23-6096 Huang v. Garland BIA Thompson, IJ A205 843 677

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of October, two thousand twenty-four.

PRESENT: JOSÉ A. CABRANES, MICHAEL H. PARK, ALISON J. NATHAN, Circuit Judges. _____________________________________

SHI QIN HUANG, Petitioner,

v. 23-6096 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: H. Esteban Figueroa-Brusi, Samokhleb & Bitterman Law Group, New York, NY. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Linda S. Wernery, Assistant Director; Thankful T. Vanderstar, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Shi Qin Huang, a native and citizen of the People’s Republic of

China, seeks review of a January 20, 2023, decision of the BIA affirming an October

9, 2019, decision of an Immigration Judge (“IJ”) denying his application for

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Shi Qin Huang, No. A 205 843 677 (B.I.A. Jan. 20, 2023), aff’g No. A

205 843 677 (Immig. Ct. N.Y. City Oct. 9, 2019). We assume the parties’ familiarity

with the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified by the BIA, i.e., minus the

IJ’s implausibility finding. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.4d 520,

522 (2d Cir. 2005). We review questions of law de novo, and we review factual

findings, including adverse credibility determinations, “under the substantial

evidence standard.” Hong Fei Gao v. Sessions,

(2d Cir. 2018). 2 “[T]he administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B).

“Considering the totality of the circumstances, and all relevant factors, a

trier of fact may base a credibility determination on the demeanor, candor, or

responsiveness of the applicant or witness, the inherent plausibility of the

applicant’s or witness’s account, the consistency between the applicant’s or

witness’s written and oral statements . . . , the internal consistency of each such

statement, the consistency of such statements with other evidence of

record . . . , and any inaccuracies or falsehoods in such statements, without regard

to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant’s claim, or any other relevant factor.”

(b)(1)(B)(iii). “We

defer . . . to an IJ’s credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

2008); accord Hong Fei Gao,

. Here, substantial evidence supports the

adverse credibility determination.

The agency reasonably relied on Huang’s inconsistent testimony regarding

3 when he first learned about Christianity. See

(b)(1)(B)(iii). Huang

initially testified that he first heard of Christianity in 2010, but a few questions

later, he responded that his father told him about Christianity in 2009. Huang

contends that the IJ failed to give him an opportunity to explain the inconsistency.

Even assuming this is a non-dramatic inconsistency that required an opportunity

for explanation, see Ming Shi Xue v. Bd. of Immigr. Appeals,

(2d Cir.

2006), the IJ gave Huang an opportunity to reconcile his testimony. At the end of

witness testimony, the IJ pointed out Huang’s inconsistent testimony as to when

he learned about Christianity and asked his counsel, “how would you have me

address his credibility.” Huang’s counsel argued that Huang’s statements that

he was nervous and could not remember dates from so long ago were compelling,

and did not ask for re-direct to clarify the issue with additional testimony. Thus,

Huang had an opportunity to address the discrepancy and “cannot avoid the

consequences of the acts or omissions of [his] freely selected [counsel].” Hoodho

v. Holder,

(2d Cir. 2009).

The agency also reasonably relied on inconsistencies as to when Huang

began attending church. He testified that he never attended church prior to

December 2010. But affidavits from his mother, neighbor, and cousin stated that

4 Huang’s father “often” took Huang to church, but it was not until Huang’s

grandmother died in December 2010 that Huang seemed interested in the church

services. Huang’s explanations for this inconsistency introduced additional

inconsistencies. He offered conflicting explanations that his father had tried to

convince him to attend, that he went but did not know it was a church, that his

cousin and neighbor were mistaken that he had gone, and that he went three times.

The agency did not err in rejecting Huang’s explanations for either

inconsistency. “A petitioner must do more than offer a plausible explanation for

his inconsistent statements to secure relief; he must demonstrate that a reasonable

fact-finder would be compelled to credit his testimony.” Majidi v. Gonzales,

(2d Cir. 2005) (quotation marks omitted). Huang’s explanations that

he was nervous and had a poor memory are not compelling or supported by the

record. He never testified that he had trouble remembering dates until after he

was confronted with inconsistencies. Huang now argues that these

inconsistencies were immaterial, and the agency gave them too much weight.

These arguments fail because the agency may rely on inconsistencies regardless of

whether they “go[] to the heart of the applicant’s claim,”

(b)(1)(B)(iii), and these did because Huang’s claim was premised on his

5 attendance at an unauthorized house church, see Singh v. Garland,

(2d Cir. 2021) (“The more serious the inconsistency – i.e., the greater the

importance of the fact upon which inconsistency is found for the success of the

petition and the more likely it is that a truthful account would not have included

the inconsistency – the more substantial that evidence is in casting doubt on the

petitioner’s credibility.”).

Huang’s remaining arguments lack merit. The record does not support his

claim that the BIA applied the wrong standard of review. The BIA identified the

correct standards and concluded that the IJ’s credibility determination was “not

clearly erroneous.” Huang points to the BIA’s decision not to rely on the IJ’s

implausibility finding as evidence it reviewed fact-finding de novo, but it is well-

settled that the BIA may affirm portions of an IJ’s decision. See Malets v. Garland,

, 53 (2d Cir. 2023) (reaffirming that we review an IJ’s adverse credibility

determination minus any grounds explicitly rejected by the BIA). The BIA’s

conclusion that the two other inconsistencies supported the adverse credibility

determination likewise does not exceed its authority or constitute de novo review.

See Belortaja v. Gonzales,

, 624–25 (2d Cir. 2007) (concluding that the

BIA’s “reevaluation of evidence obtained by the IJ previously” did not exceed the

6 BIA’s factfinding authority). Lastly, Huang seemingly argues that remand is

required because the IJ did not give alternative and independent grounds for his

decision absent the implausibility finding that the BIA declined to adopt, but the

IJ explicitly found that “in and of itself [Huang’s] testimony with regard to his

being brought to church and his church attendance in China is sufficient to support

an adverse credibility finding.”

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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

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