11-5206
Cai v. Holder
BIA
Morace, IJ
A088 779 521
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 14th day of May, two thousand thirteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MEI SHU CAI,
14 Petitioner,
15
16 v. 11-5206
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Yoram Nachimovsky, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Emily Anne
27 Radford, Assistant Director; Kohsei
28 Ugumori, Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Mei Shu Cai, a native and citizen of the People’s
6 Republic of China, seeks review of a November 15, 2011,
7 decision of the BIA affirming the August 10, 2010, decision
8 of Immigration Judge (“IJ”) Philip L. Morace, which denied
9 her application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Mei Shu Cai, No. A088 779 521 (B.I.A. Nov. 15, 2011), aff’g
12 No. A088 779 521 (Immig. Ct. N.Y. City Aug. 10, 2010). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA. See Xue Hong Yang
17 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 I. Credibility
22 For asylum applications, like Cai’s, governed by the
23 amendments made to the Immigration and Nationality Act by
2
1 the REAL ID Act of 2005, the agency may, considering the
2 totality of the circumstances, base a credibility finding on
3 an asylum applicant’s “demeanor, candor, or responsiveness,”
4 the plausibility of her account, and inconsistencies in her
5 statements, without regard to whether they go “to the heart
6 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
7 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
8 2008). We will “defer therefore to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
12 In this case, the agency reasonably based its adverse
13 credibility determination on the inconsistencies between
14 Cai’s asylum application and her testimony, as well as her
15 lack of corroborative evidence.
16 In finding Cai not credible, the IJ reasonably relied
17 on the inconsistencies between her written statement and her
18 description of her arrest in her testimony. See 8 U.S.C.
19 § 1158(b)(1)(B)(iii); Liang Chen v. U.S. Att’y Gen, 454 F.3d
20 103, 106-07 (2d Cir. 2006). Moreover, the IJ gave Cai an
21 opportunity to reconcile her differing accounts, and
22 reasonably declined to credit her explanation. See Ming Shi
3
1 Xue v. BIA, 439 F.3d 111, 125 (2d Cir. 2006); Majidi v.
2 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need
3 not credit an applicant’s explanations for inconsistent
4 testimony unless those explanations would compel a
5 reasonable fact-finder to do so).
6 The BIA reasonably rejected the explanations that Cai
7 presented upon appeal, namely, that there were problems with
8 the translation of her written statement because she was not
9 proficient in Chinese, and that she suffered from post-
10 traumatic stress disorder, which affected her memory of her
11 assault and detention. As the BIA noted, Cai’s written
12 statement contained a sworn certification of translation,
13 and she swore to the contents of her asylum application.
14 Furthermore, Cai presented no evidence, other than a
15 statement by her attorney in the appeal brief, that she
16 suffered from post-traumatic stress disorder. See INS v.
17 Phinpathya, 464 U.S. 183, 188-89 n.6 (1984) (an attorney’s
18 unsworn statements in a brief are not evidence); see also
19 Majidi, 430 F.3d at 80-81.
20 The agency’s adverse credibility finding was
21 additionally based on Cai’s failure to provide reasonably
22 available corroborative evidence that she continued to
4
1 practice Jung Kong in the United States, and the BIA
2 reasonably rejected Cai’s contention upon appeal that the
3 individuals with whom she practiced Jung Kong did not
4 corroborate her claim because “they were afraid of
5 involvement.” Cf. Li Zu Guan v. INS, 453 F.3d 129, 141 (2d
6 Cir. 2006). Because the IJ had already called Cai’s
7 credibility into question due to her inconsistencies, the
8 agency did not err in relying on the lack of corroboration
9 as further support for the adverse credibility finding. See
10 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
11 Given the inconsistencies and lack of corroboration
12 cited by the agency, the totality of the circumstances
13 supports the agency’s adverse credibility determination.
14 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
15 167. Furthermore, the adverse credibility determination
16 regarding Cai’s claim of persecution based on her practice
17 of Jung Kong necessarily precludes success on that basis in
18 her applications for asylum, withholding of removal, and CAT
19 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
20 2006); Xue Hong Yang, 426 F.3d at 523.
21 II. Burden
22 Cai additionally argues that the agency erred in
23 finding that she had not shown past persecution on account
5
1 of her Korean ethnicity in China, and further erred in
2 concluding that she failed to establish a pattern or
3 practice of persecution of Koreans in China.
4 The BIA has defined persecution as a “threat to the
5 life or freedom of, or the infliction of suffering or harm
6 upon, those who differ in a way regarded as offensive.”
7 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),
8 overruled, in part, on other grounds, INS v.
9 Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.
10 U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).
11 The harm must be sufficiently severe, rising above “mere
12 harassment.” Ivanishvili, 433 F.3d at 341. Cai testified
13 that when she argued “with Chinese people” they would curse
14 at her, and also that when she was “a little child” she was
15 “bullied” by the Chinese. The agency did not err in
16 concluding that this harm, taken in the aggregate, was not
17 sufficient to rise to the level of persecution. See id.
18 Moreover, the agency did not err in finding that Cai
19 did not demonstrate a pattern or practice in China of
20 persecution of ethnic Koreans. See 8 C.F.R.
21 § 208.16(b)(2)(i) (providing that an applicant shall not be
22 required to show that she will be singled out individually
23 for persecution if she establishes that there is a pattern
6
1 or practice of persecution of a group of similarly situated
2 persons); Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).
3 While the country conditions evidence Cai submitted
4 indicates that some discrimination against ethnic minorities
5 persists in China, it does not show that any difficulties
6 experienced by ethnic Koreans are severe or widespread
7 enough to constitute a pattern or practice of persecution,
8 as the evidence does not specifically discuss the treatment
9 of ethnic Koreans. See Santoso v. Holder, 580 F.3d 110, 112
10 (2d Cir. 2009) (holding that where the agency’s finding that
11 an individual did not establish a pattern or practice of
12 persecution is supported by background materials, the agency
13 has provided a “sufficient basis” for its conclusion).
14 Because Cai did not establish past persecution or a
15 pattern or practice of persecution, the agency did not err
16 in denying her application for asylum and withholding of
17 removal. Moreover, because her CAT claim was based on the
18 same factual predicate, she similarly failed to meet her
19 burden for that form of relief. See Xue Hong Yang, 426 F.3d
20 at 522-23.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
7
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DENIED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
8