Xue Jian Mei v. Holder ( 2011 )

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
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