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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 5 th**  **day of February, two thousand eighteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **BARRINGTON D. PARKER,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HU CAO,** 13 Petitioner **,** 14 15 **v. 16-3933** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Keith S. Barnett, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Margaret Kuehne 26 Taylor, Senior Litigation Counsel; 27 Patricia E. Bruckner, Trial 28 Attorney, Office of Immigration 29 Litigation, United States 30 Department of Justice, Washington, 31 DC. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Hu Cao, a native and citizen of the People’s 5 Republic of China, seeks review of a November 4, 2016, 6 decision of the BIA affirming an October 30, 2015, decision 7 of an Immigration Judge (“IJ”) denying Cao’s application 8 for asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Hu Cao, No. A206 10 068 543 (B.I.A. Nov. 4, 2016), aff’g No. A206 068 543 11 (Immig. Ct. N.Y. City Oct. 30, 2015). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the decision of the IJ as modified and supplemented by the 16

BIA. Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 17 522 (2d Cir. 2005); Yan Chen v. Gonzales , 417 F.3d 268, 271 18 (2d Cir. 2005). The applicable standards of review are well 19 established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 20 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). 21 “Considering the totality of the circumstances, and all 22 relevant factors, a trier of fact may base a credibility 233 determination on . . . the consistency between the 1 applicant’s or witness’s written and oral statements . . . 2 , the internal consistency of each such statement, [and] 3 the consistency of such statements with other evidence of 4 record . . . without regard to whether an inconsistency, 5 inaccuracy, or falsehood goes to the heart of the 6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 7 Lin , 534 F.3d at 163-64. Substantial evidence supports the 8 agency’s determination that Cao was not credible as to his 9 claims that Chinese officials had harassed him and forced 10 him into hiding after expropriating and destroying his 11 farm, and that they had threatened to arrest him after 12 discovering his membership in the China Democracy Party 13 (“CDP”) in the United States. 14 The agency reasonably found Cao’s testimony that 15 officials had harassed him daily and caused him to live in 16 hiding for a year inconsistent with his wife’s letter, 17 which omitted any mention of these events even though she 18 claimed to write to inform the IJ how the Chinese 19 government had threatened and persecuted her husband. See 20 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 21 F.3d at 166-67 & n.3 (relying on omissions from supporting 22 letters and noting that “[a]n inconsistency and an omission 234 are . . . functionally equivalent.”). Cao did not provide 1 a compelling explanation for this inconsistency. See 2 Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005) (“A 3 petitioner must do more than offer a plausible explanation 4 for his inconsistent statements to secure relief; he must 5 demonstrate that a reasonable fact-finder would be 6 compelled to credit his testimony.” (internal quotation 7 marks omitted)). Furthermore, the agency reasonably relied 8 on Cao’s failure to provide any evidence to corroborate 9 this claim, or even establish that he had owned a farm in 10 China. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 11 Cir. 2007) (“An applicant’s failure to corroborate his . . 12 . testimony may bear on credibility, because the absence of 13 corroboration in general makes an applicant unable to 14 rehabilitate testimony that has already been called into 15 question.”). 16 The agency also reasonably relied on an inconsistency 17 between [i] Cao’s testimony that he had informed his 18 witness, the chairman of the East Coast CDP, that Chinese 19 officials had discovered his membership in the CDP and 20 threatened to arrest him, and [ii] the chairman’s 21 affidavit, which omitted this information. See 8 U.S.C. 22 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d at 235 166-67 & n.3. Furthermore, the chairman’s testimony did 1 not resolve this inconsistency. Rather than state that he 2 did not know if Chinese officials were aware of Cao’s CDP 3 activities, the chairman testified evasively, ultimately 4 suggesting that officials “should know” because it was 5 common sense. Only after being asked a third time whether 6 Cao had concerns that the government was aware of his 7 activities did the chairman state that he did not remember 8 Cao’s specific situation given the large number of CDP 9 members. The agency was not compelled to credit this 10 explanation because the chairman, who had testified in at 11 least 100 asylum cases, remembered more detailed 12 information about Cao, such as the month they had met and 13 the day Cao had joined the party. See Majidi , 430 F.3d at 14 80. 15 Given the inconsistencies and the lack of corroboration 16 relating both to past events in China and the Chinese 17 government’s purported discovery of Cao’s CDP membership in 18 the United States, the agency’s adverse credibility 19 determination is supported by substantial evidence and is 20 dispositive of asylum, withholding of removal, and CAT 21 relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. 22 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 236 We do not consider the BIA’s decision insofar as it 1 declined to remand based on the evidence Cao submitted on 2 appeal because Cao does not challenge that decision in his 3 brief. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 4 545 n.7 (2d Cir. 2005). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our rev iew, any stay of removal 7 that the Court previously granted in this petition is VACATED, 8 and any pending motion for a stay of removal in this petition 9 is DISMISSED as moot. Any pending request for oral argument 10 in this petition is DENIED in accordance with Federal Rule of 11 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 12 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15