         12-4000
         Cai v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A087 767 412
                          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 October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       AI LAN CAI,
14                Petitioner,
15
16                       v.                                     12-4000
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:              Lee Ratner, Law Offices of Michael
24                                     Brown, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Daniel E. Goldman,
28                                     Senior Litigation Counsel; Jonathan
29                                     Robbins, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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       Petitioner Ai Lan Cai, a native and citizen of China,

 6   seeks review of a September 14, 2012, decision of the BIA

 7   affirming a May 12, 2011, decision of Immigration Judge

 8   (“IJ”) Sandy K. Hom, denying Cai’s application for asylum,

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).   In re Ai Lan Cai, No. A087 767 412

11   (B.I.A. Sept. 14, 2012), aff’g No. A087 767 412 (Immig. Ct.

12   N.Y. City May 12, 2011).   We assume the parties’ familiarity

13   with the underlying facts and procedural history in this

14   case.

15       Under the circumstances of this case, we review the

16   decisions of both the IJ and the BIA.   See Yun-Zui Guan v.

17   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).   The applicable

18   standards of review are well-established. See 8 U.S.C.

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513-14

20   (2d Cir. 2009).

21       For applications like this one, governed by the REAL ID

22   Act of 2005, the agency may, considering the totality of the

23   circumstances, base a credibility finding on an asylum

                                   2
 1   applicant’s demeanor, the plausibility of her account, and

 2   inconsistencies in her statements, without regard to whether

 3   they go “to the heart of the applicant's claim.” 8 U.S.C.

 4   § 1158(b)(1)(B)(iii); Matter of J–Y–C–, 24 I. & N. Dec. 260,

 5   265 (B.I.A. 2007). Analyzed under these standards, the

 6   agency’s adverse credibility determination is supported by

 7   substantial evidence.

 8       In finding Cai not credible, the IJ reasonably relied

 9   on the inconsistency between her statement during a border

10   interview that she feared religious persecution, and her

11   subsequent claim based on a forced abortion. Contrary to

12   Cai’s contention that the interview was unreliable, the

13   record of the interview, which sets forth the questions

14   asked and Cai’s responses, shows that she was asked

15   questions designed to elicit the details of an asylum claim

16   and there is no indication that she misunderstood the

17   questions. See Ramsameachire v. Ashcroft, 357 F.3d 169, 181

18   (2d Cir. 2004).

19       Further, the agency considered Cai’s varying

20   explanations for initially claiming that she had been

21   persecuted on account of her religion – that she was

22   embarrassed, had not eaten, was confused, and was nervous –


                                  3
 1   and reasonably rejected them. See Yun-Zui Guan, 432 F.3d at

 2   397 n.6 (2d Cir. 2005) (finding that “an alien’s mere

 3   recitation that he was nervous or felt pressured during an

 4   airport interview will not automatically prevent the IJ or

 5   BIA from relying on statements in such interviews when

 6   making adverse credibility determinations”); see also Majidi

 7   v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (under

 8   substantial evidence standard, agency need not credit an

 9   applicant’s explanations unless those explanations would

10   compel a reasonable fact-finder to do so).

11       Although Cai challenges the agency’s determination that

12   she provided inconsistent testimony as to whether she was

13   asked for her birth permit before or after she was taken

14   into a van, the record reflects that her testimony differed

15   from her credible fear interview.   While this inconsistency

16   is quite minor, under the REAL ID Act, “an IJ may rely on

17   any inconsistency or omission in making an adverse

18   credibility determination as long as the ‘totality of the

19   circumstances’ establishes that an asylum applicant is not

20   credible.”   Xiu Xia Lin, 534 F.3d at 167 (emphasis in

21   original).   This is particularly so given Cai’s failure to

22   address the more substantial inconsistencies identified by


                                   4
 1   the IJ - her statement in the credible fear interview that

 2   the abortion occurred in August 2007 when she was nine

 3   months pregnant, and not, as she testified at the hearing,

 4   in July 2007 when she was five months pregnant.

 5       Cai is correct that the agency did not address the

 6   medical evidence supporting her claim.       However, we presume

 7   that the agency “has taken into account all of the evidence

 8   before [it], unless the record compellingly suggests

 9   otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

10   315, 338 n. 17 (2d Cir. 2006).       Here, Cai testified about

11   the medical evidence at the merits hearing, and nothing in

12   the record suggests, much less compels the conclusion, that

13   the agency did not consider it.

14       Accordingly, under the totality of the circumstances,

15   substantial evidence supports the agency’s adverse

16   credibility determination.   See 8 U.S.C.

17   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.         Having

18   reasonably found that Cai failed to establish eligibility

19   for asylum on credibility grounds, the agency did not err in

20   denying withholding of removal.       See Paul v. Gonzales, 444

21   F.3d 148, 156 (2d Cir. 2006).       Finally, Cai has waived any

22   challenge to the agency's denial of CAT relief by failing to

23   raise this issue in her brief.       See Yueqing Zhang v.

24   Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)
                                     5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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