10-3335-ag
Zhao v. Holder
BIA
Nelson, IJ
A099 679 936
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 New
4 York, on the 8th day of July, two thousand eleven.
5
6 Present:
7 Guido Calabresi,
8 Gerard E. Lynch,
9 Raymond J. Lohier, Jr.,
10 Circuit Judges.
11 _____________________________________________
12
13 Mengquan Zhao,
14 Petitioner,
15
16 v. 10-3335-ag
17 NAC
18
19 Eric H. Holder, Jr., United States Attorney General,
20 Respondent.
21 ______________________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 James E. Grimes, Senior Litigation
28 Counsel; William C. Minick, Trial
29 Attorney, Civil Division, Office of
30 Immigration Litigation, U.S. Department
31 of Justice, Washington, D.C.
32
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 motion for summary
4 denial/dismissal is DENIED and that the petition for review is
5 DENIED.
6 Petitioner Mengquan Zhao, a native and citizen of China,
7 seeks review of a July 19, 2010, decision of the BIA affirming
8 the September 24, 2008, decision of Immigration Judge (“IJ”)
9 Barbara A. Nelson denying his application for asylum,
10 withholding of removal, and relief under the Convention
11 Against Torture (“CAT”). In re Mengquan Zhao, No. A099 679 936
12 (B.I.A. July 19, 2010), aff’g No. A099 679 936 (Immig. Ct.
13 N.Y.C. Sept. 24, 2008).
14 Zhao’s requests for relief are based on the claims that
15 his wife had been forcibly aborted, that he and his wife had
16 been forced to pay a fine for her unauthorized pregnancy, and
17 that he feared he would be persecuted if returned to China as
18 a result of their violation of China’s family planning policy.
19 Certified Administrative Record (“CAR”) at 221-34. The IJ
20 found that Zhao was not credible, pointing to inconsistencies
21 between Zhao’s testimony and his written statement as well as
22 inconsistencies between two letters from Zhao’s wife, noting
23 that it appeared that Zhao changed his story to reflect “other
1 resistance” after this court clarified that an applicant is
2 not eligible for asylum based on the forced abortion of his
3 spouse. Id. at 72-75 (citing Shi Liang Lin v. U.S. Dep’t of
4 Justice, 494 F.3d 296 (2d Cir. 2007)). We assume the parties’
5 familiarity with the additional underlying facts and
6 procedural history of the case.
7 Contending that Zhao’s petition is frivolous, Respondent
8 moved for summary denial of the petition. This court may
9 “dismiss [a] . . . petition for review as frivolous when the .
10 . . petition presents no arguably meritorious issue for []
11 consideration.” Pillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995).
12 Accordingly, we treat this motion as one for summary
13 dismissal. Summary action is, however, “a rare exception to
14 the completion of the appeal process[,] . . . available only
15 if an appeal is truly ‘frivolous.’” United States v. Davis,
16 598 F.3d 10, 13 (2d Cir. 2009) (distinguishing between an easy
17 case for which the outcome “seems obvious”and a frivolous case
18 that is “inarguable or fanciful”); accord Love v. McCray, 413
19 F.3d 192, 194 (2d Cir. 2005). A petition is frivolous if it
20 lacks an arguable basis in law or fact such that it presents
21 an “indisputably meritless legal theory” or “factual
22 contentions [that] are clearly baseless.” Neitzke v.
23 Williams, 490 U.S. 319, 327 (1989); see also Der-Rong Chour v.
1 INS, 578 F.2d 464, 468 (2d Cir. 1978) (granting summary denial
2 where the petition raised no “colorable legal or factual basis
3 for the relief sought”); Pillay, 45 F.3d at 16.
4 Zhao’s argument–that the IJ erred in finding him
5 incredible–is comfortably within the range of arguments we
6 entertain in typical immigration proceedings. Were we to agree
7 with him that the IJ erred, he would be entitled to have his
8 case remanded for reconsideration. This makes his legal theory
9 not “indisputably meritless.” Indeed, this case is precisely
10 the type in which the outcome “seems obvious” but the
11 arguments are not “fanciful.” Therefore, summary dismissal is
12 inappropriate here. Respondent’s motion is DENIED.
13 Because both parties have submitted briefs dealing with
14 the merits of Zhao’s petition, however, in the interests of
15 judicial economy, we see fit to dispose of the petition on its
16 merits now. Under the circumstances of this case, we consider
17 both the IJ’s and the BIA’s opinions “for the sake of
18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
19 2008) (internal quotation marks omitted). The applicable
20 standards of review are well established. 8 U.S.C.
21 § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95
22 (2d Cir. 2008). Zhao’s application is governed by the REAL ID
23 Act, and so the agency may base a credibility finding on an
1 asylum applicant’s demeanor, the plausibility of his or her
2 account, and inconsistencies in his or her statements, without
3 regard to whether they go “to the heart of the applicant’s
4 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
5 We “defer . . . to an IJ’s credibility determination
6 unless, from the totality of the circumstances, it is plain
7 that no reasonable fact-finder could make such an adverse
8 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
9 167 (2d Cir. 2008). Given the omissions in Zhao’s written
10 application and in the letter submitted by his wife,
11 substantial evidence supports the IJ’s adverse credibility
12 determination. See 8 U.S.C. § 1231(b)(3)(c) (cross-
13 referencing 8 U.S.C. § 1158(b)(1)(B)(iii)). Nothing Zhao
14 presents in his petition compels reversal.
15 Because Zhao’s claims all were based on the same factual
16 predicate, the IJ’s adverse credibility determination
17 constitutes a proper basis for the denial of his withholding
18 of removal and CAT claims as well. See Paul v. Gonzales, 444
19 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
20 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
21
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of removal
24 that the Court previously granted in this petition is VACATED,
1 and any pending motion for a stay of removal in this petition
2 is DISMISSED as moot. Any pending request for oral argument
3 in this petition is DENIED in accordance with Federal Rule of
4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
5 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9