20-453 Huang v. Garland BIA Loprest, IJ A205 216 718 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 13th day of January, two thousand twenty- 5 two. 6 7 PRESENT: 8 SUSAN L. CARNEY, 9 RICHARD J. SULLIVAN, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 ZHI YONG HUANG, 15 Petitioner, 16 17 v. 20-453 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Adedayo O. Idowu, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Holly 1 M. Smith, Senior Litigation 2 Counsel; Brett F. Kinney, 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 is DENIED.

11 Petitioner, Zhi Yong Huang, a native and citizen of the

12 People’s Republic of China, seeks review of a January 15,

13 2020, decision of the BIA affirming a May 1, 2018, decision

14 of an Immigration Judge (“IJ”) denying Huang’s application

15 for asylum, withholding of removal, and relief under the

16 Convention Against Torture (“CAT”). In re Zhi Yong Huang,

17 No. A205 216 718 (B.I.A. Jan. 15, 2020), aff’g No. A205 216

18 718 (Immig. Ct. N.Y. City May 1, 2018). We assume the

19 parties’ familiarity with the underlying facts and procedural

20 history.

21 We have reviewed the IJ’s decision as supplemented and

22 modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of

23 Justice,

(2d Cir. 2005); Yan Chen v.

24 Gonzales,

(2d Cir. 2005). We do not reach

2 1 Huang’s challenge to the IJ’s denial of his asylum claim as

2 untimely because the BIA did not affirm the IJ’s decision on

3 that basis. Xue Hong Yang,

. We review the

4 dispositive adverse credibility determination for substantial

5 evidence. See

(b)(4)(B); Hong Fei Gao v.

6 Sessions,

(2d Cir. 2018).

7 “Considering the totality of the circumstances, and all

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

9 determination on the demeanor, candor, or responsiveness of

10 the applicant . . . , the consistency between the applicant’s

11 or witness’s written and oral statements . . . , the internal

12 consistency of each such statement, [and] the consistency of

13 such statements with other evidence of record . . . .”

14

(b)(1)(B)(iii). “We defer . . . to an IJ’s

15 credibility determination unless, from the totality of the

16 circumstances, it is plain that no reasonable fact-finder

17 could make such an adverse credibility ruling.” Xiu Xia

18 Lin v. Mukasey,

(2d Cir. 2008).

19 Substantial evidence supports the adverse credibility

20 determination.

21 The agency reasonably relied on Huang’s internally

3 1 inconsistent testimony regarding the frequency and timing of

2 the beatings that allegedly occurred during his detention and

3 whether his employer informed his mother that he was detained.

4 See

(b)(1)(B)(iii). These inconsistencies

5 provide strong support for the adverse credibility

6 determination because they relate to the sole incident of

7 alleged persecution – his detention. Xian Tuan Ye v. Dep't

8 of Homeland Sec.,

(2d Cir. 2006). The

9 agency was not required to credit Huang’s explanations

10 because they did not resolve the inconsistencies, see

11 Majidi v. Gonzales,

, 80–81 (2d Cir. 2005); and

12 Huang did not submit a corroborating statement from his

13 mother, see Biao Yang v. Gonzales,

(2d Cir.

14 2007).

15 The adverse credibility determination is bolstered by

16 the IJ’s demeanor finding, see

(b)(1)(B)(iii),

17 particularly as the record reflects where the IJ noted pauses

18 in Huang’s testimony. “We give particular deference” to that

19 finding, Jin Chen v. U.S. Dep’t of Justice,

, 113

20 (2d Cir. 2005), because an IJ is in the “best position to

21 discern . . . whether a witness who hesitated in a response

4 1 was nevertheless attempting truthfully to recount what he

2 recalled . . . or struggling to remember the lines of a

3 carefully crafted script,” Majidi,

n.1

4 (internal quotation marks omitted).

5 Given Huang’s inconsistent statements and the deference

6 we accord the demeanor finding, substantial evidence supports

7 the IJ’s adverse credibility determination. See Xiu Xia Lin,

8 534 F.3d at 165–66. Contrary to Huang’s argument that he

9 stated a CAT claim, the adverse credibility determination is

10 dispositive of asylum, withholding of removal, and CAT relief

11 because all three claims are based on the same factual

12 predicate. See Paul v. Gonzales,

, 156–57 (2d

13 Cir. 2006).

14 Huang also raised a due process claim before the agency,

15 arguing that the IJ’s recollection of the hearing was

16 compromised because the IJ issued his written decision three

17 years after the hearing. But he did not adequately raise

18 this argument on appeal and thus has failed to preserve it

19 for our review. See Tolbert v. Queens College,

,

20 75 (2d Cir. 2000).

21

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

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

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

6