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,

on the 9th 4 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 fact20 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

18

19

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