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.

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 8th 4 day of July, two thousand eleven.

5

6 Present:

7 Guido Calabresi,

8 Gerard E. Lynch,

9 Raymond J. Lohier, Jr.,

10 Circuit Judges. 11 _____________________________________________

12

13 Mengquan Zhao,

14 Petitioner,

15

16 v. 10-3335-ag 

17 NAC

18

19 Eric H. Holder, Jr., United States Attorney General,

20 Respondent.

21 ______________________________________________

22

23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney General;

27 James E. Grimes, Senior Litigation

28 Counsel; William C. Minick, Trial

29 Attorney, Civil Division, Office of

30 Immigration Litigation, U.S. Department

31 of Justice, Washington, D.C.

32
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 motion for summary

4 denial/dismissal is DENIED and that the petition for review is

5 DENIED.

6 Petitioner Mengquan Zhao, a native and citizen of China,

7 seeks review of a July 19, 2010, decision of the BIA affirming

8 the September 24, 2008, decision of Immigration Judge (“IJ”)

9 Barbara A. Nelson denying his application for asylum,

10 withholding of removal, and relief under the Convention

11 Against Torture (“CAT”). In re Mengquan Zhao, No. A099 679 936

12 (B.I.A. July 19, 2010), aff’g No. A099 679 936 (Immig. Ct.

13 N.Y.C. Sept. 24, 2008). 

14 Zhao’s requests for relief are based on the claims that

15 his wife had been forcibly aborted, that he and his wife had

16 been forced to pay a fine for her unauthorized pregnancy, and

17 that he feared he would be persecuted if returned to China as

18 a result of their violation of China’s family planning policy.

19 Certified Administrative Record (“CAR”) at 221-34. The IJ

20 found that Zhao was not credible, pointing to inconsistencies

21 between Zhao’s testimony and his written statement as well as

22 inconsistencies between two letters from Zhao’s wife, noting

23 that it appeared that Zhao changed his story to reflect “other
1 resistance” after this court clarified that an applicant is

2 not eligible for asylum based on the forced abortion of his

3 spouse. Id. at 72-75 (citing Shi Liang Lin v. U.S. Dep’t of

4 Justice, 494 F.3d 296 (2d Cir. 2007)). We assume the parties’

5 familiarity with the additional underlying facts and

6 procedural history of the case. 

7 Contending that Zhao’s petition is frivolous, Respondent

8 moved for summary denial of the petition. This court may

9 “dismiss [a] . . . petition for review as frivolous when the .

10 . . petition presents no arguably meritorious issue for []

11 consideration.” Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995). 

12 Accordingly, we treat this motion as one for summary

13 dismissal. Summary action is, however, “a rare exception to

14 the completion of the appeal process[,] . . . available only

15 if an appeal is truly ‘frivolous.’” United States v. Davis,

16 598 F.3d 10, 13 (2d Cir. 2009) (distinguishing between an easy

17 case for which the outcome “seems obvious”and a frivolous case

18 that is “inarguable or fanciful”); accord Love v. McCray, 413

19 F.3d 192, 194 (2d Cir. 2005). A petition is frivolous if it

20 lacks an arguable basis in law or fact such that it presents

21 an “indisputably meritless legal theory” or “factual

22 contentions [that] are clearly baseless.” Neitzke v.

23 Williams, 490 U.S. 319, 327 (1989); see also Der-Rong Chour v.
1 INS, 578 F.2d 464, 468 (2d Cir. 1978) (granting summary denial

2 where the petition raised no “colorable legal or factual basis

3 for the relief sought”); Pillay, 45 F.3d at 16. 

4 Zhao’s argument–that the IJ erred in finding him

5 incredible–is comfortably within the range of arguments we

6 entertain in typical immigration proceedings. Were we to agree

7 with him that the IJ erred, he would be entitled to have his

8 case remanded for reconsideration. This makes his legal theory

9 not “indisputably meritless.” Indeed, this case is precisely

10 the type in which the outcome “seems obvious” but the

11 arguments are not “fanciful.” Therefore, summary dismissal is

12 inappropriate here. Respondent’s motion is DENIED. 

13 Because both parties have submitted briefs dealing with

14 the merits of Zhao’s petition, however, in the interests of

15 judicial economy, we see fit to dispose of the petition on its

16 merits now. Under the circumstances of this case, we consider

17 both the IJ’s and the BIA’s opinions “for the sake of

18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

19 2008) (internal quotation marks omitted). The applicable

20 standards of review are well established. 8 U.S.C.

21 § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95

22 (2d Cir. 2008). Zhao’s application is governed by the REAL ID

23 Act, and so the agency may base a credibility finding on an
1 asylum applicant’s demeanor, the plausibility of his or her

2 account, and inconsistencies in his or her statements, without

3 regard to whether they go “to the heart of the applicant’s

4 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). 

5 We “defer . . . to an IJ’s credibility determination

6 unless, from the totality of the circumstances, it is plain

7 that no reasonable fact-finder could make such an adverse

8 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,

9 167 (2d Cir. 2008). Given the omissions in Zhao’s written

10 application and in the letter submitted by his wife,

11 substantial evidence supports the IJ’s adverse credibility

12 determination. See 8 U.S.C. § 1231(b)(3)(c) (cross13 referencing 8 U.S.C. § 1158(b)(1)(B)(iii)). Nothing Zhao

14 presents in his petition compels reversal. 

15 Because Zhao’s claims all were based on the same factual

16 predicate, the IJ’s adverse credibility determination

17 constitutes a proper basis for the denial of his withholding

18 of removal and CAT claims as well. See Paul v. Gonzales, 444

19 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

20 Justice, 426 F.3d 520, 523 (2d Cir. 2005). 

21

22 For the foregoing reasons, the petition for review is

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

24 that the Court previously granted in this petition is VACATED,
1 and any pending motion for a stay of removal in this petition

2 is DISMISSED as moot. Any pending request for oral argument

3 in this petition is DENIED in accordance with Federal Rule of

4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

5 34.1(b).

6 FOR THE COURT:

7 Catherine O’Hagan Wolfe, Clerk

8

9