10-4529-ag

Shao v. Holder

BIA

Balasquide, IJ

A078 038 169

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 York, on the 23rd 4 day of December, two thousand eleven.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 REENA RAGGI,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 ______________________________________

12

13 XUE EIAO SHAO, AKA XUE CHAO SHAO,

14 Petitioner, 

15

16 v. 10-4529-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Jed S. Wasserman, Kuzmin &

24 Associates, P.C., New York, N.Y.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; David V. Bernal, Assistant

28 Director; Stuart S. Nickum, Trial

29 Attorney, Office of Immigration
2

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 Xue Eiao Shao, a native and citizen of China, seeks

9 review of an October 4, 2010, order of the BIA affirming the

10 December 1, 2008, decision of Immigration Judge (“IJ”)

11 Javier E. Balasquide, which denied Shao’s application for

12 asylum, withholding of removal, and relief under the

13 Convention Against Torture (“CAT”). In re Xue Eiao Shao,

14 No. A078 038 169 (B.I.A. Oct. 4, 2010), aff’g No. A078 038

15 169 (Immig. Ct. N.Y. City Dec. 1, 2008). We assume the

16 parties’ familiarity with the underlying facts and

17 procedural history in this case.

18 Under the circumstances of this case, we have reviewed

19 the decision of the IJ as supplemented by the BIA. See Yan

20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

21 applicable standards of review are well-established. See

22 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

23 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110

24 (2d Cir. 2008). An adverse credibility determination must
3

1 be based on “specific, cogent” reasons bearing a “legitimate

2 nexus” to the finding. See Zhou Yun Zhang v. INS, 386 F.3d

3 66, 74 (2d Cir. 2004) (quoting Secaida-Rosales v. INS, 331

4 F.3d 297, 307 (2d Cir. 2003)).

5 The agency reasonably relied on the inconsistencies

6 between Shao’s testimony and his fiancée’s statements

7 regarding the timing and cause of her abortion and the

8 payment of fines in finding him not credible because Shao’s

9 incident with the family planning officials and the harm he

10 and his fiancée suffered are the basis of his asylum claim.

11 See Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (2d Cir.

12 2002) (holding that an IJ may base an adverse credibility

13 determination on discrepancies that go to the “heart of the

14 asylum claim”). 

15 Contrary to Shao’s argument, the agency did not err in

16 rejecting his explanations for his fiancée’s statements

17 because, although Shao asserted that she was confused

18 regarding the timing of her abortion, she provided specific

19 dates, and a motivation for the abortion incompatible with

20 Shao’s testimony. See Majidi v. Gonzales, 430 F.3d 77,

21 80-81 (2d Cir. 2005) (concluding that the agency need not

22 credit an applicant’s explanations for inconsistent
4

1 testimony unless those explanations would compel a

2 reasonable fact-finder to do so). Moreover, the BIA did not

3 exceed its authority in rejecting Shao’s argument that the

4 family planning violation notice, dated January 2000,

5 supported his testimony. While the BIA generally should not

6 engage in fact-finding on appeal, see 8 C.F.R.

7 § 1003.1(d)(3)(iv), it acted within its authority in

8 reviewing the record created by the IJ and rejecting Shao’s

9 assertion that the notice corroborated his testimony, as it

10 was inconsistent with his statements that the authorities

11 first learned of the pregnancy in February 2000. See

12 Belortaja v. Gonzales, 484 F.3d 619, 624-25 (2d Cir. 2007)

13 (holding that BIA did not exceed its authority in making an

14 adverse credibility determination based on evidence

15 presented to the IJ).

16 The adverse credibility determination was further

17 supported by the agency’s finding that Shao’s omission of

18 the police visit to his house and his time in hiding from

19 his initial asylum application undermined his credibility. 

20 See Tu Lin v. Gonzales, 446 F.3d 395, 402-03 (2d Cir. 2006)

21 (concluding that because adverse credibility determinations

22 are based on the whole record, omissions from an asylum
1 Contrary to the government’s argument, Shao raised

the issue of his illegal departure in his brief before the

BIA.

5

1 application may, in light of other omissions and

2 inconsistencies, be deemed consequential to the fact3 finder). Together, these discrepancies provided substantial

4 evidence in support of the agency’s adverse credibility

5 determination. See id.

6 That determination was a proper basis for the agency’s

7 denial of Shao’s asylum and withholding of removal claims as

8 both claims were premised on his account of his interactions

9 with the family planning officials. See Paul v. Gonzales,

10 444 F.3d 148, 156 (2d Cir. 2006). Accordingly, we do not

11 address Shao’s arguments concerning whether the past

12 mistreatment he allegedly suffered constituted past

13 persecution and whether he faces future harm on account of a

14 protected ground. 

15 The agency also reasonably found that Shao did not

16 establish his eligibility for CAT relief based on his

17 illegal departure from China as he presented no

18 particularized evidence suggesting that he would likely be

tortured.1 19 See Mu Xiang Lin v. U.S. Dep’t of Justice, 432

20 F.3d 156, 157-60 (2d Cir. 2005) (holding that a petitioner
6

1 is not “entitled to CAT protection based solely on the fact

2 that [he] is part of the large class of persons who have

3 illegally departed China,” and that beyond generalized

4 country conditions reports stating that some Chinese

5 prisoners have been tortured, an applicant for CAT relief

6 must submit particularized evidence suggesting that he is

7 likely to be subject to torture in Chinese prisons). 

8 For the foregoing reasons, the petition for review is

9 DENIED. As we have completed our review, any stay of

10 removal that the Court previously granted in this petition

11 is VACATED, and any pending motion for a stay of removal in

12 this petition is DISMISSED as moot. Any pending request for

13 oral argument in this petition is DENIED in accordance with

14 Federal Rule of Appellate Procedure 34(a)(2), and Second

15 Circuit Local Rule 34.1(b).

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk

18

19