Filed: Apr. 06, 2012
Latest Update: Feb. 22, 2020
Summary: 11-2670-ag Gao v. Holder BIA Schoppert, IJ A088 372 134 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
Summary: 11-2670-ag Gao v. Holder BIA Schoppert, IJ A088 372 134 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 ..
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11-2670-ag
Gao v. Holder
BIA
Schoppert, IJ
A088 372 134
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 6th day of April, two thousand twelve.
PRESENT:
JON O. NEWMAN,
JOSEPH M. McLAUGHLIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
SI AN GAO,
Petitioner,
v. 11-2670-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Norman Kwai Wing Wong, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Derek C. Julius, Senior Litigation
Counsel; Rebekah Nahas, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Si An Gao, a native and citizen of the
People’s Republic of China, seeks review of a June 9, 2011,
order of the BIA affirming the January 26, 2009, decision of
Immigration Judge (“IJ”) Douglas Schoppert denying Gao’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Si An
Gao, No. A088 372 134 (B.I.A. June 9, 2011), aff’g No. A088
372 134 (Immig. Ct. N.Y. City Jan. 26, 2009). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d
Cir. 2009).
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The agency reasonably concluded that Gao’s testimony was
not credible because he testified that he was detained and
beaten and his employer withheld his salary because of his
violation of the family planning policy, but did not mention
these events in his asylum application. See 8 U.S.C.
§ 1158(b)(1)(B)(iii) (providing that for asylum applications
governed by the REAL ID Act, the agency may, considering the
totality of the circumstances, base a credibility finding on
an asylum applicant’s “responsiveness” and inconsistencies in
her statements without regard to whether they go “to the heart
of the applicant’s claim”); Xiu Xia Lin v. Mukasey, 534 F.3d
162, 166 (2d Cir. 2008) (providing that, for purposes of
analyzing a credibility determination, “[a]n inconsistency and
an omission are . . . functionally equivalent”).
The IJ did not err in rejecting Gao’s explanations that
he forgot to include this information in his asylum
application and did not consider his detention part of an
arrest. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
2005) (“A petitioner must do more than offer a plausible
explanation for his inconsistent statements to secure relief;
he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” (emphasis in original;
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quotations omitted)). While Gao now argues that he had an
incentive to present different aspects of his experience as a
result of changes in the interpretation of immigration law
between the time he filed his asylum application and his
hearing before the IJ,1 that incentive does not undermine the
IJ’s conclusion that Gao omitted relevant information from his
asylum application. Rather, these changes support the IJ’s
conclusion that Gao likely gave false testimony to bolster his
claim. See Hassan v. Holder, 571 F.3d 631, 639 (7th Cir.
2009) (“[T]he IJ could conclude that Hassan’s testimony about
events not disclosed in his application was an attempt to
‘embellish’ his asylum claim.”).
Additionally, the IJ reasonably found that Gao’s
corroborating evidence did not rehabilitate his testimony, but
instead undermined it because the letter from Gao’s wife also
did not mention his arrest and beating or the years he worked
without a salary. See Biao Yang v. Gonzales, 496 F.3d 268,
273 (2d Cir. 2007) (concluding that once an asylum applicant’s
testimony has been called into question, an IJ can expect the
1
When Gao filed his asylum application, the BIA had held
that a husband could qualify for asylum based on the forcible
termination of his wife’s pregnancy. That argument was
foreclosed by our decision in Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296 (2d Cir. 2007) (en banc).
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applicant to provide corroboration to rehabilitate that
testimony).
Together, the discrepancies between Gao’s testimony and
his asylum application and his wife’s letter constitute
substantial evidence in support of the agency’s adverse
credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Accordingly, the agency did not err in concluding that Gao was
not eligible for asylum, withholding of removal, or CAT relief
based on his experiences under China’s family planning policy.
See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).
Finally, the agency did not err in concluding that Gao
did not otherwise demonstrate his eligibility for CAT relief.
Although he alleged that he would be tortured because he
departed from China illegally and applied for asylum in the
United States, he presented no particularized evidence
demonstrating that he is likely to be tortured if repatriated.
See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,
157–60 (2d Cir. 2005) (holding that a petitioner is not
“entitled to CAT protection based solely on the fact that she
is part of the large class of persons who have illegally
departed China,” and that beyond generalized country
conditions reports stating that some Chinese prisoners have
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been tortured, an applicant for CAT relief must submit
particularized evidence suggesting that she is likely to be
subject to torture in Chinese prisons) (emphasis in original).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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