14-2177
Huang v. Lynch
BIA
Poczter, IJ
A200 926 271
A205 218 835
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 5th day of May, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 MEIQING HUANG, JINDING HUANG,
14 Petitioners,
15
16 v. 14-2177
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
24 FOR PETITIONERS: Gregory G. Moratta, Vernon, NJ.
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: Benjamin C. Mizer, Acting Assistant
3 Attorney General; Anthony C. Payne,
4 Assistant Director; Yedidya Cohen,
5 Trial Attorney; Jonathan K. Ross, Law
6 Clerk, Office of Immigration
7 Litigation, United States Department
8 of Justice, 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 is
13 DENIED.
14 Petitioners, both natives and citizens of China, seek
15 review of a June 5, 2014, decision of the BIA, affirming the
16 February 8, 2013, decision of an Immigration Judge (“IJ”), which
17 denied Meiqing’s application for asylum, withholding of
18 removal, and relief pursuant to the Convention Against Torture
19 (“CAT”).2 In re Meiqing, Jinding Huang, Nos. A200 926 271, A205
20 218 835 (B.I.A. June 5, 2014), aff’g Nos. A200 926 271, A205
21 218 835 (Immig. Ct. N.Y. City Feb. 8, 2013). We assume the
22 parties’ familiarity with the underlying facts and procedural
23 history in this case.
2
Because Jinding Huang is listed as a derivative beneficiary of his
wife’s asylum application, this order refers to Meiqing Huang.
2
1 Under the circumstances of this case, we have reviewed both
2 the decisions of the IJ and the BIA “for the sake of
3 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
4 524, 528 (2d Cir. 2006). The applicable standards of review
5 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
6 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
7 For asylum applications like Meiqing’s, governed by the
8 REAL ID Act of 2005, the agency may, “[c]onsidering the totality
9 of the circumstances,” base a credibility determination on
10 inconsistencies in an asylum applicant’s statements and other
11 record evidence, “without regard to whether” the
12 inconsistencies go “to the heart of the applicant’s claim.” 8
13 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
14 credibility determination unless, from the totality of the
15 circumstances, it is plain that no reasonable fact-finder could
16 make such an adverse credibility ruling.” Xiu Xia Lin v.
17 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
18 Substantial evidence supports the agency’s adverse credibility
19 determination.
20 Initially, Meiqing asserts that she was denied due process
21 because the IJ admitted into evidence an asylum officer’s
3
1 assessment to refer without the officer being called to testify.
2 The Federal Rules of Evidence and the heightened procedural
3 protections of a criminal trial do not apply to the admission
4 of documentary evidence in a removal proceeding. See Felzcerek
5 v. INS, 75 F.3d 112, 115 (2d Cir. 1996). Instead, evidence may
6 be admitted if it does not violate the alien’s right to due
7 process of law, that is, “if it is probative and its use is
8 fundamentally fair.” Montero v. INS, 124 F.3d 381, 385-86 (2d
9 Cir. 1997). Fairness in this context “is closely related to
10 the reliability and trustworthiness of the evidence.” Id. at
11 386 (internal quotation marks omitted). Given that Meiqing did
12 not (and does not now) question the reliability of the
13 assessment to refer, it was not error for the IJ to admit the
14 evidence without requiring the asylum officer to testify. 3
15 Thus, the IJ properly considered the assessment to refer and
16 reasonably found the following inconsistencies negatively
17 affected Meiqing’s credibility.
18 First, the agency reasonably relied on an inconsistency
19 concerning whether Meiqing had a medical exam following her
3
We note that, contrary to Meiqing’s assertion, the IJ did not
consider the handwritten notes attached to the assessment to refer.
4
1 alleged forced abortion. Meiqing denied ever having a medical
2 exam in China following her forced abortion, but Jinding
3 testified that she did indeed return to the doctor for an
4 examination.
5 Second, the agency reasonably relied on inconsistencies
6 concerning Meiqing’s alleged abortion certificate. Meiqing
7 testified that she was forced to have an abortion on November
8 3, 2010. However, the abortion certificate itself reflected
9 that her abortion occurred on November 3, 2011, a year later.
10 Meiqing explained that the doctor had mistakenly recorded the
11 date, and that she was given the abortion certificate on the
12 day of her abortion. Jinding, however, testified that he and
13 Meiqing were not given the abortion certificate in China and
14 did not even see it until Meiqing’s mother mailed it to them
15 in the United States. And the agency reasonably relied on
16 inconsistencies concerning when the Petitioners discovered
17 that the certificate contained the wrong date.
18 The agency reasonably relied further on inconsistencies
19 regarding how many passports Meiqing had been issued, how many
20 times she had left China, whether her mother initially refused
21 to pay Meiqing’s fine, and where Meiqing lived when immigration
5
1 proceedings were initiated. The agency also reasonably
2 determined that the other record evidence failed to
3 rehabilitate Meiqing’s incredible testimony. See Biao Yang v.
4 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
5 Given these findings, the totality of the circumstances
6 supports the agency’s adverse credibility determination. See
7 Xiu Xia Lin, 534 F.3d at 167. That determination is dispositive
8 of asylum, withholding of removal, and CAT relief as those
9 claims are based on the same factual predicate. Paul v.
10 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
6