Qiang Cao v. Holder , 534 F. App'x 13 ( 2013 )

12-242
Cao v. Holder
BIA
Laforest, IJ
A089 198 266
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 9th day of August, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 QIANG CAO,
14 Petitioner,
15
16 v. 12-242
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Nataliya I. Gavlin, Moslemi &
24 Associates, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Ernesto H. Molina,
28 Jr., Assistant Director; Joanna L.
29 Watson, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 Qiang Cao, a native and citizen of the People’s
6 Republic of China, seeks review of a December 23, 2011,
7 decision of the BIA affirming the October 9, 2009, decision
8 of Immigration Judge (“IJ”) Brigitte Laforest, which denied
9 his application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Qiang Cao, No. A089 198 266 (B.I.A. Dec. 23, 2011), aff’g
12 No. A089 198 266 (Immig. Ct. N.Y. City Oct. 9, 2009). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
20 562 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications such as Cao’s, governed by the
22 amendments to the Immigration and Nationality Act by the
23 REAL ID Act of 2005, the agency “may rely on any
2
1 inconsistency or omission in making an adverse credibility
2 determination as long as the ‘totality of the circumstances’
3 establishes that an asylum applicant is not credible.” Xiu
4 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per
5 curiam) (emphasis in original) (quoting 8 U.S.C.
6 § 1158(b)(1)(B)(iii)). Cao challenges only the agency’s
7 adverse credibility determination.
8 The agency found that Cao’s testimony was incredible,
9 in part, because his asylum application omitted his illegal
10 departure from China in 1999, arrest and year-long
11 immigration detention in Canada, and 2000 deportation to
12 China. Despite Cao’s argument to the contrary, the BIA
13 reasonably concluded that his omissions provided substantial
14 evidence of the adverse credibility determination because
15 they were essential factual allegations underlying his
16 claim. Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d
17 Cir. 2005) (per curiam). Thus, Cao’s explanations for his
18 omission – that he “forgot,” and thought it was not
19 important - were insufficient to compel a reasonable fact-
20 finder to credit his testimony. Majidi v. Gonzales, 430
21 F.3d 77, 80-81 (2d Cir. 2005).
22
3
1 The agency also reasonably discredited Cao’s testimony
2 because he testified inconsistently about whether he had
3 previously applied for a United States visa. Xiu Xia Lin,
4 534 F.3d at 167. Cao’s contention that the IJ misstated his
5 testimony about his prior visa applications is not supported
6 by the administrative record.
7 Finally, Cao contends that his evidence, including a
8 fine receipt indicating his payment for “one extra birth”
9 and his wife’s sterilization certificate, sufficiently
10 corroborated his claim. However, the agency reasonably
11 doubted the authenticity of these documents and accorded
12 them little weight. Xiao Ji Chen v. U.S. Dep’t of Justice,
13 471 F.3d 315, 342 (2d Cir. 2006); Xiao Xing Ni v. Gonzales,
14 494 F.3d 260, 263 (2d Cir. 2007). Moreover, the BIA
15 reasonably determined that letters from Cao’s family members
16 failed to independently establish his eligibility for relief
17 because they lacked detailed information about the alleged
18 forcible sterilization, and the family members were
19 unavailable for cross-examination. Xiao Ji Chen, 471 F.3d
20 at 342; Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 215 (BIA
21 2010)(citing Jian Hui Shao v. Mukasey, 546 F.3d 138, 160-61
22 (2d Cir. 2008)), overruled on other grounds by Hui Lin Huang
23 v. Holder, 677 F.3d 130 (2d Cir. 2012).
4
1 We have considered Cao’s remaining arguments, and find
2 that they lack merit. Accordingly, given the omissions in
3 his asylum application, inconsistent testimony, and lack of
4 corroboration, we will defer to the agency’s adverse
5 credibility determination. Xiu Xia Lin, 534 F.3d at 167.
6 As the only evidence of a threat to Cao’s life or freedom
7 depended upon his credibility, the adverse credibility
8 determination in this case is dispositive of his claims for
9 asylum, withholding of removal, and CAT relief. See Paul v.
10 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
11 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, the pending motion
14 for a stay of removal in this petition is DENIED as moot.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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