Filed: Sep. 30, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3450-ag Gao v. Holder BIA Sichel, IJ A078 845 638 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 NO
Summary: 09-3450-ag Gao v. Holder BIA Sichel, IJ A078 845 638 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 NOT..
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09-3450-ag
Gao v. Holder
BIA
Sichel, IJ
A078 845 638
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30 th day of September, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _______________________________________
13
14 HUI GAO,
15 Petitioner,
16
17 v. 09-3450-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: H. Raymond Fasano, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Ada E. Bosque, Senior
29 Litigation Counsel; Jem C.
1 Sponzo, Trial Attorney, Office
2 of Immigration Litigation,
3 United States Department of
4 Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DENIED.
10 Hui Gao, a native and citizen of the People’s Republic
11 of China, seeks review of a July 13, 2009, order of the BIA
12 affirming the November 19, 2007, decision of Immigration
13 Judge (“IJ”) Helen Sichel, which denied his applications for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Hui Gao, No. A078
16 845 638 (B.I.A. July 13, 2009), aff’g No. A078 845 638
17 (Immig. Ct. N.Y. City Nov. 19, 2007). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history.
20 Under the circumstances of this case, we review both
21 the BIA’s and IJ’s opinions, including portions of the IJ’s
22 decision not explicitly discussed by the BIA. See Yun-Zui
23 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
24 applicable standards of review are well-established. See 8
25 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
2
1 F.3d 510, 513 (2d Cir. 2009 ).
2 We lack jurisdiction to consider Gao’s challenge to the
3 agency’s pretermission of his asylum application.
4 See 8 U.S.C. § 1158(a)(3) (barring any court from exercising
5 jurisdiction over any determination of the Attorney General
6 regarding the timeliness of an asylum application under §
7 1158(a)(2)(B)). Although we retain jurisdiction to review
8 constitutional claims and questions of law, 8 U.S.C. §
9 1252(a)(2)(D), Gao raises no such argument, essentially
10 disputing the IJ’s purely factual finding that Gao’s
11 testimony regarding his ineffective assistance of counsel
12 was not credible. See Xiao Ji Chen v. U.S. Dep’t of Justice,
13
471 F.3d 315, 328 (2d Cir. 2006) (finding that a question of
14 law is not implicated “when the petition for review
15 essentially disputes the correctness of the IJ’s fact-
16 finding or the wisdom of his exercise of discretion”).
17 As to Gao’s application for withholding of removal, the
18 IJ’s adverse credibility determination is supported by
19 substantial evidence. The IJ relied on inconsistencies
20 between Gao’s testimony that he fled China in April 2001,
21 and his college diploma, which says that he attended a
22 government university in China until July 2001. See Xian
3
1 Tuan Ye v. Dep’t of Homeland Sec. 446 F.3d 289, 294 (2d Cir.
2 2006) . The IJ further relied on the inconsistency between
3 Gao’s testimony that a “Mr. Nu” of the “Hong Mei Legal
4 Office” on “East Broadway” prepared his asylum application,
5 and his original asylum application which states that it was
6 prepared by “Louis Lu” at “51-19 Judge Street, Elmhurst,
7 NY.” See Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir.
8 2007) (relying on the maxim, “falsus in uno, falsus in
9 omnibus”, to find that once an IJ concludes that a document
10 is false, he or she is “free to deem suspect other documents
11 (and to disbelieve other testimony) that depend for
12 probative weight upon [the applicant’s] veracity”). To the
13 extent that Gao offered explanations for these
14 inconsistencies, the IJ was not compelled to credit them.
15 See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
16 Given Gao’s questionable testimony, the IJ reasonably
17 found that his failure to provide adequate corroboration for
18 his practice of Falun Gong further undermined the veracity
19 of his claim. See Biao Yang v. Gonzales,
496 F.3d 268, 273
20 (2d Cir. 2007) . Gao complains that the IJ erroneously
21 declined to give significant weight to letters from his
22 father and friend (finding that they were “unsworn
4
1 statements”) or to pictures of Gao engaging in Falun Gong
2 activities in the United States (finding that they were
3 self-serving and did not make up for his failure to provide
4 testimony or affidavits from witnesses to his Falun Gong
5 activities). However, the weight afforded to the applicant’s
6 evidence in immigration proceedings “lies largely within the
7 discretion of the IJ”. Xiao Ji Chen v. U.S. Dep’t of
8 Justice, 471 F.3d 315, 342 (2d Cir. 2006).
9 The IJ found that the “Disease Certificate,” which Gao
10 submitted to corroborate his claim that his grandfather died
11 after police beat him, failed to demonstrate that Gao’s
12 grandfather died of anything other than being “a very
13 elderly gentlemen.” However, the Disease Certificate
14 indicates that Gao’s grandfather’s situation was “urgent”
15 due to “Cerebral Concussion, several parts of his body slit
16 up, unconscious.” Nonetheless, the remainder of the IJ’s
17 findings, absent this one erroneous finding, are alone
18 sufficient to support an adverse credibility determination.
19 Remand therefore would be futile. See Xiao Ji Chen,
471
20 F.3d at 339 (explaining that “[t]he overarching test for
21 deeming a remand futile” is whether the “reviewing court can
22 confidently predict that the [IJ] would reach the same
23 decision absent the errors that were made”).
5
1 Gao does not challenge the agency’s denial of his CAT
2 claim before this Court.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
6
