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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 13th 4 day of December, two thousand eleven.

5

6 PRESENT:

7 ROGER J. MINER,

8 REENA RAGGI,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _______________________________________ 12

13 HUICHAO MEI,

14 Petitioner, 

15

16 v. 10-3903-ag

17 NAC 

18 ERIC H. HOLDER, JR., U.S. ATTORNEY 

19 GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Eric Zheng, New York, NY.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; John S. Hogan, Senior

27 Litigation Counsel; Todd J. Cochran,

28 Trial Attorney, Office of

29 Immigration Litigation, U.S.

30 Department of Justice, Washington

31 D.C.

32
1

2 UPON DUE CONSIDERATION of this petition for review of a

3 Board of Immigration Appeals (“BIA”) decision, it is hereby

4 ORDERED, ADJUDGED, AND DECREED that the petition for review

5 is DENIED.

6 Huichao Mei, a native and citizen of the People’s

7 Republic of China, seeks review of the August 30, 2010,

8 order of the BIA affirming the July 9, 2008, decision of

9 Immigration Judge (“IJ”) Gabriel C. Videla denying his

10 application for asylum, withholding of removal, and relief

11 under the Convention Against Torture (“CAT”). In re Huichao

12 Mei, No. A089 255 939 (B.I.A. Aug. 30, 2010), aff’g No.

13 A089 255 939 (Immigr. Ct. N.Y. City July 9, 2008). We

14 assume the parties’ familiarity with the underlying facts

15 and procedural history of this case.

16 Under the circumstances of this case, we review both

17 the BIA’s and IJ’s opinions. See Yun-Zui Guan v. Gonzales,

18 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards

19 of review are well-established. See 8 U.S.C.

20 § 1252(b)(4)(B) (2006); Corovic v. Mukasey, 519 F.3d 90, 95

21 (2d Cir. 2008); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

22 (2d Cir. 2008) (per curiam).

23 On appeal, Mei contends that the agency’s adverse

24 credibility determination is not supported by the “totality

25 of the circumstances.” We conclude, however, that the

2
1 agency’s adverse credibility determination is based on

2 substantial evidence given inconsistencies in Mei’s

3 testimony and inconsistencies between his testimony and his

4 written application, as well as the IJ’s demeanor finding. 

5 As the agency found, Mei testified that family planning

6 officials came to his house looking for his pregnant wife in

7 July 2004, while also testifying that his wife did not

8 discover that she was pregnant until September 2004, and

9 later testified that the officials came to his house in

10 September and October 2004. See 8 U.S.C.

11 § 1158(b)(1)(B)(iii) (2006) (providing that an adverse

12 credibility determination may be based on “the consistency

13 between the applicant’s or witness’s written and oral

14 statements . . ., the internal consistency of each such

15 statement, the consistency of such statements with other

16 evidence of record . . ., and any inaccuracies or falsehoods

17 in such statements, without regard to whether an

18 inconsistency . . . goes to the heart of the applicant’s

19 claim”). The agency was not compelled to accept Mei’s

20 explanation that he was nervous and misspoke. See Majidi v.

21 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that

22 the agency need not credit an applicant’s explanations for

23 inconsistent testimony unless those explanations would

24 compel a reasonable fact-finder to do so).

3
1 Similarly, as the agency found, Mei wrote in his

2 written application that his only source of employment in

3 China was working for an electric power company from 1998 to

4 2007, but he testified that he owned and worked at an

5 advertising company. See 8 U.S.C. § 1158(b)(1)(B)(iii)

6 (2006). The agency was not compelled to accept Mei’s

7 explanation that he did not believe that he had to list his

8 ownership of the advertising company as part of his

9 employment in his written application because he had not

10 worked there, particularly given that Mei previously

11 testified that he had worked at the advertising company. 

12 See Majidi, 430 F.3d at 80-81.

13 In addition, the IJ’s demeanor finding provides

14 additional support for the adverse credibility

15 determination, as the IJ found that on several occasions Mei

16 was non-responsive to questions and appeared to be

17 testifying from a memorized account rather than from actual

18 experience. See Dong Gao v. BIA, 482 F.3d 122, 126-27 (2d

19 Cir. 2007) (providing that this Court grants “particular

20 deference in applying the substantial evidence standard to

21 credibility findings based on demeanor”).

22 Because the agency’s adverse credibility determination

23 is supported by substantial evidence, the agency did not err

24 in denying the relief sought. See Majidi, 430 F.3d at 81-82

4
1 (determining that petitioner failed to establish eligibility

2 for asylum or withholding of removal because substantial

3 evidence supported the agency’s adverse credibility

4 finding); Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir.

5 2006) (noting that when the same factual assertions are

6 needed for asylum, withholding of removal, and CAT relief,

7 an adverse credibility finding regarding those assertions

8 forecloses all forms of relief).

9 For the foregoing reasons, the petition for review is

10 DENIED. As we have completed our review, any stay of removal

11 that the Court previously granted in this petition is

12 VACATED, and any pending motion for a stay of removal in

13 this petition is DISMISSED as moot. Any pending request for

14 oral argument in this petition is DENIED in accordance with

15 Federal Rule of Appellate Procedure 34(a)(2) and Second

16 Circuit Local Rule 34.1(b).

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19

20

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