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
6