     17-217
     Meng v. Sessions
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A200 275 830


                             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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 7th day of September,two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHENLIANG MENG,
14
15                            Petitioner,
16
17                      v.                                       17-217
18                                                               NAC
19
20   JEFFERSON B. SESSIONS III,
21   UNITED STATES ATTORNEY GENERAL,
22
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                        Louis H. Klein, The Kasen Law
27                                          Firm, PLLC, Flushing, NY.
28   FOR RESPONDENT:                        Chad A. Readler, Acting Assistant
 1                                  Attorney General; Anthony P.
 2                                  Nicastro, Assistant Director; S.
 3                                  Nicole Nardone, Trial Attorney,
 4                                  Office of Immigration Litigation,
 5                                  United   States   Department   of
 6                                  Justice, Washington, DC.
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED.

12       Petitioner Zhenliang Meng, a native and citizen of the

13   People’s Republic of China, seeks review of a December 28,

14   2016, decision of the BIA affirming a December 10, 2015,

15   decision   of   an   Immigration   Judge   (“IJ”)   denying   Meng’s

16   application for asylum, withholding of removal, and relief

17   under the Convention Against Torture (“CAT”).       In re Zhenliang

18   Meng, No. A200 275 830 (B.I.A. Dec. 28, 2016), aff’g No. A200

19   275 830 (Immig. Ct. N.Y. City Dec. 10, 2015).        We assume the

20   parties’ familiarity with the underlying facts and procedural

21   history in this case.

22       Under the circumstances of this case, we have reviewed

23   the IJ’s decision as supplemented by the BIA.         See Yan Chen

24   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).       The applicable

25   standards of review are well established: we review factual

26   findings for substantial evidence and legal issues de novo.

                                        2
 1   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534

 2   F.3d 162, 165-66 (2d Cir. 2008); Yanqin Weng v. Holder, 562

 3   F.3d 510, 513 (2d Cir. 2009).

 4          The governing REAL ID Act credibility standard provides

 5   that    the    agency    must    “[c]onsider[]        the   totality      of   the

 6   circumstances,” and may base a credibility finding on an

 7   applicant’s         “demeanor,     candor,     or     responsiveness,”         the

 8   plausibility of his account, and inconsistencies or omissions

 9   in     his     or     his     witness’s       statements.             8   U.S.C.

10   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-

11   64,     166-67.         “We     defer . . . to        an    IJ’s     credibility

12   determination unless . . . it is plain that no reasonable

13   fact-finder could make such an adverse credibility ruling.”

14   Xiu Xia Lin, 534 F.3d at 167.

15          Initially,       while    Meng    generally         asserts    that     any

16   inconsistencies may be attributed to his lack of education

17   and nervousness, he has waived review of the specific grounds

18   for    the    adverse    credibility        determination      by    failing    to

19   meaningfully challenge them in his brief.                  See Norton v. Sam’s

20   Club,    145    F.3d     114,    117    (2d    Cir.    1998)       (“Issues    not

21   sufficiently argued in the briefs are considered waived and

22   normally will not be addressed on appeal.”).                         Given this


                                             3
 1   failure to raise specific challenges and the fact that the

 2   record   reflects     that    Meng’s     testimony   and   evidence      was

 3   inconsistent regarding, among other things, whether and when

 4   his wife was sterilized, and whether family planning officers

 5   broke his leg, the agency’s findings stand as appropriate

 6   bases for the credibility determination.             Xiu Xia Lin, 534

 7   F.3d at 163-64, 166-67; Shunfu Li v. Mukasey, 529 F.3d 141,

 8   146-47 (2d Cir. 2008).            Meng’s general assertion that any

 9   discrepancies      resulted   from     his   nervousness   and    lack    of

10   education does not resolve the inconsistencies.                  Majidi v.

11   Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

12   do   more   than     offer    a    plausible    explanation      for     his

13   inconsistent statements to secure relief; he must demonstrate

14   that a reasonable fact-finder would be compelled to credit

15   his testimony.” (internal quotation marks omitted)).

16        We reject Meng’s due process challenges to admission of

17   the record of his asylum interview.            “Evidence is admissible

18   provided that it does not violate the alien’s right to due

19   process of law.”      Zerrei v. Gonzales, 471 F.3d 342, 346 (2d

20   Cir. 2006) (brackets omitted) (quoting Zhen Nan Lin v. U.S.

21   Dep’t of Justice, 459 F.3d 255, 268 (2d Cir. 2006)).                “[D]ue

22   process is satisfied if the evidence ‘is probative and its


                                          4
 1   use is fundamentally fair,’ fairness in this context being

 2   ‘closely related to the reliability and trustworthiness of

 3   the evidence.’”      Id.    (quoting Zhen Nan Lin, 459 F.3d at 268).

 4   First,     because    the    interview     record    was   admitted      as

 5   impeachment      evidence,    it   was    properly   admitted      at   the

 6   hearing.    See Immig. Court Practice Manual Ch. 3.1(b)(ii)(A)

 7   (“For individual calendar hearings involving non-detained

 8   aliens, filings must be submitted at least fifteen (15) days

 9   in advance of the hearing.         This provision does not apply to

10   exhibits    or    witnesses     offered    solely    to    rebut    and/or

11   impeach.”).      Second, the agency reasonably relied on Meng’s

12   statements at the interview because the record contained a

13   clear and detailed summary of his statements.              See Diallo v.

14   Gonzales, 445 F.3d 624, 632 (2d Cir. 2006).                  Third, the

15   interview record was admissible without the testimony of the

16   preparing officer because it was a record prepared by a

17   government official “in the ordinary course of [his] duties.”

18   Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996) (explaining

19   that “a written public record is often more accurate than the

20   potentially hazy memory of a public official who must deal

21   with hundreds of instances of similar conduct”).

22       Given the substantial inconsistencies that undermined


                                         5
 1   both Meng’s testimony and his corroborating evidence, the

 2   adverse    credibility      determination     is   supported   by     the

 3   “totality of the circumstances.”           Xiu Xia Lin, 534 F.3d at

4    167.    The adverse credibility determination is dispositive

5    because asylum, withholding of removal, and CAT relief were

 6   all    based   on   the   same   factual   predicate.   See    Paul   v.

7    Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

 8          For the foregoing reasons, the petition for review is

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

10   that the Court previously granted in this petition is VACATED,

11   and any pending motion for a stay of removal in this petition

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

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

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

15   34.1(b).

16                                FOR THE COURT:
17                                Catherine O’Hagan Wolfe, Clerk




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