10-3903-ag Mei v. Holder BIA Videla, IJ A089 255 939 

### 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 13 th** **day of December, two thousand eleven.** 4 5 **PRESENT:** 6 **ROGER J. MINER,** 7 **REENA RAGGI,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **HUICHAO MEI,** 13 Petitioner**,** 14 15 **v. 10-3903-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., U.S. ATTORNEY** 18 **GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Eric Zheng, New York, NY.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; John S. Hogan, Senior** 26 **Litigation Counsel; Todd J. Cochran,** 27 **Trial Attorney, Office of** 28 **Immigration Litigation, U.S.** 29 **Department of Justice, Washington** 30 **D.C.** 31 321 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 Huichao Mei, a native and citizen of the People’s 6 Republic of China, seeks review of the August 30, 2010, 7 order of the BIA affirming the July 9, 2008, decision of 8 Immigration Judge (“IJ”) Gabriel C. Videla denying his 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Huichao 11 Mei, No. A089 255 939 (B.I.A. Aug. 30, 2010), aff’g No. 12 A089 255 939 (Immigr. Ct. N.Y. City July 9, 2008). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history of this case. 15 Under the circumstances of this case, we review both 16 the BIA’s and IJ’s opinions. See Yun-Zui Guan v. Gonzales, 17 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards 18 of review are well-established. See 8 U.S.C. 19 § 1252(b)(4)(B) (2006); Corovic v. Mukasey, 519 F.3d 90, 95 20 (2d Cir. 2008); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 21 (2d Cir. 2008) (per curiam). 22 On appeal, Mei contends that the agency’s adverse 23 credibility determination is not supported by the “totality 24 of the circumstances.” We conclude, however, that the 25

2agency’s adverse credibility determination is based on 1 substantial evidence given inconsistencies in Mei’s 2 testimony and inconsistencies between his testimony and his 3 written application, as well as the IJ’s demeanor finding. 4 As the agency found, Mei testified that family planning 5 officials came to his house looking for his pregnant wife in 6 July 2004, while also testifying that his wife did not 7 discover that she was pregnant until September 2004, and 8 later testified that the officials came to his house in 9 September and October 2004. See 8 U.S.C. 10 § 1158(b)(1)(B)(iii) (2006) (providing that an adverse 11 credibility determination may be based on “the consistency 12 between the applicant’s or witness’s written and oral 13 statements . . ., the internal consistency of each such 14 statement, the consistency of such statements with other 15 evidence of record . . ., and any inaccuracies or falsehoods 16 in such statements, without regard to whether an 17 inconsistency . . . goes to the heart of the applicant’s 18 claim”). The agency was not compelled to accept Mei’s 19 explanation that he was nervous and misspoke. See Majidi v. 20 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that 21 the agency need not credit an applicant’s explanations for 22 inconsistent testimony unless those explanations would 23 compel a reasonable fact-finder to do so). 24

3Similarly, as the agency found, Mei wrote in his 1 written application that his only source of employment in 2 China was working for an electric power company from 1998 to 3 2007, but he testified that he owned and worked at an 4 advertising company. See 8 U.S.C. § 1158(b)(1)(B)(iii) 5 (2006). The agency was not compelled to accept Mei’s 6 explanation that he did not believe that he had to list his 7 ownership of the advertising company as part of his 8 employment in his written application because he had not 9 worked there, particularly given that Mei previously 10 testified that he had worked at the advertising company. 11 See Majidi, 430 F.3d at 80-81. 12 In addition, the IJ’s demeanor finding provides 13 additional support for the adverse credibility 14 determination, as the IJ found that on several occasions Mei 15 was non-responsive to questions and appeared to be 16 testifying from a memorized account rather than from actual 17 experience. See Dong Gao v. BIA, 482 F.3d 122, 126-27 (2d 18 Cir. 2007) (providing that this Court grants “particular 19 deference in applying the substantial evidence standard to 20 credibility findings based on demeanor”). 21 Because the agency’s adverse credibility determination 22 is supported by substantial evidence, the agency did not err 23 in denying the relief sought. See Majidi, 430 F.3d at 81-82 24

4(determining that petitioner failed to establish eligibility 1 for asylum or withholding of removal because substantial 2 evidence supported the agency’s adverse credibility 3 finding); Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 4 2006) (noting that when the same factual assertions are 5 needed for asylum, withholding of removal, and CAT relief, 6 an adverse credibility finding regarding those assertions 7 forecloses all forms of relief). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of removal 10 that the Court previously granted in this petition is 11 VACATED, and any pending motion for a stay of removal in 12 this petition is DISMISSED as moot. Any pending request for 13 oral argument in this petition is DENIED in accordance with 14 Federal Rule of Appellate Procedure 34(a)(2) and Second 15 Circuit Local Rule 34.1(b). 16

FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20 21

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