Cao v. BIA, (2nd Cir. 2007)

05-1303-ag

Cao v. BIA

BIA

A75-961-703

Hladylowycz, IJ

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

" ( S U M M A R Y ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

T O G E T H E R WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

B Y COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

P U B L I C L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P : / / W W W . C A 2 . U S C O U R T S . G O V /

O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of N e w York, on the 9th day of October, two thousand seven. PRESENT: H O N . SONIA SOTOMAYOR H O N . ROBERT A. KATZMANN, H O N . REENA RAGGI, C i r c u i t Judges. X i a o Jun Cao, Petitioner, v. 05-1303-ag NAC Board of Immigration Appeals, Respondent. F O R PETITIONER: J o h n Z. Zhang, New York, New York.

F O R RESPONDENT: J e f f r e y A. Taylor, United States A t t o r n e y , Beverly M. Russell, M a d e l y n E. Johnson, Assistant United S t a t e s Attorneys, Washington, D i s t r i c t of Columbia.

U P O N DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, A N D DECREED that the petition for review of the decision of t h e Board of Immigration Appeals ("BIA") is DENIED.

P e t i t i o n e r Xiao Jun Cao, a citizen of the People's R e p u b l i c of China, seeks review of the February 23, 2005 o r d e r of the BIA dismissing his appeal from the July 28, 1 9 9 8 decision of Immigration Judge ("IJ") Roxanne H l a d y l o w y c z , which denied his applications for asylum and w i t h h o l d i n g of removal, and the April 14, 2004 decision of I J Hladylowycz that denied his application for relief under t h e Convention Against Torture ("CAT"). In re Cao, Xiao Jun, N o . A75 961 703 (B.I.A. Feb. 23, 2005), aff'g No. A 75 961 7 0 3 (Immig. Ct. N.Y. City July 28, 1998) and (Immig. Ct.

N . Y . City Apr. 14, 2004). We assume the parties' f a m i l i a r i t y with the underlying facts and procedural history o f the case.

W h e n the BIA affirms the IJ's decision in all respects b u t one, this Court reviews the IJ's decision as modified by t h e BIA decision, i.e., "minus the single argument for d e n y i n g relief that was rejected by the BIA." Xue Hong Yang v . U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

T h i s Court reviews the agency's factual findings, including a d v e r s e credibility determinations, under the substantial e v i d e n c e standard. 8U.S.C. § 1252(b)(4)(B).

Here, the IJ found that Cao's written asylum a p p l i c a t i o n , where he indicated that his political a c t i v i t i e s required him to "shuttle back and forth" from B e i j i n g to Tienjing "many times," was inconsistent with his t e s t i m o n y that he visited Beijing only twice during his i n v o l v e m e n t with the pro-democracy student movement.

Because that inconsistency concerned a matter central to C a o ' s claim--that he was a leader in the pro-democracy s t u d e n t movement--it was substantial when measured against t h e record as a whole. See Secaida-Rosales v. INS, 331 F.3d 2 9 7 , 308­09 (2d Cir. 2003).

T h e IJ also noted three additional inconsistencies b e t w e e n Cao's testimony and his documentary evidence: (1) a l t h o u g h he claimed to be unemployed, Cao's passport, issued i n Beijing, indicated that he was a professional manager; ( 2 ) Cao obtained a B-1 business visa from the American c o n s u l a t e , which is consistent with the professional d e s i g n a t i o n on his passport, and inconsistent with his t e s t i m o n y that he was homeless for eight years; and (3) the c o u n t r y profile indicated that, if Cao was indeed a student a c t i v i s t leader, he would not have been able to leave the c o u n t r y so easily. While these inconsistencies were arguably l e s s central to Cao's claim, combined with the IJ's a d d i t i o n a l credibility findings, the IJ properly deemed them consequential. Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d C i r . 2006). Moreover, although Cao offered explanations for t h e s e inconsistencies, a reasonable factfinder would not be c o m p e l l e d to credit them. See Majidi v. Gonzales, 430 F.3d 7 7 , 80 (2d Cir. 2005).

The IJ's credibility determination was also supported b y his finding that portions of Cao's testimony were i m p l a u s i b l e and that some of his testimony lacked specificity. The IJ's adverse credibility determination was a m p l y supported by the record as a whole and provided a p r o p e r basis for the agency's denial of asylum and w i t h h o l d i n g of removal. Insofar as Cao's CAT claim was b a s e d on the same factual predicate as his asylum and w i t h h o l d i n g of removal claims, the adverse credibility f i n d i n g is dispositive of that claim as well. See Xue Hong Y a n g , 426 F.3d at 523. To the extent that the IJ addressed C a o ' s CAT claim assuming his credibility, she did not err in f i n d i n g that he presented insufficient evidence of a l i k e l i h o o d of torture. See 8 C.F.R. §§ 1208.16(c), 1 2 0 8 . 1 7 ; Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir.

2004).

For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this p e t i t i o n is DISMISSED as moot.

FOR THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk By: