10-4529-ag
Shao v. Holder
BIA
Balasquide, IJ
A078 038 169
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23rd day of December, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 XUE EIAO SHAO, AKA XUE CHAO SHAO,
14 Petitioner,
15
16 v. 10-4529-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Jed S. Wasserman, Kuzmin &
24 Associates, P.C., New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; David V. Bernal, Assistant
28 Director; Stuart S. Nickum, 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 Xue Eiao Shao, a native and citizen of China, seeks
9 review of an October 4, 2010, order of the BIA affirming the
10 December 1, 2008, decision of Immigration Judge (“IJ”)
11 Javier E. Balasquide, which denied Shao’s application for
12 asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Xue Eiao Shao,
14 No. A078 038 169 (B.I.A. Oct. 4, 2010), aff’g No. A078 038
15 169 (Immig. Ct. N.Y. City Dec. 1, 2008). We assume the
16 parties’ familiarity with the underlying facts and
17 procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 the decision of the IJ as supplemented by the BIA. See Yan
20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
21 applicable standards of review are well-established. See
22 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
23 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110
24 (2d Cir. 2008). An adverse credibility determination must
2
1 be based on “specific, cogent” reasons bearing a “legitimate
2 nexus” to the finding. See Zhou Yun Zhang v. INS, 386 F.3d
3 66, 74 (2d Cir. 2004) (quoting Secaida-Rosales v. INS, 331
4 F.3d 297, 307 (2d Cir. 2003)).
5 The agency reasonably relied on the inconsistencies
6 between Shao’s testimony and his fiancée’s statements
7 regarding the timing and cause of her abortion and the
8 payment of fines in finding him not credible because Shao’s
9 incident with the family planning officials and the harm he
10 and his fiancée suffered are the basis of his asylum claim.
11 See Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (2d Cir.
12 2002) (holding that an IJ may base an adverse credibility
13 determination on discrepancies that go to the “heart of the
14 asylum claim”).
15 Contrary to Shao’s argument, the agency did not err in
16 rejecting his explanations for his fiancée’s statements
17 because, although Shao asserted that she was confused
18 regarding the timing of her abortion, she provided specific
19 dates, and a motivation for the abortion incompatible with
20 Shao’s testimony. See Majidi v. Gonzales, 430 F.3d 77,
21 80-81 (2d Cir. 2005) (concluding that the agency need not
22 credit an applicant’s explanations for inconsistent
3
1 testimony unless those explanations would compel a
2 reasonable fact-finder to do so). Moreover, the BIA did not
3 exceed its authority in rejecting Shao’s argument that the
4 family planning violation notice, dated January 2000,
5 supported his testimony. While the BIA generally should not
6 engage in fact-finding on appeal, see 8 C.F.R.
7 § 1003.1(d)(3)(iv), it acted within its authority in
8 reviewing the record created by the IJ and rejecting Shao’s
9 assertion that the notice corroborated his testimony, as it
10 was inconsistent with his statements that the authorities
11 first learned of the pregnancy in February 2000. See
12 Belortaja v. Gonzales, 484 F.3d 619, 624-25 (2d Cir. 2007)
13 (holding that BIA did not exceed its authority in making an
14 adverse credibility determination based on evidence
15 presented to the IJ).
16 The adverse credibility determination was further
17 supported by the agency’s finding that Shao’s omission of
18 the police visit to his house and his time in hiding from
19 his initial asylum application undermined his credibility.
20 See Tu Lin v. Gonzales, 446 F.3d 395, 402-03 (2d Cir. 2006)
21 (concluding that because adverse credibility determinations
22 are based on the whole record, omissions from an asylum
4
1 application may, in light of other omissions and
2 inconsistencies, be deemed consequential to the fact-
3 finder). Together, these discrepancies provided substantial
4 evidence in support of the agency’s adverse credibility
5 determination. See id.
6 That determination was a proper basis for the agency’s
7 denial of Shao’s asylum and withholding of removal claims as
8 both claims were premised on his account of his interactions
9 with the family planning officials. See Paul v. Gonzales,
10 444 F.3d 148, 156 (2d Cir. 2006). Accordingly, we do not
11 address Shao’s arguments concerning whether the past
12 mistreatment he allegedly suffered constituted past
13 persecution and whether he faces future harm on account of a
14 protected ground.
15 The agency also reasonably found that Shao did not
16 establish his eligibility for CAT relief based on his
17 illegal departure from China as he presented no
18 particularized evidence suggesting that he would likely be
19 tortured.1 See Mu Xiang Lin v. U.S. Dep’t of Justice, 432
20 F.3d 156, 157-60 (2d Cir. 2005) (holding that a petitioner
1
Contrary to the government’s argument, Shao raised
the issue of his illegal departure in his brief before the
BIA.
5
1 is not “entitled to CAT protection based solely on the fact
2 that [he] is part of the large class of persons who have
3 illegally departed China,” and that beyond generalized
4 country conditions reports stating that some Chinese
5 prisoners have been tortured, an applicant for CAT relief
6 must submit particularized evidence suggesting that he is
7 likely to be subject to torture in Chinese prisons).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
6