22-6463 Huang v. Garland BIA McCarthy, IJ A209 830 357

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 17th day of October, two thousand twenty-four.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, PIERRE N. LEVAL, BETH ROBINSON, Circuit Judges. _____________________________________

CAI XIA HUANG, Petitioner,

v. 22-6463 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Zhen Liang Li, Esq., Law Office of Zhen Liang Li, New York, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Jeffery R. Leist, Senior Litigation Counsel; Neelam Ihsanullah, Trial 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 Cai Xia Huang, a native and citizen of the People’s Republic of

China, seeks review of an August 26, 2022, decision of the BIA affirming a June 3,

2019, decision of an Immigration Judge (“IJ”) denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Cai Xia Huang, No. A 209 830 357 (B.I.A. Aug. 26, 2022), aff’g No.

A 209 830 357 (Immig. Ct. N.Y. City June 3, 2019). We assume the parties’

familiarity with the underlying facts and procedural history.

We have reviewed both the IJ’s and the BIA’s decisions “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir.

2006). We review the agency’s factual findings, including adverse credibility

2 determinations, for substantial evidence, and we review questions of law and the

application of law to fact de novo. Hong Fei Gao v. Sessions,

(2d

Cir. 2018). “[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 . . . , the inherent plausibility of the applicant’s . . .

account, the consistency between the applicant’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.”

§ 1158(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,

.

Substantial evidence supports the agency’s determination that Huang was

3 not credible as to her claim that she was arrested and beaten for attending an

underground church in China. The agency reasonably relied on inconsistencies

and implausibilities related to Huang’s prior attempt to travel to the United States.

See

(b)(1)(B)(iii). Huang testified that she did not intend to come

to the United States prior to her alleged persecution, but after being asked whether

she had applied for a visa, she conceded that she applied for a visa in 2015, before

she allegedly began attending church and before she was arrested. The agency

was not required to accept her explanation that she misspoke because she was

nervous. See Majidi v. Gonzales,

(2d Cir. 2005) (“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.” (quotation marks omitted)); see also Yun-Zui Guan v.

Gonzales,

, 397 n.6 (2d Cir. 2005) (noting that “an alien’s mere recitation

that he was nervous or felt pressured during an . . . interview will not

automatically prevent the IJ or BIA from relying on statements . . . when making

adverse credibility determinations”).

Moreover, Huang testified that she had intended to travel for a vacation,

which the IJ reasonably found implausible because she also testified that her the

4 visa application cost one quarter of her annual income; when asked about the

expenditure, she said only that she did not know exactly how much was spent.

See Siewe v. Gonzales,

, 168–69 (2d Cir. 2007) (explaining that the agency

may not engage in “bald” speculation, but that the agency may rely on

implausibility findings based on an “inference . . . made available to the factfinder

by record facts, or even a single fact, viewed in the light of common sense and

ordinary experience”).

As the IJ found, Huang’s visa application also conflicted with her testimony,

as it reflected that she had travelled to Australia and Singapore and worked as an

administrative director at a technology firm, while she testified that she was a

salesperson and had not previously traveled outside China. Given her testimony

about the visa interview in China and the conflicts between the testimony and her

credible fear interview, the IJ reasonably rejected as implausible her explanation

that an agency prepared the application with false information without her

knowledge. 1

1 Huang does not challenge the agency’s reliance on the credible fear interview, and the agency may rely on interview records, such as the one here, that bear sufficient “hallmarks of reliability.” Ming Zhang v. Holder,

(2d Cir. 2009). 5 The agency also reasonably relied on inconsistent testimony related to

Huang’s residence in the United States. See

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

was unclear about where she had lived in Louisiana: she changed her testimony

multiple times when asked for specific addresses or questioned about a car she

had registered.

Finally, the IJ’s demeanor finding—that Huang appeared surprised when

asked about issues not addressed in her statement—is entitled to deference.

See Li Hua Lin v. U.S. Dep’t of Just.,

(2d Cir. 2006) (giving “particular

deference” to demeanor finding because the IJ is “in the best position to evaluate

whether apparent problems in the . . . testimony suggest a lack of credibility or,

rather, can be attributed to an innocent cause such as difficulty understanding the

question” (quoting Jin Chen v. U.S. Dep’t of Just.,

(2d Cir. 2005))).

Moreover, the record supports the demeanor finding given that Huang changed

her testimony when confronted with additional information about her residence

and past visa application.

(“We can be still more confident in our review of

observations about an applicant's demeanor where, as here, they are supported by

specific examples of inconsistent testimony.”).

6 Huang does not challenge the individual findings outlined above, except to

argue that the agency should have accepted her explanations. Instead, she argues

that the agency erred in relying on minor and tangential inconsistencies. That

argument is without merit. Huang’s history of an attempt to obtain a visa to the

United States by fraud shows her willingness to lie and undermines her claim that

alleged persecution was the reason she left China. Moreover, “a single false

document or a single instance of false testimony may (if attributable to the

petitioner) infect the balance of the alien’s uncorroborated or unauthenticated

evidence.” Siewe,

. And “[e]ven where an IJ relies on

discrepancies or lacunae that, if taken separately, concern matters collateral or

ancillary to the claim, the cumulative effect may . . . be deemed consequential by

the fact-finder.” Xiu Xia Lin,

(quotation marks omitted); see also

(b)(1)(B)(iii) (specifying that the agency may consider issues that do

not go “to the heart of the applicant’s claim” in the “totality of circumstances”).

In sum, given the inconsistencies, implausible testimony, and the IJ’s

demeanor findings, substantial evidence supports the adverse credibility

determination. See Xiu Xia Lin,

; Siewe, 480 F.3d at 168–69; Li Hua

Lin,

. The adverse credibility determination is dispositive of

7 asylum, withholding of removal, and CAT relief because all three forms of relief

are based on the same factual predicate. See Hong Fei Gao,

.

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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