Chao Cao v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHAO CAO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 15-70392
Agency No. A087-715-126
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 30, 2021**
Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.
Chao Cao, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withholding of removal, and protection under the Convention Against Torture
(“CAT”), and determining that he had filed a frivolous asylum application.
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions
of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the
extent that deference is owed to the BIA’s interpretation of the governing statutes
and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We
review for substantial evidence the agency’s factual findings, applying the
standards governing adverse credibility determinations under the REAL ID Act.
Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir. 2010). We deny the petition
for review.
“An asylum application is frivolous if . . . [a]ny of the material
elements . . . is deliberately fabricated.” 8 C.F.R. § 1208.20(a)(1) (Jan. 11, 2021).
To sustain a finding of frivolousness, (1) “an asylum applicant must have notice of
the consequences of filing a frivolous application;” (2) “the IJ or Board must make
specific findings that the applicant knowingly filed a frivolous application;” (3)
“those findings must be supported by a preponderance of the evidence;” and (4)
“the applicant must be given sufficient opportunity to account for any
discrepancies or implausibilities in his application.” Fernandes v. Holder, 619
F.3d 1069, 1076 (9th Cir. 2010) (quoting Ahir v. Mukasey, 527 F.3d 912, 917 (9th
Cir. 2008)).

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The agency determined that Cao fabricated evidence concerning his
relationship with his father and his father’s whereabouts. Cao acknowledges that
he “gave somewhat inconsistent testimony” about those matters yet contends that
the fabricated elements of his claim were not material. “[A] concealment or
misrepresentation is material if it ‘has a natural tendency to influence . . . the
decision of the decisionmaking body to which it was addressed.’” Matter of B-Y-,
25 I.& N. Dec. 236, 244 (BIA 2010) (omission in original) (quoting Kungys v.
United States, 485 U.S. 759, 770 (1988)).
The agency determined that Cao’s fabrications were material because they
concealed what Cao now concedes “might have been one partial factor” in his
decision to leave China for the United States, that is, to spend time with his father.
That finding is supported by the preponderance of the evidence. The agency
therefore did not err in determining that Cao submitted a frivolous application. See
Fernandes, 619 F.3d at 1076 (“[T]he IJ gave cogent and convincing reasons for her
specific finding that Fernandes’s application was fraudulent.”). Cao is ineligible
for asylum and withholding of removal.
The agency also determined that Cao’s testimony was not credible. “[T]o
overturn an IJ’s adverse credibility determination, we must find that ‘the evidence
not only supports [a contrary] conclusion, but compels it.’” Lianhua Jiang v.
Holder, 754 F.3d 733, 739 (9th Cir. 2014) (emphases omitted) (second alteration in

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original). Substantial evidence supports the agency’s adverse credibility
determination for several reasons, including the fabricated testimony concerning
Cao’s father and also inconsistencies within Cao’s testimony concerning his
actions in China after his uncle’s arrest.
Substantial evidence supports the agency’s denial of Cao’s claim for CAT
protection because it was based on the same evidence that the agency found not
credible, and Cao does not point to other evidence in the record that compels the
conclusion that it is more likely than not he would be tortured by or with the
consent or acquiescence of the government if returned to China. See Shrestha, 590
F.3d at 1048–49.
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.

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