Qin Cao v. Holder ( 2010 )

09-3791-ag
Cao v. Holder
BIA
Defonzo, IJ
A079 307 440
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
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 5 th day of May, two thousand ten.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_______________________________________
QIN CAO,
Petitioner,
v. 09-3791-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Sheema Chaudhry, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Michelle Gorden Latour,
Assistant Director; Tracie N. Jones,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Qin Cao, a native and citizen of the People’s Republic
of China, seeks review of an August 21, 2009 order of the
BIA affirming the December 6, 2007 decision of Immigration
Judge (“IJ”) Paul A. Defonzo, which denied his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Qin Cao, No. A079
307 440 (B.I.A. Aug. 21, 2009), aff’g No. A079 307 440
(Immig. Ct. N.Y. City Dec. 6, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA’s decision. See
Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
We find no error in the agency’s adverse credibility
determination. See Xiu Xia Lin, 534 F.3d at 164 (ruling that
“in evaluating an asylum applicant’s credibility, an IJ may
rely on omissions and inconsistencies that do not directly
relate to the applicant’s claim of persecution as long as
the totality of the circumstances establish that the
applicant is not credible.”).
The IJ reasonably relied on inconsistencies between
Cao’s 2003 testimony, his 2007 testimony, and his asylum
application regarding whether his wife ever told him that
police threatened her after he went into hiding. The record
belies Cao’s argument that no inconsistency exists because
he was actually referring to two different time periods.
See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
294 (2d Cir. 2006) (per curiam). Additionally, despite
Cao’s argument, we find no error in the BIA’s determination
that his testimony that his wife continued to live in their
home in Fujian province was inconsistent with his wife’s
letter, which indicated that she had fled to her parents’
home in a different province. To the extent that Cao
offered an explanation for this inconsistency, the agency
2
was not compelled to credit it. See Majidi v. Gonzales, 430
F.3d 77, 80-81 (2d Cir. 2005).
Although the IJ made additional adverse credibility
findings, Cao does not challenge them. Accordingly, they
stand as valid bases for the IJ’s adverse credibility
determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146-
47 (2d Cir. 2008).
The IJ’s non-erroneous adverse credibility
determination undermines Cao’s claims for asylum,
withholding of removal, and CAT relief because each claim
was based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3