Meng v. Sessions
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Opinion
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
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