Filed: Feb. 02, 2011
Latest Update: Feb. 21, 2020
Summary: 09-5305-ag Gao v. Holder BIA Nelson, IJ A097 917 558 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: 09-5305-ag Gao v. Holder BIA Nelson, IJ A097 917 558 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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09-5305-ag
Gao v. Holder
BIA
Nelson, IJ
A097 917 558
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 2 nd day of February, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 ______________________________________
12
13 ZHO KUI GAO,
14 Petitioner,
15
16 v. 09-5305-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: David X. Feng, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Terri J. Scadron, Assistant
27 Director; Surell Brady, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Zho Kui Gao, a native and citizen of the People’s
6 Republic of China, seeks review of a November 30, 2009,
7 order of the BIA affirming the June 23, 2008, decision of
8 Immigration Judge (“IJ”) Barbara A. Nelson, which denied
9 Gao’s application for asylum, withholding of removal, and
10 relief under the Convention Against Torture (“CAT”). In re
11 Zho Kui Gao, No. A097 917 558 (B.I.A. Nov. 30, 2009), aff’g
12 No. A097 917 558 (Immig. Ct. N.Y.C. June 23, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d
20 162, 165-67 (2d Cir. 2008) (per curiam). For asylum
21 applications governed by the REAL ID Act, the agency may,
22 considering the totality of the circumstances, base a
2
1 credibility finding on an asylum applicant’s demeanor, the
2 plausibility of his account, or inconsistencies in his
3 statements, without regard to whether they go “to the heart
4 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
5 Contrary to Gao’s position, substantial evidence
6 supports the agency’s adverse credibility determination.
7 The agency reasonably relied on Gao’s inconsistencies and
8 omissions in arriving at its decision. See Xiu Xia Lin, 534
9 F.3d at 166, 167. As the IJ noted, Gao testified that he
10 had been a Christian since he was a child, but in his asylum
11 application, asserted that he became a Christian after
12 arriving in the United States. Gao also testified that it
13 was important to him to attend church, yet evidence
14 indicated that, despite having lived in the United States
15 for over 11 years, Gao started attending church only two
16 months before the merits hearing. In addition to these
17 consistencies regarding the basis of his claim, Gao
18 testified that he was permanently dismissed from school in
19 China in 1996, but stated in his asylum application that the
20 last time he attended school was in 1994. Finally, Gao
21 testified that he was arrested by the Chinese authorities
22 and detained overnight in 1995 and that he had gone into
3
1 hiding in China at the suggestion of his parents, but
2 omitted both of these incidents from his asylum application.
3 Given these inconsistencies and omissions, the agency’s
4 adverse credibility finding is supported by substantial
5 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu
6 Xia Lin, 534 F.3d at 166, 167 (“We defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.”). Finally,
10 the agency did not err in finding that Gao does not have a
11 well-founded fear of persecution if he is returned to China.
12 Gao’s claim of a well-founded fear of future persecution is
13 based on his alleged Christian practices while in the United
14 States. But, because he was found not credible regarding
15 those practices, his claim must fail.
16 Gao also argues that the agency erred in affirming the
17 IJ’s decision not to admit late-submitted evidence. This
18 argument is unavailing. The IJ acted within her discretion
19 in excluding the items. See Dedji v. Mukasey,
525 F.3d 187,
20 192 (2d Cir. 2008) (holding that IJs have discretion to
21 establish and enforce filing deadlines for submission of
22 documents).
4
1 Because Gao’s asylum and withholding of removal claims
2 were based on the same factual predicate, the agency’s
3 adverse credibility determination was a proper basis for the
4 denial of both his asylum and withholding claims. See Paul
5 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We decline
6 to reach Gao’s CAT claim, as it was not sufficiently argued
7 in his brief. See Yueqing Zhang v. Gonzales,
426 F.3d 540,
8 545 n.7 (2d Cir. 2005).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
5
