         13-457
         Meng v. Holder
                                                                                        BIA
                                                                                  Videla, IJ
                                                                               A087 790 819
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of February, two thousand fifteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DENNY CHIN,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       QINGQIANG MENG,
14                Petitioner,
15
16                        v.                                    13-457
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:              David A. Bredin, Law Office of David
24                                     A. Bredin, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Carl McIntyre, Assistant
28                                     Director; Brooke M. Maurer, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington, D.C.
 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 petition for review

 4   is DENIED.

 5       Qingqiang Meng, a native and citizen of the People’s

 6   Republic of China, seeks review of a January 15, 2013,

 7   decision of the BIA affirming the July 13, 2011, decision of

 8   Immigration Judge (“IJ”) Gabriel C. Videla, which denied

 9   Qingqiang Meng’s application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).     In re Qingqiang Meng, No. A087 790 819 (B.I.A.

12   Jan. 15, 2013), aff’g No. A087 790 819 (Immig. Ct. N.Y. City

13   July 13, 2011).    We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we review the

16   IJ’s decision, including the portions not explicitly

17   discussed by the BIA.     See Yun-Zui Guan v. Gonzales, 432

18   F.3d 391, 394 (2d Cir. 2005) (per curiam).     The applicable

19   standards of review are well established.     See 8 U.S.C.

20   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

21   (2d Cir. 2009).

22

23

                                     2
 1   I. Adverse Credibility Determination

 2       For asylum applications such as Meng’s, governed by the

 3   REAL ID Act of 2005, the agency may, considering the

 4   totality of the circumstances, base a credibility finding on

 5   an asylum applicant’s “demeanor, candor, or responsiveness,”

 6   the plausibility of his account, and inconsistencies in his

 7   statements, without regard to whether they go “to the heart

 8   of the applicant’s claim,” so long as they reasonably

 9   support an inference that the applicant is not credible.   8

10   U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534

11   F.3d 162, 167 (2d Cir. 2008) (per curiam).   We “defer . . .

12   to an IJ’s credibility determination unless, from the

13   totality of the circumstances, it is plain that no

14   reasonable fact-finder could make such an adverse

15   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.

16       The agency erred when it found that Meng omitted an

17   important part of his claim from his asylum application.

18   However, because the agency’s conclusion that aspects of

19   Meng’s claim were implausible is tethered to record

20   evidence, and the agency found other inconsistencies in

21   Meng’s testimony which are supported by the record,

22   substantial evidence supports the adverse credibility


                                   3
 1   determination.     Accordingly, remand would be futile.    See

 2   Diallo v. U.S. Dep’t of Justice, 548 F.3d 232, 235 & n.3 (2d

 3   Cir. 2008).

 4       The IJ found, reasonably, that aspects of Meng’s

 5   testimony were implausible.     Specifically, the IJ found

 6   implausible Meng’s testimony that although he had been

 7   living in hiding since 2006, in 2008 he went to the Public

 8   Security Office and gave officials there his name and

 9   address to renew his passport.      Furthermore, given Meng’s

10   stated fear of sterilization, the IJ found implausible that

11   he was able to travel as part of a tourist group to Malaysia

12   and Hong Kong, and that he did not attempt to remain in

13   Malaysia and not return to China.      The IJ also found Meng’s

14   explanations for why he was unable to stay in Malaysia

15   unconvincing – Meng first testified that he would have

16   trouble finding a job in Malaysia, and then that he did not

17   know that Malaysia was a country he could immigrate to, and

18   finally that the tour guide would not allow him to stay in

19   Malaysia.     The IJ’s implausibility findings are supported by

20   substantial evidence, because the reasons for his

21   incredulity are self-evident.       See Wensheng Yan v. Mukasey,

22   509 F.3d 63, 67 (2d Cir. 2007) (per curiam).


                                     4
 1       The IJ found that Meng’s testimony often seemed to be

 2   non-responsive, evasive, and as if he was “not really

 3   testifying from actual experience.”    We generally afford

 4   particular deference to an IJ’s assessment of an applicant’s

 5   demeanor because the IJ’s ability to observe the witness

 6   places him in the best position to evaluate credibility.

 7   See Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d

 8   Cir. 2005).   Moreover, we can be “more confident in our

 9   review of observations about an applicant’s demeanor where

10   . . . they are supported by specific examples of

11   inconsistent testimony.”     Li Hua Lin v. U.S. Dep’t of

12   Justice, 453 F.3d 99, 109 (2d Cir. 2006).     Here, the IJ

13   found that Meng testified inconsistently in explaining why

14   he did not provide corroborating evidence, and this finding

15   is supported by the record.     Furthermore, Meng acknowledged

16   that as a result of the lack of corroboration, the IJ had no

17   evidence other than Meng’s own testimony that anyone sought

18   to sterilize him.     Cf. Biao Yang v. Gonzales, 496 F.3d 268,

19   273 (2d Cir. 2007).

20       In light of Meng’s unresponsive, inconsistent, and

21   implausible testimony, we conclude that the totality of the

22   circumstances supports the agency’s adverse credibility

23   determination..     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
                                     5
 1   Lin, 534 F.3d at 167.     Even discounting the IJ’s erroneous

 2   omission finding, the record does not compel a contrary

 3   finding.     See Xiu Xia Lin, 534 F.3d at 167.   Because the

 4   only evidence of a threat to Meng’s life or freedom depended

 5   upon his credibility, the adverse credibility determination

 6   necessarily precludes success on this claim for asylum,

 7   withholding of removal, and CAT relief.     See Paul v.

 8   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006); Xue Hong Yang

 9   v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

10   II. Future Persecution

11       Meng contends that he fears future persecution based on

12   his Christian faith.     Because Meng did not challenge the

13   IJ’s conclusion regarding a pattern or practice of

14   persecution before the BIA, we decline to consider the

15   issue.     Cf. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

16   104, 119-20, 124 (2d Cir. 2007).

17       As the agency concluded, Meng did not present any

18   evidence that Chinese authorities were aware that he was

19   Christian, or that he attended church in the United States.

20   The IJ also noted that Meng testified that his wife had been

21   a practicing Christian for years in China, and had not

22   encountered any problems with the authorities on the basis

23   of her religion.    Accordingly, the agency did not err in
                                     6
 1   concluding that Meng did not show a well-founded fear of

 2   future persecution.   See Hongsheng Leng v. Mukasey, 528 F.3d

 3   135, 143 (2d Cir. 2008) (per curiam); Melgar de Torres v.

 4   Reno, 191 F.3d 307, 313 (2d Cir. 1999).    Because Meng was

 5   unable to establish the objective likelihood of harm based

 6   on his Christian faith needed to make out an asylum claim,

 7   he was necessarily unable to meet the higher standard

 8   required to succeed on a claim for withholding of removal or

 9   CAT relief.   See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d

10   Cir. 2010).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DENIED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22
23




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