Filed: Jan. 25, 2017
Latest Update: Mar. 03, 2020
Summary: 15-2749 Meng v. Yates BIA Poczter, IJ A205 226 441 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 NOTA
Summary: 15-2749 Meng v. Yates BIA Poczter, IJ A205 226 441 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 NOTAT..
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15-2749
Meng v. Yates
BIA
Poczter, IJ
A205 226 441
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 TO 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 for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
25th day of January, two thousand seventeen.
PRESENT:
ROBERT D. SACK,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
XIANGYU MENG, AKA XIANG YU MENG,
Petitioner,
v. 15-2749
NAC
SALLY Q. YATES, ACTING UNITED
STATES ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Louis H. Klein, The Kasen Law Firm,
PLLC, Flushing, N.Y.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting
Attorney General Sally Q. Yates is automatically substituted for
former Attorney General Loretta E. Lynch as Respondent.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
C. Payne, Assistant Director;
Kathleen Kelly Volkert, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Xiangyu Meng, a native and citizen of China,
seeks review of a July 30, 2015, decision of the BIA affirming
a December 24, 2013, decision of an Immigration Judge (“IJ”)
denying Meng’s application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In re
Xiangyu Meng, No. A205 226 441 (B.I.A. July 30, 2015), aff’g
No. A205 226 441 (Immig. Ct. N.Y. City Dec. 24, 2013). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin
v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
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For asylum applications like Meng’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an applicant’s
“demeanor, candor, or responsiveness,” the plausibility of his
account, and inconsistencies in his statements and other record
evidence “without regard to whether” those inconsistencies go
“to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
defer . . . to an IJ’s credibility determination unless . . .
it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
Further, “[a] petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” Majidi v. Gonzales,
430
F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted)
(emphasis in original). For the reasons that follow, we
conclude that substantial evidence supports the agency’s
determination that Meng was not credible.
Initially, Meng does not challenge the agency’s reliance
on the inconsistencies concerning his baptism classes in the
United States and the last church service that he attended with
3
his wife, and those inconsistencies stand as appropriate bases
for the credibility determination. See Norton v. Sam’s Club,
145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued
in the briefs are considered waived and normally will not be
addressed on appeal.”).
The agency also reasonably based the credibility
determination on inconsistency among Meng’s testimony,
application, and fine receipt regarding when he was released
from detention. See Xiu Xia Lin, 534 F.3d at 163-64. In his
application and testimony, Meng stated that he was arrested on
June 12, 2011, and released 3 days later after his parents paid
a 3,000 renminbi fine. However, Meng’s fine receipt was dated
April 18, 2011—two months before Meng claims he was arrested.
Meng contends, as he did on appeal before the BIA, that the
English translation of his fine receipt could be incorrect.
Before the IJ, Meng’s attorney argued that the “4” on the original
Chinese version might actually be a “6,” which would reflect
a June rather than April date. Both the IJ and interpreter
examined the letter. The IJ ultimately accepted the official
translation, submitted by Meng, which reflected the April date.
The IJ did not err by doing so. See Siewe v. Gonzales,
480 F.3d
160, 167 (2d Cir. 2007) (“Decisions as to . . . which of competing
4
inferences to draw are entirely within the province of the trier
of fact.” (internal quotation marks omitted)).
Finally, the adverse credibility determination was
properly based on inconsistencies in the record about where Meng
has lived since arriving in the United States. See Xiu Xia Lin,
534 F.3d at 163-64. On both of his asylum applications, Meng
listed his address as 4004 Bowne Street; he also testified that
he has lived at that address since arriving in the United States.
However, Meng’s marriage certificate listed 35-28 Union Street
as the couple’s marital address. When confronted with this
discrepancy, Meng first testified that the Union Street address
was his wife’s, then testified that he lived there “once in a
while,” and later testified that he had moved there and no longer
lived at the Bowne Street address. The IJ was not compelled to
accept Meng’s explanation that he testified inconsistently
because he was nervous, and Meng’s various explanations for the
discrepancy between his application and marriage certificate
only added inconsistencies to the record. See
Majidi, 430 F.3d
at 80.
Given the foregoing inconsistency and corroboration
findings, substantial evidence supports the agency’s
credibility determination. See Xiu Xia Lin, 534 F.3d at 167.
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That determination is dispositive of Meng’s claims for asylum,
withholding of removal, and CAT relief because all three claims
are based on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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