     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
 4   New York, on the 5th 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.
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
                                     2
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
                                     3
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
                                   4
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).
                                    5
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




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