10-3335-ag Zhao v. Holder BIA Nelson, IJ A099 679 936 

### 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 New** 3 **York, on the 8 th** **day of July, two thousand eleven.** 4 5 

### Present: 6 

### Guido Calabresi, 7 

### Gerard E. Lynch, 8 

### Raymond J. Lohier, Jr., 9 

### Circuit Judges

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_____________________________________________ 11 12 Mengquan Zhao, 13 Petitioner , 14 15 v. 10-3335-ag 16 NAC 17 18 Eric H. Holder, Jr., United States Attorney General, 19 Respondent

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______________________________________________ 21 22 **FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney General;** 26 **James E. Grimes, Senior Litigation** 27 **Counsel; William C. Minick, Trial** 28 **Attorney, Civil Division, Office of** 29 **Immigration Litigation, U.S. Department** 30 **of Justice, Washington, D.C.** 31 32UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the motion for summary 3 denial/dismissal is DENIED and that the petition for review is 4

DENIED. 5 Petitioner Mengquan Zhao, a native and citizen of China, 6 seeks review of a July 19, 2010, decision of the BIA affirming 7 the September 24, 2008, decision of Immigration Judge (“IJ”) 8 Barbara A. Nelson denying his application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Mengquan Zhao , No. A099 679 936 11 (B.I.A. July 19, 2010), aff’g No. A099 679 936 (Immig. Ct. 12 N.Y.C. Sept. 24, 2008). 13 Zhao’s requests for relief are based on the claims that 14 his wife had been forcibly aborted, that he and his wife had 15 been forced to pay a fine for her unauthorized pregnancy, and 16 that he feared he would be persecuted if returned to China as 17 a result of their violation of China’s family planning policy. 18 Certified Administrative Record (“CAR”) at 221-34. The IJ 19 found that Zhao was not credible, pointing to inconsistencies 20 between Zhao’s testimony and his written statement as well as 21 inconsistencies between two letters from Zhao’s wife, noting 22 that it appeared that Zhao changed his story to reflect “other 23resistance” after this court clarified that an applicant is 1 not eligible for asylum based on the forced abortion of his 2

spouse. Id . at 72-75 (citingShi Liang Lin v. U.S. Dep’t of 3 Justice , 494 F.3d 296 (2d Cir. 2007)). We assume the parties’ 4 familiarity with the additional underlying facts and 5 procedural history of the case. 6 Contending that Zhao’s petition is frivolous, Respondent 7 moved for summary denial of the petition. This court may 8 “dismiss [a] . . . petition for review as frivolous when the . 9 . . petition presents no arguably meritorious issue for [] 10 consideration.” Pillay v. INS , 45 F.3d 14, 17 (2d Cir. 1995). 11 Accordingly, we treat this motion as one for summary 12 dismissal. Summary action is, however, “a rare exception to 13 the completion of the appeal process[,] . . . available only 14 if an appeal is truly ‘frivolous.’” United States v. Davis , 15 598 F.3d 10, 13 (2d Cir. 2009) (distinguishing between an easy 16 case for which the outcome “seems obvious”and a frivolous case 17 that is “inarguable or fanciful”); accord Love v. McCray, 413 18 F.3d 192, 194 (2d Cir. 2005). A petition is frivolous if it 19 lacks an arguable basis in law or fact such that it presents 20 an “indisputably meritless legal theory” or “factual 21 contentions [that] are clearly baseless.” Neitzke v. 22 Williams , 490 U.S. 319, 327 (1989); see also Der-Rong Chour v. 23INS , 578 F.2d 464, 468 (2d Cir. 1978) (granting summary denial 1 where the petition raised no “colorable legal or factual basis 2 for the relief sought”); Pillay, 45 F.3d at 16. 3 Zhao’s argument–that the IJ erred in finding him 4 incredible–is comfortably within the range of arguments we 5 entertain in typical immigration proceedings. Were we to agree 6 with him that the IJ erred, he would be entitled to have his 7 case remanded for reconsideration. This makes his legal theory 8 not “indisputably meritless.” Indeed, this case is precisely 9 the type in which the outcome “seems obvious” but the 10 arguments are not “fanciful.” Therefore, summary dismissal is 11 inappropriate here. Respondent’s motion is DENIED. 12 Because both parties have submitted briefs dealing with 13 the merits of Zhao’s petition, however, in the interests of 14 judicial economy, we see fit to dispose of the petition on its 15 merits now. Under the circumstances of this case, we consider 16 both the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 18 2008) (internal quotation marks omitted). The applicable 19 standards of review are well established. 8 U.S.C. 20 § 1252(b)(4)(B); see also Corovic v. Mukasey , 519 F.3d 90, 95 21 (2d Cir. 2008). Zhao’s application is governed by the REAL ID 22 Act, and so the agency may base a credibility finding on an 23asylum applicant’s demeanor, the plausibility of his or her 1 account, and inconsistencies in his or her statements, without 2 regard to whether they go “to the heart of the applicant’s 3 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). 4 We “defer . . . to an IJ’s credibility determination 5 unless, from the totality of the circumstances, it is plain 6 that no reasonable fact-finder could make such an adverse 7 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 8 167 (2d Cir. 2008). Given the omissions in Zhao’s written 9 application and in the letter submitted by his wife, 10 substantial evidence supports the IJ’s adverse credibility 11 determination. See8 U.S.C. § 1231(b)(3)(c) (cross12 referencing 8 U.S.C. § 1158(b)(1)(B)(iii)). Nothing Zhao 13 presents in his petition compels reversal. 14 Because Zhao’s claims all were based on the same factual 15 predicate, the IJ’s adverse credibility determination 16 constitutes a proper basis for the denial of his withholding 17 of removal and CAT claims as well. See Paul v. Gonzales , 444 18 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of 19 Justice , 426 F.3d 520, 523 (2d Cir. 2005). 20 21 For the foregoing reasons, the petition for review is 22 DENIED. As we have completed our review, any stay of removal 23 that the Court previously granted in this petition is VACATED, 24and any pending motion for a stay of removal in this petition 1 is DISMISSED as moot. Any pending request for oral argument 2 in this petition is DENIED in accordance with Federal Rule of 3 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 4 34.1(b). 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9