         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
 4       New York, on the 13th 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
21




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