Meng v. Holder , 598 F. App'x 37 ( 2015 )

13-457
Meng v. Holder
BIA
Videla, IJ
A087 790 819
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of February, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 QINGQIANG MENG,
14 Petitioner,
15
16 v. 13-457
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: David A. Bredin, Law Office of David
24 A. Bredin, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Carl McIntyre, Assistant
28 Director; Brooke M. Maurer, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Qingqiang Meng, a native and citizen of the People’s
6 Republic of China, seeks review of a January 15, 2013,
7 decision of the BIA affirming the July 13, 2011, decision of
8 Immigration Judge (“IJ”) Gabriel C. Videla, which denied
9 Qingqiang Meng’s application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Qingqiang Meng, No. A087 790 819 (B.I.A.
12 Jan. 15, 2013), aff’g No. A087 790 819 (Immig. Ct. N.Y. City
13 July 13, 2011). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision, including the portions not explicitly
17 discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432
18 F.3d 391, 394 (2d Cir. 2005) (per curiam). The applicable
19 standards of review are well established. See 8 U.S.C.
20 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
21 (2d Cir. 2009).
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1 I. Adverse Credibility Determination
2 For asylum applications such as Meng’s, governed by the
3 REAL ID Act of 2005, the agency may, considering the
4 totality of the circumstances, base a credibility finding on
5 an asylum applicant’s “demeanor, candor, or responsiveness,”
6 the plausibility of his account, and inconsistencies in his
7 statements, without regard to whether they go “to the heart
8 of the applicant’s claim,” so long as they reasonably
9 support an inference that the applicant is not credible. 8
10 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534
11 F.3d 162, 167 (2d Cir. 2008) (per curiam). We “defer . . .
12 to an IJ’s credibility determination unless, from the
13 totality of the circumstances, it is plain that no
14 reasonable fact-finder could make such an adverse
15 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
16 The agency erred when it found that Meng omitted an
17 important part of his claim from his asylum application.
18 However, because the agency’s conclusion that aspects of
19 Meng’s claim were implausible is tethered to record
20 evidence, and the agency found other inconsistencies in
21 Meng’s testimony which are supported by the record,
22 substantial evidence supports the adverse credibility
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1 determination. Accordingly, remand would be futile. See
2 Diallo v. U.S. Dep’t of Justice, 548 F.3d 232, 235 & n.3 (2d
3 Cir. 2008).
4 The IJ found, reasonably, that aspects of Meng’s
5 testimony were implausible. Specifically, the IJ found
6 implausible Meng’s testimony that although he had been
7 living in hiding since 2006, in 2008 he went to the Public
8 Security Office and gave officials there his name and
9 address to renew his passport. Furthermore, given Meng’s
10 stated fear of sterilization, the IJ found implausible that
11 he was able to travel as part of a tourist group to Malaysia
12 and Hong Kong, and that he did not attempt to remain in
13 Malaysia and not return to China. The IJ also found Meng’s
14 explanations for why he was unable to stay in Malaysia
15 unconvincing – Meng first testified that he would have
16 trouble finding a job in Malaysia, and then that he did not
17 know that Malaysia was a country he could immigrate to, and
18 finally that the tour guide would not allow him to stay in
19 Malaysia. The IJ’s implausibility findings are supported by
20 substantial evidence, because the reasons for his
21 incredulity are self-evident. See Wensheng Yan v. Mukasey,
22 509 F.3d 63, 67 (2d Cir. 2007) (per curiam).
4
1 The IJ found that Meng’s testimony often seemed to be
2 non-responsive, evasive, and as if he was “not really
3 testifying from actual experience.” We generally afford
4 particular deference to an IJ’s assessment of an applicant’s
5 demeanor because the IJ’s ability to observe the witness
6 places him in the best position to evaluate credibility.
7 See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d
8 Cir. 2005). Moreover, we can be “more confident in our
9 review of observations about an applicant’s demeanor where
10 . . . they are supported by specific examples of
11 inconsistent testimony.” Li Hua Lin v. U.S. Dep’t of
12 Justice, 453 F.3d 99, 109 (2d Cir. 2006). Here, the IJ
13 found that Meng testified inconsistently in explaining why
14 he did not provide corroborating evidence, and this finding
15 is supported by the record. Furthermore, Meng acknowledged
16 that as a result of the lack of corroboration, the IJ had no
17 evidence other than Meng’s own testimony that anyone sought
18 to sterilize him. Cf. Biao Yang v. Gonzales, 496 F.3d 268,
19 273 (2d Cir. 2007).
20 In light of Meng’s unresponsive, inconsistent, and
21 implausible testimony, we conclude that the totality of the
22 circumstances supports the agency’s adverse credibility
23 determination.. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
5
1 Lin, 534 F.3d at 167. Even discounting the IJ’s erroneous
2 omission finding, the record does not compel a contrary
3 finding. See Xiu Xia Lin, 534 F.3d at 167. Because the
4 only evidence of a threat to Meng’s life or freedom depended
5 upon his credibility, the adverse credibility determination
6 necessarily precludes success on this claim for asylum,
7 withholding of removal, and CAT relief. See Paul v.
8 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006); Xue Hong Yang
9 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
10 II. Future Persecution
11 Meng contends that he fears future persecution based on
12 his Christian faith. Because Meng did not challenge the
13 IJ’s conclusion regarding a pattern or practice of
14 persecution before the BIA, we decline to consider the
15 issue. Cf. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
16 104, 119-20, 124 (2d Cir. 2007).
17 As the agency concluded, Meng did not present any
18 evidence that Chinese authorities were aware that he was
19 Christian, or that he attended church in the United States.
20 The IJ also noted that Meng testified that his wife had been
21 a practicing Christian for years in China, and had not
22 encountered any problems with the authorities on the basis
23 of her religion. Accordingly, the agency did not err in
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1 concluding that Meng did not show a well-founded fear of
2 future persecution. See Hongsheng Leng v. Mukasey, 528 F.3d
3 135, 143 (2d Cir. 2008) (per curiam); Melgar de Torres v.
4 Reno, 191 F.3d 307, 313 (2d Cir. 1999). Because Meng was
5 unable to establish the objective likelihood of harm based
6 on his Christian faith needed to make out an asylum claim,
7 he was necessarily unable to meet the higher standard
8 required to succeed on a claim for withholding of removal or
9 CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d
10 Cir. 2010).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DENIED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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