Filed: Feb. 05, 2018
Latest Update: Mar. 03, 2020
Summary: 16-3933 Cao v. Sessions BIA Christensen, IJ A206 068 543 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 TH
Summary: 16-3933 Cao v. Sessions BIA Christensen, IJ A206 068 543 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..
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16-3933
Cao v. Sessions
BIA
Christensen, IJ
A206 068 543
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 5th day of February, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 HU CAO,
14 Petitioner,
15
16 v. 16-3933
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Keith S. Barnett, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Margaret Kuehne
27 Taylor, Senior Litigation Counsel;
28 Patricia E. Bruckner, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
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 petition for review
4 is DENIED.
5 Petitioner Hu Cao, a native and citizen of the People’s
6 Republic of China, seeks review of a November 4, 2016,
7 decision of the BIA affirming an October 30, 2015, decision
8 of an Immigration Judge (“IJ”) denying Cao’s application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Hu Cao, No. A206
11 068 543 (B.I.A. Nov. 4, 2016), aff’g No. A206 068 543
12 (Immig. Ct. N.Y. City Oct. 30, 2015). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as modified and supplemented by the
17 BIA. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
18 522 (2d Cir. 2005); Yan Chen v. Gonzales,
417 F.3d 268, 271
19 (2d Cir. 2005). The applicable standards of review are well
20 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
21 Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
22 “Considering the totality of the circumstances, and all
23 relevant factors, a trier of fact may base a credibility
2
1 determination on . . . the consistency between the
2 applicant’s or witness’s written and oral statements . . .
3 , the internal consistency of each such statement, [and]
4 the consistency of such statements with other evidence of
5 record . . . without regard to whether an inconsistency,
6 inaccuracy, or falsehood goes to the heart of the
7 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
8 Lin, 534 F.3d at 163-64. Substantial evidence supports the
9 agency’s determination that Cao was not credible as to his
10 claims that Chinese officials had harassed him and forced
11 him into hiding after expropriating and destroying his
12 farm, and that they had threatened to arrest him after
13 discovering his membership in the China Democracy Party
14 (“CDP”) in the United States.
15 The agency reasonably found Cao’s testimony that
16 officials had harassed him daily and caused him to live in
17 hiding for a year inconsistent with his wife’s letter,
18 which omitted any mention of these events even though she
19 claimed to write to inform the IJ how the Chinese
20 government had threatened and persecuted her husband. See
21 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin,
534
22 F.3d at 166-67 & n.3 (relying on omissions from supporting
23 letters and noting that “[a]n inconsistency and an omission
3
1 are . . . functionally equivalent.”). Cao did not provide
2 a compelling explanation for this inconsistency. See
3 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
4 petitioner must do more than offer a plausible explanation
5 for his inconsistent statements to secure relief; he must
6 demonstrate that a reasonable fact-finder would be
7 compelled to credit his testimony.” (internal quotation
8 marks omitted)). Furthermore, the agency reasonably relied
9 on Cao’s failure to provide any evidence to corroborate
10 this claim, or even establish that he had owned a farm in
11 China. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
12 Cir. 2007) (“An applicant’s failure to corroborate his . .
13 . testimony may bear on credibility, because the absence of
14 corroboration in general makes an applicant unable to
15 rehabilitate testimony that has already been called into
16 question.”).
17 The agency also reasonably relied on an inconsistency
18 between [i] Cao’s testimony that he had informed his
19 witness, the chairman of the East Coast CDP, that Chinese
20 officials had discovered his membership in the CDP and
21 threatened to arrest him, and [ii] the chairman’s
22 affidavit, which omitted this information. See 8 U.S.C.
23 § 1158(b)(1)(B)(iii); see also Xiu Xia
Lin, 534 F.3d at
4
1 166-67 & n.3. Furthermore, the chairman’s testimony did
2 not resolve this inconsistency. Rather than state that he
3 did not know if Chinese officials were aware of Cao’s CDP
4 activities, the chairman testified evasively, ultimately
5 suggesting that officials “should know” because it was
6 common sense. Only after being asked a third time whether
7 Cao had concerns that the government was aware of his
8 activities did the chairman state that he did not remember
9 Cao’s specific situation given the large number of CDP
10 members. The agency was not compelled to credit this
11 explanation because the chairman, who had testified in at
12 least 100 asylum cases, remembered more detailed
13 information about Cao, such as the month they had met and
14 the day Cao had joined the party. See
Majidi, 430 F.3d at
15 80.
16 Given the inconsistencies and the lack of corroboration
17 relating both to past events in China and the Chinese
18 government’s purported discovery of Cao’s CDP membership in
19 the United States, the agency’s adverse credibility
20 determination is supported by substantial evidence and is
21 dispositive of asylum, withholding of removal, and CAT
22 relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v.
23 Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
5
1 We do not consider the BIA’s decision insofar as it
2 declined to remand based on the evidence Cao submitted on
3 appeal because Cao does not challenge that decision in his
4 brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,
5 545 n.7 (2d Cir. 2005).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
6
