Huang v. BIA, (2nd Cir. 2008)

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06-4940-ag

Huang v. BIA

BIA

Jankun, IJ

A97-814-804

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

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AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 4th day of Janury, two thousand eight.

PRESENT:

HON. JOHN M. WALKER, JR.,

HON. JOSÉ A. CABRANES,

HON. ROBERT D. SACK,

Circuit Judges.

MENG YONG HUANG,

Petitioner,

v. 06-4940-ag

NAC

BOARD OF IMMIGRATION APPEALS,

Respondent.

FOR PETITIONER: Gary J. Yerman, New York, New York.

FOR RESPONDENT: Christoper J. Christie, United States Attorney, District of New Jersey, Rudolph A. Filko, Assistant United States Attorney, Newark, New Jersey.

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.

Petitioner Meng Yong Huang, a native and citizen of China, seeks review of the October 11, 2006 order of the BIA affirming the April 19, 2005 decision of Immigration Judge ("IJ") William F. Jankun denying Huang's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Meng Yong Huang, No. A97-814-804 (B.I.A. Oct. 11, 2007), aff'g No. A97-814 804 (Immig. Ct. N.Y. City Apr. 19, 2005). We assume the parties' familiarity with the underlying facts and procedural history of the case.

When the BIA agrees with the IJ's conclusion that a petitioner is not credible and, without rejecting any of the IJ's grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA's and IJ's opinions -- or more precisely, the Court reviews the IJ's decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The Court reviews the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8U.S.C.

§ 1252(b)(4)(B); e.g., Tao Jiang v. Gonzales, 500 F.3d 137, 140 (2d Cir. 2007). We review de novo question of law and the application of law to fact. See, e.g., Secaida-Rosales, 331 F.3d at 307.

As a preliminary matter, spouses of individuals persecuted under a coercive family planning policy are not per se eligible for asylum. Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 299-301 (2d Cir. 2007)(en banc).

However, such indviduals may establish eligibility for asylum by demonstrating past persecution based on their own "other resistance" to a coercive population control program or a well-founded fear that he or she will be subjected to persecution for such "resistance." Id. at 314 (citing 8 U.S.C. 1101(a)(42)). Regardless, because we conclude that the agency's adverse credibility finding was supported by substantial evidence, we need not evaluate any "other resistance" claim.

The IJ's adverse credibility determination is supported by several material inconsistencies in the record between Huang's testimony and the evidence submitted in support of his asylum application. First, Huang testified on both direct and cross-examination that his wife received "an IUD notice" in March 2004. However, the "Enforcing Family Planning Measure Notice" that Huang submitted ordered "sterilization," not an IUD procedure. After initially claiming that the procedures were similar, Huang acknowledged there was a "big difference." Similarly, Huang testified repeatedly that he was fined for his wife's second pregnancy, confirming when asked that this was the only reason for the fine. He also testified that he and his wife were of legal age when they got married and able to have a first child legally at any time. However, the "Notice of Charging Family-planning fee" he submitted stated that the couple was being fined for both "early marriage" and "early birth." The IJ properly relied on these two discrepancies in making his determination, as they are "substantial" when measured against the record as a whole. Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir. 2003). Indeed, they called into question not only the validity of Huang's documents, but whether his wife was ever forcibly aborted or whether he and his wife violated the family planning policy.

See Zhou Yun Zhang, 386 F.3d at 77-78.

The IJ also relied on a more minor inconsistency in support of his adverse credibility determination. Huang testified that he was married on February 10, 2002, but his affidavit in support of his application and the marriage certificate he submitted both stated that he was married on February 20, 2002. A minor date discrepancy of this sort may not always support an adverse credibility determination.

See, e.g., Diallo, 232 F.3d at 288. Here, however, taken together with the substantial inconsistencies identified above, it was properly deemed consequential by the IJ. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).

Finally, the agency properly based its adverse credibility determination on the inconsistency between Huang's testimony that the abortion certificate he submitted was evidence of a forced abortion and information contained in a State Department country report indicating that those certificates are only issued after voluntary abortions. We have previously warned the agency "not to place excessive reliance on published reports of the Department of State," and noted that while such reports "often provide a useful and informative overview of conditions in the applicant's home country . . . their observations do not automatically discredit contrary evidence presented by the applicant[.]" Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004).

Nonetheless, in a virtually identical context, we have held that an IJ may properly disbelieve an asylum applicant's claim that the Chinese government issued his wife a so-called "abortion certificate" following her involuntary abortion, when the State Department reports that its officials are "unaware" of the Chinese government issuing such certificates for anything other than voluntary abortions. Tu Lin, 446 F.3d at 400. Accordingly, the agency properly used this discrepancy as further support for its adverse credibility determination, which was, as a whole, supported by substantial evidence.

Because Huang failed to establish past persecution due to his incredible testimony, he was not entitled to the presumption of a well-founded fear. See 8 C.F.R. § 1208.13(b)(1). Furthermore, because he was found not credible, Huang failed to show the necessary subjective basis for a well-founded fear of future persecution.

Ramsameachire v. Ashcroft, 357 F.3d 169, 183 (2d Cir. 2004).

Thus, the agency's denial of asylum was proper. In addition, because Huang's claim for withholding of removal was premised on the same factual basis as his asylum claim, the adverse credibility determination as to his asylum claim necessarily precludes success on his withholding claim. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

Because Huang's brief presents no argument challenging the agency's determination that he does not qualify for relief under CAT, and because addressing this argument does not appear to be necessary to avoid manifest injustice it is deemed waived. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

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