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 

New York, on the 5th 4 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. 
2 

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 
3 

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 
4 

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 
5 

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). 
6 

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