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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 9 th** **day of August, two thousand thirteen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **QIANG CAO,** 13 Petitioner**,** 14 15 **v. 12-242** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Nataliya I. Gavlin, Moslemi &** 23 **Associates, New York, New York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Ernesto H. Molina,** 27 **Jr., Assistant Director; Joanna L.** 28 **Watson, Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON 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 Qiang Cao, a native and citizen of the People’s 5 Republic of China, seeks review of a December 23, 2011, 6 decision of the BIA affirming the October 9, 2009, decision 7 of Immigration Judge (“IJ”) Brigitte Laforest, which denied 8 his application for asylum, withholding of removal, and 9 relief under the Convention Against Torture (“CAT”). In re 10 Qiang Cao , No. A089 198 266 (B.I.A. Dec. 23, 2011),aff’g 11 No. A089 198 266 (Immig. Ct. N.Y. City Oct. 9, 2009). We 12 assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as supplemented by the BIA. See Yan Chen 16 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 17 applicable standards of review are well-established. See 18 8 U.S.C. § 1252(b)(4)(B);see also Yanqin Weng v. Holder, 19 562 F.3d 510, 513 (2d Cir. 2009). 20 For asylum applications such as Cao’s, governed by the 21 amendments to the Immigration and Nationality Act by the 22 REAL ID Act of 2005, the agency “may rely on any 23

2inconsistency or omission in making an adverse credibility 1 determination as long as the ‘totality of the circumstances’ 2 establishes that an asylum applicant is not credible.” Xiu 3 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per 4 curiam) (emphasis in original) (quoting 8 U.S.C. 5 § 1158(b)(1)(B)(iii)). Cao challenges only the agency’s 6 adverse credibility determination. 7 The agency found that Cao’s testimony was incredible, 8 in part, because his asylum application omitted his illegal 9 departure from China in 1999, arrest and year-long 10 immigration detention in Canada, and 2000 deportation to 11 China. Despite Cao’s argument to the contrary, the BIA 12 reasonably concluded that his omissions provided substantial 13 evidence of the adverse credibility determination because 14 they were essential factual allegations underlying his 15 claim. Xu Duan Dong v. Ashcroft , 406 F.3d 110, 111-12 (2d 16 Cir. 2005) (per curiam). Thus, Cao’s explanations for his 17 omission – that he “forgot,” and thought it was not 18 important - were insufficient to compel a reasonable fact19 finder to credit his testimony. Majidi v. Gonzales , 430 20 F.3d 77, 80-81 (2d Cir. 2005). 21

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3The agency also reasonably discredited Cao’s testimony 1 because he testified inconsistently about whether he had 2 previously applied for a United States visa. Xiu Xia Lin , 3 534 F.3d at 167. Cao’s contention that the IJ misstated his 4 testimony about his prior visa applications is not supported 5 by the administrative record. 6 Finally, Cao contends that his evidence, including a 7 fine receipt indicating his payment for “one extra birth” 8 and his wife’s sterilization certificate, sufficiently 9 corroborated his claim. However, the agency reasonably 10 doubted the authenticity of these documents and accorded 11 them little weight. Xiao Ji Chen v. U.S. Dep’t of Justice , 12 471 F.3d 315, 342 (2d Cir. 2006); Xiao Xing Ni v. Gonzales , 13 494 F.3d 260, 263 (2d Cir. 2007). Moreover, the BIA 14 reasonably determined that letters from Cao’s family members 15 failed to independently establish his eligibility for relief 16 because they lacked detailed information about the alleged 17 forcible sterilization, and the family members were 18 unavailable for cross-examination. Xiao Ji Chen , 471 F.3d 19
at 342; Matter of H-L-H- & Z-Y-Z- , 25 I&N Dec. 209, 215 (BIA 20 2010)(citing Jian Hui Shao v. Mukasey, 546 F.3d 138, 160-61 21 (2d Cir. 2008)), overruled on other grounds by Hui Lin Huang 22 v. Holder, 677 F.3d 130 (2d Cir. 2012). 23

4We have considered Cao’s remaining arguments, and find 1 that they lack merit. Accordingly, given the omissions in 2 his asylum application, inconsistent testimony, and lack of 3 corroboration, we will defer to the agency’s adverse 4 credibility determination. Xiu Xia Lin , 534 F.3d at 167. 5 As the only evidence of a threat to Cao’s life or freedom 6 depended upon his credibility, the adverse credibility 7 determination in this case is dispositive of his claims for 8 asylum, withholding of removal, and CAT relief. See Paul v. 9 Gonzales , 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. 10 U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, the pending motion 13 for a stay of removal in this petition is DENIED as moot. 14

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FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 19 20

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