Filed: Dec. 03, 2015
Latest Update: Mar. 02, 2020
Summary: 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 NOTAT
Summary: 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 NOTATI..
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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
7
