Xue Eiao Shao v. Holder

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