Filed: Mar. 30, 2015
Latest Update: Mar. 02, 2020
Summary: 14-29 Cai v. Holder BIA Cheng, IJ A205 030 582 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: 14-29 Cai v. Holder BIA Cheng, IJ A205 030 582 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 ..
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14-29
Cai v. Holder
BIA
Cheng, IJ
A205 030 582
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 30th day of March, two thousand fifteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YUE CAI,
14 Petitioner,
15
16 v. 14-29
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Stuart Altman, New York, NY.
24
25 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
26 Attorney General, Civil Division;
27 Paul Fiorino, Senior Litigation
28 Counsel; Judith R. O’Sullivan, Trial
29 Attorney, Office of Immigration
1 Litigation, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Yue Cai, a native and citizen of China, seeks review of
9 a December 13, 2013, decision of the BIA affirming the
10 February 14, 2012, decision of an Immigration Judge (“IJ”)
11 denying her application for asylum, withholding of removal,
12 and relief under the Convention Against Torture (“CAT”). In
13 re Yue Cai, No. A205 030 582 (B.I.A. Dec. 13, 2013), aff’g
14 No. A 205 030 582 (Immig. Ct. N.Y. City Feb. 14, 2012). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history in this case.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as modified by the BIA. Xue Hong Yang v.
19 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); see
20 Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 122 (2d
21 Cir. 2007) (explaining that we “consider only those issues
22 that formed the basis for [the BIA’s] decision.”). Because
23 the BIA declined to review the IJ’s alternative bases for
24 denying relief, we review only the agency’s adverse
2
1 credibility determination. The applicable standards of
2 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
3 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)
4 (per curiam).
5 For asylum applications, like Cai’s, governed by the
6 REAL ID Act, the agency may, “[c]onsidering the totality of
7 the circumstances,” base a credibility finding on an asylum
8 applicant’s “demeanor, candor, or responsiveness,” the
9 plausibility of her account, and inconsistencies in her
10 statements, “without regard to whether” they go “to the
11 heart of the applicant’s claim,” so long as they reasonably
12 support an inference that the applicant is not credible. 8
13 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
Lin, 534 F.3d at
14 167. “We defer therefore to an IJ’s credibility
15 determination unless, from the totality of the
16 circumstances, it is plain that no reasonable fact-finder
17 could make such an adverse credibility ruling.” Xiu Xia
18
Lin, 534 F.3d at 167. Substantial evidence supports the
19 IJ’s finding that Cai was not credible with respect to her
20 claim of future persecution based on her Christianity.
21 The IJ did not err in basing the adverse credibility
22 determination, in part, on Cai’s demeanor. See 8 U.S.C.
3
1 § 1158(b)(1)(B)(iii); Li Zu Guan v. INS, 453 F.3d 129, 140
2 (2d Cir. 2006) (holding that “demeanor is paradigmatically
3 the sort of evidence that a fact-finder is best positioned
4 to evaluate”). The record supports the IJ’s findings that
5 Cai’s answers were nonresponsive and that her testimony
6 contained many pauses. For example, when the IJ asked Cai
7 to explain why the fact of her aunt’s surveillance was
8 omitted from her aunt’s letter, she first gave an indirect
9 answer, prompting the IJ to point out her nonresponsiveness
10 and repeat the question, to which Cai answered that she was
11 unsure. The IJ then asked Cai why her application did not
12 mention the surveillance, which was followed by a pause,
13 another request that she answer the question, and finally
14 Cai’s response that she “didn’t write that.” While Cai
15 argues that the IJ was badgering or confusing her, the
16 record shows that the IJ was not demonstrating hostility;
17 instead, she was developing the record and seeking
18 explanations, as is the role of the IJ. See 8 U.S.C.
19 § 1229a(b)(1) (stating that the IJ has the authority to
20 “interrogate, examine, and cross-examine the alien”); see
21 also Ming Shi Xue v. Bd. of Immigration Appeals,
439 F.3d
22 111, 119 (2d Cir. 2006) (explaining that the IJ should take
4
1 an “active role” in “presenting and clarifying an asylum
2 applicant’s case”); cf. Islam v. Gonzales, 469 F.3d 53, 55
3 (2d Cir. 2006) (remanding because IJ showed bias and
4 hostility by "repeatedly address[ing] [the petitioner] in an
5 argumentative, sarcastic, impolite, and overly hostile
6 manner that went beyond fact-finding and questioning").
7 Cai’s argument that she paused because she did not
8 understand the questions is also unpersuasive because she
9 never expressed any confusion to the IJ. Because the record
10 reflects these specific instances of nonresponsive testimony
11 and pauses, and because the IJ was best positioned to assess
12 Cai’s manner while testifying, we afford the demeanor
13 finding particular deference. See Zhou Yun Zhang v. INS,
14
386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other
15 grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d
16 296 (2d Cir. 2007).
17 The IJ also properly relied on an omission from Cai’s
18 documentary evidence, which further supports the IJ’s
19 adverse credibility finding. See 8 U.S.C. §
20 1158(b)(1)(B)(iii); see also Xiu Xia
Lin, 534 F.3d at 165-
21 66. An omission in an applicant’s testimony or supporting
22 documents is “functionally equivalent” to an inconsistency
23 and “can serve as a proper basis for an adverse credibility
5
1 determination.” Xiu Xia Lin, 534 F.3d at 166 n.3. As
2 discussed above, Cai’s application and her aunt’s letter
3 fail to mention that the aunt is under surveillance by the
4 Chinese government. The omission is material because that
5 surveillance was the reason Cai feared that the Chinese
6 government would discover her practice of Christianity.
7 Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008)
8 (per curiam) (holding that aliens claiming future
9 persecution must show that authorities “are either aware . .
10 . or likely to become aware of his activities”).
11 Accordingly, the IJ was not compelled to credit Cai’s
12 explanation that she did not think about the surveillance
13 when preparing her application. Majidi v. Gonzales, 430
14 F.3d 77, 80-81 (2d Cir. 2005) (holding that agency need not
15 credit applicant’s explanations for inconsistent testimony
16 unless explanations would compel reasonable fact-finder to
17 do so). While Cai argues that there is no evidence to show
18 when the surveillance began or when Cai became aware of it,
19 which could explain the omission from the application and
20 letter, her argument is unpersuasive in light of her
21 testimony. She testified that her cousin–who lived in the
22 United States, testified on her behalf, and had introduced
23 her to Christianity–was aware of the surveillance in 2010 or
6
1 2011, or after his arrival in the United States, in
2 September 2010. Cai’s personal statement and her aunt’s
3 letter are both dated September 2011. Accordingly, the
4 agency reasonably relied on this omission to support the
5 adverse credibility determination.
6 Given the agency’s findings regarding Cai’s demeanor
7 and the omission relating to her fear of persecution, the
8 “totality of circumstances” supports the agency’s adverse
9 credibility determination. The omission calls into question
10 Cai’s concern that the Chinese authorities will become aware
11 of her religion and that she will suffer future harm. Xiu
12 Xia Lin, 534 F.3d at 167. As all of Cai’s claims share the
13 same factual predicate, the adverse credibility
14 determination is dispositive of asylum, withholding of
15 removal, and CAT relief. Paul v. Gonzales,
444 F.3d 148,
16 156-57 (2d Cir. 2006).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
23
7
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
7
8
