         11-5206
         Cai v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A088 779 521
                          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,
 4       on the 14th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                DEBRA ANN LIVINGSTON,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       MEI SHU CAI,
14                Petitioner,
15
16                       v.                                     11-5206
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Yoram Nachimovsky, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Emily Anne
27                                     Radford, Assistant Director; Kohsei
28                                     Ugumori, Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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        Mei Shu Cai, a native and citizen of the People’s

 6   Republic of China, seeks review of a November 15, 2011,

 7   decision of the BIA affirming the August 10, 2010, decision

 8   of Immigration Judge (“IJ”) Philip L. Morace, which denied

 9   her application for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).     In re

11   Mei Shu Cai, No. A088 779 521 (B.I.A. Nov. 15, 2011), aff’g

12   No. A088 779 521 (Immig. Ct. N.Y. City Aug. 10, 2010).     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 modified by the BIA.   See Xue Hong Yang

17   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21   I.   Credibility

22        For asylum applications, like Cai’s, governed by the

23   amendments made to the Immigration and Nationality Act by

                                  2
 1   the REAL ID Act of 2005, the agency may, considering the

 2   totality of the circumstances, base a credibility finding on

 3   an asylum applicant’s “demeanor, candor, or responsiveness,”

 4   the plausibility of her account, and inconsistencies in her

 5   statements, without regard to whether they go “to the heart

 6   of the applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii);

 7   see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

 8   2008).   We will “defer therefore to an IJ’s credibility

 9   determination unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder

11   could make” such a ruling.    Xiu Xia Lin, 534 F.3d at 167.

12   In this case, the agency reasonably based its adverse

13   credibility determination on the inconsistencies between

14   Cai’s asylum application and her testimony, as well as her

15   lack of corroborative evidence.

16       In finding Cai not credible, the IJ reasonably relied

17   on the inconsistencies between her written statement and her

18   description of her arrest in her testimony.    See 8 U.S.C.

19   § 1158(b)(1)(B)(iii); Liang Chen v. U.S. Att’y Gen, 454 F.3d

20   103, 106-07 (2d Cir. 2006).   Moreover, the IJ gave Cai an

21   opportunity to reconcile her differing accounts, and

22   reasonably declined to credit her explanation.    See Ming Shi


                                    3
 1   Xue v. BIA, 439 F.3d 111, 125 (2d Cir. 2006); Majidi v.

 2   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need

 3   not credit an applicant’s explanations for inconsistent

 4   testimony unless those explanations would compel a

 5   reasonable fact-finder to do so).

 6       The BIA reasonably rejected the explanations that Cai

 7   presented upon appeal, namely, that there were problems with

 8   the translation of her written statement because she was not

 9   proficient in Chinese, and that she suffered from post-

10   traumatic stress disorder, which affected her memory of her

11   assault and detention.   As the BIA noted, Cai’s written

12   statement contained a sworn certification of translation,

13   and she swore to the contents of her asylum application.

14   Furthermore, Cai presented no evidence, other than a

15   statement by her attorney in the appeal brief, that she

16   suffered from post-traumatic stress disorder.   See INS v.

17   Phinpathya, 464 U.S. 183, 188-89 n.6 (1984) (an attorney’s

18   unsworn statements in a brief are not evidence); see also

19   Majidi, 430 F.3d at 80-81.

20       The agency’s adverse credibility finding was

21   additionally based on Cai’s failure to provide reasonably

22   available corroborative evidence that she continued to


                                   4
 1   practice Jung Kong in the United States, and the BIA

 2   reasonably rejected Cai’s contention upon appeal that the

 3   individuals with whom she practiced Jung Kong did not

 4   corroborate her claim because “they were afraid of

 5   involvement.”     Cf. Li Zu Guan v. INS, 453 F.3d 129, 141 (2d

 6   Cir. 2006).     Because the IJ had already called Cai’s

 7   credibility into question due to her inconsistencies, the

 8   agency did not err in relying on the lack of corroboration

 9   as further support for the adverse credibility finding.       See

10   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

11          Given the inconsistencies and lack of corroboration

12   cited by the agency, the totality of the circumstances

13   supports the agency’s adverse credibility determination.

14   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

15   167.    Furthermore, the adverse credibility determination

16   regarding Cai’s claim of persecution based on her practice

17   of Jung Kong necessarily precludes success on that basis in

18   her applications for asylum, withholding of removal, and CAT

19   relief.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

20   2006); Xue Hong Yang, 426 F.3d at 523.

21   II. Burden

22          Cai additionally argues that the agency erred in

23   finding that she had not shown past persecution on account
                                     5
 1   of her Korean ethnicity in China, and further erred in

 2   concluding that she failed to establish a pattern or

 3   practice of persecution of Koreans in China.

 4       The BIA has defined persecution as a “threat to the

 5   life or freedom of, or the infliction of suffering or harm

 6   upon, those who differ in a way regarded as offensive.”

 7   Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),

 8   overruled, in part, on other grounds, INS v.

 9   Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.

10   U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).

11   The harm must be sufficiently severe, rising above “mere

12   harassment.”   Ivanishvili, 433 F.3d at 341.     Cai testified

13   that when she argued “with Chinese people” they would curse

14   at her, and also that when she was “a little child” she was

15   “bullied” by the Chinese. The agency did not err in

16   concluding that this harm, taken in the aggregate, was not

17   sufficient to rise to the level of persecution.      See id.

18       Moreover, the agency did not err in finding that Cai

19   did not demonstrate a pattern or practice in China of

20   persecution of ethnic Koreans.    See 8 C.F.R.

21   § 208.16(b)(2)(i) (providing that an applicant shall not be

22   required to show that she will be singled out individually

23   for persecution if she establishes that there is a pattern
                                   6
 1   or practice of persecution of a group of similarly situated

 2   persons); Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).

 3   While the country conditions evidence Cai submitted

 4   indicates that some discrimination against ethnic minorities

 5   persists in China, it does not show that any difficulties

 6   experienced by ethnic Koreans are severe or widespread

 7   enough to constitute a pattern or practice of persecution,

 8   as the evidence does not specifically discuss the treatment

 9   of ethnic Koreans.     See Santoso v. Holder, 580 F.3d 110, 112

10   (2d Cir. 2009) (holding that where the agency’s finding that

11   an individual did not establish a pattern or practice of

12   persecution is supported by background materials, the agency

13   has provided a “sufficient basis” for its conclusion).

14       Because Cai did not establish past persecution or a

15   pattern or practice of persecution, the agency did not err

16   in denying her application for asylum and withholding of

17   removal.     Moreover, because her CAT claim was based on the

18   same factual predicate, she similarly failed to meet her

19   burden for that form of relief.     See Xue Hong Yang, 426 F.3d

20   at 522-23.

21       For the foregoing reasons, the petition for review is

22   DENIED.    As we have completed our review, any stay of

23   removal that the Court previously granted in this petition

                                     7
1   is VACATED, and any pending motion for a stay of removal in

2   this petition is DENIED as moot. Any pending request for

3   oral argument in this petition is DENIED in accordance with

4   Federal Rule of Appellate Procedure 34(a)(2), and Second

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8




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