         10-236-ag
         Mei v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A099 349 054
                          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
 4       New York, on th 27th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROBERT A. KATZMANN,
10                DENNY CHIN,
11                     Circuit Judges.
12       ______________________________________
13
14       XUE JIAN MEI,
15                Petitioner,
16
17                       v.                                     10-236-ag
18                                                              NAC
19       ERIC H. HOLDER, JR.,
20       UNITED STATES ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Alexander Kwok-Ho Yu, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Thomas B. Fatouros, Senior
29                                     Litigation Counsel; Arthur L. Rabin,
 1                             Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Xue Jian Mei, a native and citizen of the People’s

11   Republic of China, seeks review of a December 23, 2009,

12   order of the BIA affirming the February 13, 2008, decision

13   of Immigration Judge (“IJ”) Philip L. Morace, which denied

14   Mei’s applications for asylum, withholding of removal, and

15   relief under the Convention Against Torture (“CAT”).       In re

16   Xue Jian Mei, No. A099 349 054 (B.I.A. Dec. 23, 2009), aff’g

17   No. A099 349 054 (Immig. Ct. N.Y. City Feb. 13, 2008).      We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20       Under the circumstances of this case, we review both

21   the IJ’s and the BIA’s opinions “for the sake of

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

23   2008).   The applicable standards of review are well-

24   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Corovic

25   v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey,

26   529 F.3d 99, 110 (2d Cir. 2008).

                                     2
 1       While we generally lack jurisdiction to review an IJ’s

 2   determination regarding the timeliness of an asylum

 3   application, see 8 U.S.C. § 1158(a)(3), this Court retains

 4   jurisdiction to review “constitutional claims” and

 5   “questions of law.”   8 U.S.C. § 1252(a)(2)(D).

 6       Mei argues that the IJ violated his due process rights

 7   by not allowing him to explain the untimely filing of his

 8   asylum application.   While this argument potentially raises

 9   a constitutional question, it is, nevertheless, unavailing.

10   Due process “requires that an applicant receive a full and

11   fair hearing which provides a meaningful opportunity to be

12   heard.”   Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99,

13   104-05 (2d Cir. 2006).   Since Mei had several opportunities

14   to explain his untimely filing, yet failed to do so, his

15   argument is without merit.

16       Mei argues that the IJ’s adverse credibility

17   determination is unsupported by substantial evidence.    For

18   asylum applications governed by the REAL ID Act of 2005, the

19   agency may base a credibility finding on an asylum

20   applicant’s demeanor, the plausibility of his or her

21   account, and inconsistencies in his or her statements,

22   without regard to whether they go “to the heart of the


                                   3
 1   applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).     This

 2   Court defers to an IJ’s credibility determination unless,

 3   from the totality of the circumstances, it is plain that no

 4   reasonable fact-finder could make such an adverse

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

 6   167 (2d Cir. 2008).

 7       Under the REAL ID Act, the agency’s adverse credibility

 8   determination was adequately supported by inconsistencies

 9   between Mei’s application and testimony and by an omission

10   in his asylum application. 8 U.S.C. § 1158(b)(1)(B)(iii).

11   In addition, the IJ reasonably relied on Mei’s non-

12   responsive demeanor:    Mei repeatedly failed to answer

13   questions and answered questions he was not asked.      We give

14   “particular deference to credibility findings based on

15   demeanor,” Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir.

16   2006 (internal quotation marks omitted), as “demeanor is

17   paradigmatically the sort of evidence that a fact-finder is

18   best positioned to evaluate,” Li Zu Guan v. I.N.S., 453 F.3d

19   129, 140 (2d Cir. 2006).

20       Because the IJ’s credibility determination was

21   supported by substantial evidence, we need not reach the

22   agency’s alternative burden findings.

23

                                    4
 1       Finally, Mei argues that the agency erred in denying

 2   his CAT claim.   However, because Mei’s CAT claim was based

 3   on the same factual predicate as his asylum and withholding

 4   of removal claims, the agency’s adverse credibility

 5   determination was a sufficient basis for the denial of CAT

 6   relief.   See Xue Hong Yang v. U.S. Dep’t of Justice, 426

 7   F.3d 520, 523 (2d Cir. 2005).

 8       For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

11   is 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




                                     5
