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.**  

### At a stated term of the United States Court of Appeals 1 

### for the Second Circuit, held at the Daniel Patrick Moynihan 2 

### United States Courthouse, 500 Pearl Street, in the City of 3 

### New York, on the 23 **rd** 

### day of December, two thousand eleven. 4 5 

### PRESENT: 6 

### GUIDO CALABRESI, 7 

### REENA RAGGI, 8 

### RICHARD C. WESLEY, 9 

### Circuit Judges **.** 10



### ______________________________________ 11 12 

### XUE EIAO SHAO, AKA XUE CHAO SHAO, 13 

### Petitioner **,** 14 15 

### v. **10-4529-ag** 16 

### NAC 17 

### ERIC H. HOLDER, JR., UNITED STATES 18 

### ATTORNEY GENERAL, 19 

### Respondent **.** 20



### ______________________________________ 21 22 

### FOR PETITIONER: **Jed S. Wasserman, Kuzmin &** 23 

### Associates, P.C., New York, N.Y. 24 25 

### FOR RESPONDENT: **Tony West, Assistant Attorney** 26 

### General; David V. Bernal, Assistant 27 

### Director; Stuart S. Nickum, Trial 28 

### Attorney, Office of Immigration 29

### 2 **Litigation, United States Department** 1 

### of Justice, Washington, D.C. 2 3 

### UPON DUE CONSIDERATION of this petition for review of a 4 

### Board of Immigration Appeals (“BIA”) decision, it is hereby 5 

### ORDERED, ADJUDGED, AND DECREED, that the petition for review 6 

### is DENIED. 7 

### Xue Eiao Shao, a native and citizen of China, seeks 8 

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

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

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

### asylum, withholding of removal, and relief under the 12 

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

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

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

### parties’ familiarity with the underlying facts and 16 

### procedural history in this case. 17 

### Under the circumstances of this case, we have reviewed 18 

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



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

### applicable standards of review are well-established. See 21 

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

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

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

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

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

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

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

### The agency reasonably relied on the inconsistencies 5 

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

### regarding the timing and cause of her abortion and the 7 

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

### incident with the family planning officials and the harm he 9 

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



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

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

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

### asylum claim”). 14 

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

### rejecting his explanations for his fiancée’s statements 16 

### because, although Shao asserted that she was confused 17 

### regarding the timing of her abortion, she provided specific 18 

### dates, and a motivation for the abortion incompatible with 19 

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

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

### credit an applicant’s explanations for inconsistent 22

### 4 testimony unless those explanations would compel a 1 

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

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

### family planning violation notice, dated January 2000, 4 

### supported his testimony. While the BIA generally should not 5 

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

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

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

### assertion that the notice corroborated his testimony, as it 9 

### was inconsistent with his statements that the authorities 10 

### first learned of the pregnancy in February 2000. See 11 

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

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

### adverse credibility determination based on evidence 14 

### presented to the IJ). 15 

### The adverse credibility determination was further 16 

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

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

### his initial asylum application undermined his credibility. 19 

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

### (concluding that because adverse credibility determinations 21 

### are based on the whole record, omissions from an asylum 221 

### Contrary to the government’s argument, Shao raised the issue of his illegal departure in his brief before the BIA.

5 application may, in light of other omissions and 1 

### inconsistencies, be deemed consequential to the fact2 

### finder). Together, these discrepancies provided substantial 3 

### evidence in support of the agency’s adverse credibility 4 

### determination. See id. 5 

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

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

### both claims were premised on his account of his interactions 8 

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

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

### address Shao’s arguments concerning whether the past 11 

### mistreatment he allegedly suffered constituted past 12 

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

### protected ground. 14 

### The agency also reasonably found that Shao did not 15 

### establish his eligibility for CAT relief based on his 16 

### illegal departure from China as he presented no 17 

### particularized evidence suggesting that he would likely be 18



### tortured. 1 

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

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

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

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

### illegally departed China,” and that beyond generalized 3 

### country conditions reports stating that some Chinese 4 

### prisoners have been tortured, an applicant for CAT relief 5 

### must submit particularized evidence suggesting that he is 6 

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

### For the foregoing reasons, the petition for review is 8 

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

### removal that the Court previously granted in this petition 10 

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

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

### oral argument in this petition is DENIED in accordance with 13 

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

### Circuit Local Rule 34.1(b). 15



### FOR THE COURT: 16 

### Catherine O’Hagan Wolfe, Clerk 17 18 19