Meiqing Huang v. Lynch

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