Sheng-Yong Cao v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3402
___________
SHENG-YONG CAO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A72-056-629)
Immigration Judge: Honorable Miriam Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 26, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: August 31, 2009)
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OPINION
___________
PER CURIAM
Sheng-Yong Cao petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the
reasons that follow, we will deny his petition for review.

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Cao, a native and citizen of China, entered the United States in January 1992
bearing a false Japanese passport. He was denied entry and immediately applied for
asylum, withholding of removal and relief under the Convention Against Torture
(“CAT”), claiming that he was terminated from his job and sought by the police after
reporting his boss’s corruption. His application remained unadjudicated until October 14,
2004, when the Government initiated removal proceedings against him. He then filed a
supplemental asylum application in which he stated that he also feared returning to China
because he had two U.S.-born children in violation of China’s family planning policies.
In August 2006, Cao filed another supplemental asylum application in which he re-stated
both of these claims. He later amended his application after the birth of a third child in
the United States. Following a hearing, the IJ denied relief, determining that Cao’s
testimony was not credible with respect to significant parts of his claim of retribution by
his boss and the police and that, even assuming it was credible, he failed to demonstrate
persecution on account of a protected ground. (A.R. 55.) With respect to his sterilization
claim, the IJ concluded that Cao had failed to meet his burden of proof. (Id.) The BIA
affirmed and Cao filed a petition for review.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. To
qualify for asylum, Cao must show that he is “unable or unwilling to return to [China]
. . . because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.”

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In enacting the Real ID Act of 2005, Congress addressed this standard. See Real ID1
Act of 2005, Pub. L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11, 2005), codified at
8 U.S.C. § 1158(b)(1)(B)(iii). However, the new provision does not apply to applications
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8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158. To establish eligibility for withholding of
removal, he must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12
F.3d 1233, 1238 (3d Cir. 1993). “[P]ersecution connotes extreme behavior, including
‘threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom.’” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.
2003) (quoting Fatin, 12 F.3d at 1240). The well-founded fear of persecution standard
involves both a subjectively genuine fear of persecution and an objectively reasonable
possibility of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987).
For relief under the CAT, Cao must demonstrate that it is more likely than not that he
would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
The IJ denied relief because she found that Cao was not credible and had not met
his burden of demonstrating a well-founded fear of persecution. These are both factual
findings subject to review under the substantial evidence standard. See Chen v. Ashcroft,
376 F.3d 215, 222 (3d Cir. 2004); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.
2001). Under this deferential standard of review, we will uphold the findings of the BIA
or IJ “unless the evidence not only supports a contrary conclusion but compels it.”
Abdille, 242 F.3d at 484. However, an adverse credibility finding based on
inconsistencies must be based on matters that go to the heart of the asylum claim. Gao v.1

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for relief filed before the enactment of the Act. See id.
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Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Because the BIA’s decision clearly
incorporated the adverse credibility findings made by the IJ, we review both
determinations at this time. See Chen, 376 F.3d at 222.
Based on a thorough review of the record, we conclude that the IJ’s adverse
credibility finding is supported by substantial evidence. Cao’s primary claim for relief is
that he would be persecuted based on his confrontation with his former employer in 1991.
In his written asylum application, Cao alleged: “the president of the company where I was
working in China wrongly used company funds to build his own house. When I
confronted him about it and said that the company and the government in China was [sic]
corrupt, the president used his political power as a member of the local government to
have me beaten and have the police arrest me.” (A.R. 236.) He confronted the president,
Mr. Wang, at an open meeting, where Mr. Wang denied the accusations and forced
petitioner to leave the meeting. (A.R. 276.) Cao claimed that Mr. Wang later offered him
a bribe in exchange for petitioner’s agreement not to expose him to the public, and when
he refused, Mr. Wang sent people to beat him up. (A.R. 276.) He reported this to the
police, who did not respond to his complaints but did try to arrest him. (A.R. 276.) Cao
also claimed that he was listed as an anti-communist dissident and that he feared that the
police would arrest him upon his return. (A.R. 236.) As noted by the IJ and the BIA,
however, Cao’s testimony at the hearing differed from his written allegations in several

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The IJ also held, in the alternative, that Cao failed to demonstrate a well-founded fear2
of persecution on account of a protected ground.
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significant respects: whether he returned to work after the incident or not, whether he quit
his job or was fired, whether he was included on an anti-dissident list maintained by the
Chinese government, whether such a list still existed, and whether the police continue to
look for him despite the passage of fifteen years. In light of these discrepancies, the IJ
concluded that Cao was not credible and the BIA agreed. Based on the evidence in the2
record, we are not compelled to reach a contrary conclusion.
With respect to his sterilization claim, we agree that Cao failed to carry his burden
of demonstrating an objectively reasonable possibility of sterilization should he be
returned to China. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (requiring
asylum applicant to demonstrate by “credible, direct, and specific evidence an objectively
reasonable basis for the claimed fear of persecution”). Cao presented to the IJ nothing
more than his testimony that he has three U.S.-born children. (A.R. 112.) The BIA has
previously held that such evidence, without more, is insufficient to support an asylum
claim based on China’s coercive family planning policies. See generally In re C-C-, 23 I.
& N. Dec. 899 (BIA 2006) (concluding that without additional evidence to the contrary,
recent State Department Country Reports indicate that petitioner’s claimed fear of
forcible sterilization was not reasonable); Yu v. Attorney Gen., 513 F.3d 346 (3d Cir.
2008) (affirming BIA determination based on same evidence presented in In re C-C-); see

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also Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) (agreeing with IJ that
respondent failed to sustain burden of proof in light of complete lack of evidence
corroborating specifics of asylum claim).
Based on the foregoing, we conclude that the IJ’s adverse credibility finding was
based on specific reasons supported by the record, that Cao has not shown that the record
compels a finding that he was credible and entitled to relief, and that the IJ’s
determination that Cao failed to demonstrate a well-founded fear of persecution was
supported by substantial evidence. Accordingly, we will deny the petition for review.

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