         14-29
         Cai v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A205 030 582
                           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 30th day of March, two thousand fifteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YUE CAI,
14                       Petitioner,
15
16                       v.                                     14-29
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Stuart Altman, New York, NY.
24
25       FOR RESPONDENT:                Joyce R. Branda, Acting Assistant
26                                      Attorney General, Civil Division;
27                                      Paul Fiorino, Senior Litigation
28                                      Counsel; Judith R. O’Sullivan, Trial
29                                      Attorney, Office of Immigration
 1                          Litigation, United States Department
 2                          of Justice, Washington, D.C.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

 5   Board of Immigration Appeals (“BIA”) decision, it is hereby

 6   ORDERED, ADJUDGED, AND DECREED that the petition for review

 7   is DENIED.

 8       Yue Cai, a native and citizen of China, seeks review of

 9   a December 13, 2013, decision of the BIA affirming the

10   February 14, 2012, decision of an Immigration Judge (“IJ”)

11   denying her application for asylum, withholding of removal,

12   and relief under the Convention Against Torture (“CAT”).     In

13   re Yue Cai, No. A205 030 582 (B.I.A. Dec. 13, 2013), aff’g

14   No. A 205 030 582 (Immig. Ct. N.Y. City Feb. 14, 2012).     We

15   assume the parties’ familiarity with the underlying facts

16   and procedural history in this case.

17       Under the circumstances of this case, we have reviewed

18   the IJ’s decision as modified by the BIA.   Xue Hong Yang v.

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

20   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

21   Cir. 2007) (explaining that we “consider only those issues

22   that formed the basis for [the BIA’s] decision.”).    Because

23   the BIA declined to review the IJ’s alternative bases for

24   denying relief, we review only the agency’s adverse


                                  2
 1   credibility determination.     The applicable standards of

 2   review are well established.     See 8 U.S.C. § 1252(b)(4)(B);

 3   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008)

 4   (per curiam).

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

 6   REAL ID Act, the agency may, “[c]onsidering the totality of

 7   the circumstances,” base a credibility finding on an asylum

 8   applicant’s “demeanor, candor, or responsiveness,” the

 9   plausibility of her account, and inconsistencies in her

10   statements, “without regard to whether” they go “to the

11   heart of the applicant’s claim,” so long as they reasonably

12   support an inference that the applicant is not credible.       8

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

14   167.    “We defer therefore to an IJ’s credibility

15   determination unless, from the totality of the

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

17   could make such an adverse credibility ruling.”      Xiu Xia

18   Lin, 534 F.3d at 167.    Substantial evidence supports the

19   IJ’s finding that Cai was not credible with respect to her

20   claim of future persecution based on her Christianity.

21          The IJ did not err in basing the adverse credibility

22   determination, in part, on Cai’s demeanor.     See 8 U.S.C.


                                     3
 1   § 1158(b)(1)(B)(iii); Li Zu Guan v. INS, 453 F.3d 129, 140

 2   (2d Cir. 2006) (holding that “demeanor is paradigmatically

 3   the sort of evidence that a fact-finder is best positioned

 4   to evaluate”).   The record supports the IJ’s findings that

 5   Cai’s answers were nonresponsive and that her testimony

 6   contained many pauses.   For example, when the IJ asked Cai

 7   to explain why the fact of her aunt’s surveillance was

 8   omitted from her aunt’s letter, she first gave an indirect

 9   answer, prompting the IJ to point out her nonresponsiveness

10   and repeat the question, to which Cai answered that she was

11   unsure.   The IJ then asked Cai why her application did not

12   mention the surveillance, which was followed by a pause,

13   another request that she answer the question, and finally

14   Cai’s response that she “didn’t write that.”   While Cai

15   argues that the IJ was badgering or confusing her, the

16   record shows that the IJ was not demonstrating hostility;

17   instead, she was developing the record and seeking

18   explanations, as is the role of the IJ.   See 8 U.S.C.

19   § 1229a(b)(1) (stating that the IJ has the authority to

20   “interrogate, examine, and cross-examine the alien”); see

21   also Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d

22   111, 119 (2d Cir. 2006) (explaining that the IJ should take


                                   4
 1   an “active role” in “presenting and clarifying an asylum

 2   applicant’s case”); cf. Islam v. Gonzales, 469 F.3d 53, 55

 3   (2d Cir. 2006) (remanding because IJ showed bias and

 4   hostility by "repeatedly address[ing] [the petitioner] in an

 5   argumentative, sarcastic, impolite, and overly hostile

 6   manner that went beyond fact-finding and questioning").

 7   Cai’s argument that she paused because she did not

 8   understand the questions is also unpersuasive because she

 9   never expressed any confusion to the IJ.      Because the record

10   reflects these specific instances of nonresponsive testimony

11   and pauses, and because the IJ was best positioned to assess

12   Cai’s manner while testifying, we afford the demeanor

13   finding particular deference.       See Zhou Yun Zhang v. INS,

14   386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other

15   grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d

16   296 (2d Cir. 2007).

17       The IJ also properly relied on an omission from Cai’s

18   documentary evidence, which further supports the IJ’s

19   adverse credibility finding.    See 8 U.S.C. §

20   1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 165-

21   66. An omission in an applicant’s testimony or supporting

22   documents is “functionally equivalent” to an inconsistency

23   and “can serve as a proper basis for an adverse credibility
                                     5
 1   determination.”   Xiu Xia Lin, 534 F.3d at 166 n.3.    As

 2   discussed above, Cai’s application and her aunt’s letter

 3   fail to mention that the aunt is under surveillance by the

 4   Chinese government.   The omission is material because that

 5   surveillance was the reason Cai feared that the Chinese

 6   government would discover her practice of Christianity.

 7   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)

 8   (per curiam) (holding that aliens claiming future

 9   persecution must show that authorities “are either aware . .

10   . or likely to become aware of his activities”).

11   Accordingly, the IJ was not compelled to credit Cai’s

12   explanation that she did not think about the surveillance

13   when preparing her application.   Majidi v. Gonzales, 430

14   F.3d 77, 80-81 (2d Cir. 2005) (holding that agency need not

15   credit applicant’s explanations for inconsistent testimony

16   unless explanations would compel reasonable fact-finder to

17   do so).   While Cai argues that there is no evidence to show

18   when the surveillance began or when Cai became aware of it,

19   which could explain the omission from the application and

20   letter, her argument is unpersuasive in light of her

21   testimony.   She testified that her cousin–who lived in the

22   United States, testified on her behalf, and had introduced

23   her to Christianity–was aware of the surveillance in 2010 or
                                   6
 1   2011, or after his arrival in the United States, in

 2   September 2010.   Cai’s personal statement and her aunt’s

 3   letter are both dated September 2011.     Accordingly, the

 4   agency reasonably relied on this omission to support the

 5   adverse credibility determination.

 6       Given the agency’s findings regarding Cai’s demeanor

 7   and the omission relating to her fear of persecution, the

 8   “totality of circumstances” supports the agency’s adverse

 9   credibility determination.    The omission calls into question

10   Cai’s concern that the Chinese authorities will become aware

11   of her religion and that she will suffer future harm.        Xiu

12   Xia Lin, 534 F.3d at 167.    As all of Cai’s claims share the

13   same factual predicate, the adverse credibility

14   determination is dispositive of asylum, withholding of

15   removal, and CAT relief.     Paul v. Gonzales, 444 F.3d 148,

16   156-57 (2d Cir. 2006).

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

21   this petition is DISMISSED as moot.     Any pending request for

22   oral argument in this petition is DENIED in accordance with

23

                                     7
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6
7




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