of the applicant’s claim.” See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
13 167 (2d Cir. 2008).
14 The agency’s adverse credibility finding is supported
15 by substantial evidence. Yanqin
Weng, 562 F.3d at 513; Xiu
16 Xia
Lin, 534 F.3d at 167. As the IJ found, Huang’s sworn
17 statement differed significantly from his credible fear
18 interview and asylum application. See Xiu Xia Lin,
534 F.3d
19 at 167 (providing that an IJ may support an adverse
20 credibility determination with “any inconsistency or
21 omission”). Huang stated initially that he left China
22 because his home was seized for development; he later stated
3
1 in his credible fear interview and asylum application that
2 he left China because he was arrested for practicing
3 Christianity. The IJ considered but rejected Huang’s
4 explanation that he was nervous and in a cold room when he
5 gave his sworn statement, but later prayed and decided to
6 tell the truth at the credible fear interview. The agency
7 was not required to credit this explanation. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d 77, 80-81
9 (2d Cir. 2005).
10 Huang argues that the IJ should not have relied on the
11 sworn statement because it was unreliable. As the IJ ruled,
12 a sworn statement taken at the border is comparable to an
13 airport interview, and an airport or border interview
14 statement may be relied upon when “it represents a
15 sufficiently accurate record of the alien’s statements.”
16 Ramsameachire v. Ashcroft,
357 F.3d 169, 179 (2d Cir. 2004).
17 Huang’s statement was given under circumstances that
18 comply with the safeguards we identified in Ramsameachire.
19 The border agent read a statement to Huang (identical to the
20 one read to Ramsameachire) stating that “U.S. law provides
21 protection to certain persons who face persecution” and that
22 Huang should say if he feared return to his home country.
4
1 Huang, who was provided an interpreter, confirmed that he
2 understood this statement. Huang was asked about a fear of
3 persecution, whether he had ever been arrested in China, and
4 follow-up questions. He was given an opportunity to provide
5 any other information he wished. The notes from the
6 interview were typed, and Huang signed each page. There is
7 no evidence, nor does Huang allege any problem with the
8 translator or understanding the questions. The sworn
9 statement taken at the border therefore has all the
10 necessary hallmarks of reliability, and the IJ was permitted
11 to rely upon this document when making her adverse
12 credibility finding. Ramsameachire, 357 F.3d at 182.
13 Because the only evidence of a threat to Huang’s life or
14 freedom depended upon his credibility, the adverse
15 credibility determination in this case necessarily precludes
16 success on his claims for asylum, withholding of removal,
17 and CAT relief. See Paul v. Gonzales,
444 F.3d 148, 156-57
18 (2d Cir. 2006).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, the pending motion
21 for a stay of removal in this petition is DISMISSED as moot.
22 Any pending request for oral argument in this petition is
23
5
1 DENIED in accordance with Federal Rule of Appellate
2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6
