13-1201
    Gong v. Holder
                                                                                BIA
                                                                         Mulligan, IJ
                                                                        A089 899 646
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT
                              SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 11th day of July, two thousand fourteen.

    PRESENT:
             PIERRE N. LEVAL,
             GUIDO CALABRESI,
             JOSÉ A. CABRANES,
                  Circuit Judges.
    _____________________________________

    LINGEN GONG,
             Petitioner,

                     v.                            13-1201
                                                        NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Dehai Zhang, Flushing, New York.




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FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
                       General; Emily Anne Radford,
                       Assistant Director; Nehal H. Kamani,
                       Trial Attorney, Office of
                       Immigration Litigation, 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.

    Lingen Gong, a native and citizen of the People’s

Republic of China, seeks review of a March 26, 2013,

decision of the BIA affirming an Immigration Judge’s (“IJ”)

April 11, 2011, decision, denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).     In re Lingen Gong, No.

A089 899 646 (B.I.A. Mar. 26, 2013), aff’g No. A089 899 646

(Immig. Ct. N.Y. City Apr. 11, 2011).    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 decision of the IJ as supplemented by the BIA.       See Yan

Chen v. Gonzales, 

, 271 (2d Cir. 2005).      The
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applicable standards of review are well established.       See 8

U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009).

    For applications such as Gong’s, governed by the REAL

ID Act of 2005, the agency may, “[c]onsidering the totality

of the circumstances,” base a credibility finding on the

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his account, and inconsistencies in his

statements, without regard to whether they go “to the heart

of the applicant’s claim.”   See 8 U.S.C. §

1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 

,

167 (2d Cir. 2008) (per curiam).    We “defer [] to an IJ’s

credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make” such a ruling.   Xiu Xia 

.

    Here, the IJ reasonably based the adverse credibility

determination on Gong’s fraudulent claim of persecution.

See Xiu Xia 

.    Before the IJ, Gong

admitted that he asserted a false claim of past persecution

both in his original asylum application and at his asylum

interview.   The IJ therefore reasonably relied on this
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admission and the inconsistency, between Gong’s initial

asylum application and interview and his amended

application, to find him not credible.     See Xiu Xia 

; Siewe v. Gonzales, 

, 170 (2d

Cir. 2007) (“[A] single instance of false testimony may . .

. infect the balance of the alien’s uncorroborated or

unauthenticated evidence”).

    Gong asserts that his false claim does not affect his

credibility because an adviser who misrepresented himself

as an attorney told him to lie and he later repudiated the

claim.   But the IJ considered and reasonably rejected that

explanation because Gong did not establish that he was

coerced to rely on that misadvice and he did not explicitly

repudiate the claim until pressed on cross-examination.

See Majidi v. Gonzales, 

, 80-81 (2d Cir. 2005).

    We also defer to the IJ’s finding that Gong’s demeanor

reflected negatively on his credibility.    Because Gong

initially denied having lied to an immigration officer, the

IJ reasonably found his later apology insincere.    That

finding, and the IJ’s finding that Gong appeared anxious,


                              4
were connected to his inconsistent testimony regarding his

fraudulent claim, and are therefore supported by the record

and entitled to deference.    See Li Hua Lin v. U.S. Dep’t of

Justice, 

, 109 (2d Cir. 2006).

       Given Gong’s inconsistent applications and insincere

and anxious demeanor, the totality of the circumstances

supports the agency’s adverse credibility determination.

See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

.

       These credibility problems were not resolved by Gong’s

corroborating evidence.    Although Gong’s church friend

testified on his behalf, the IJ reasonably gave his

testimony little weight because he admitted knowing little

about Gong.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 

, 342 (2d Cir. 2006) (the weight accorded to

evidence lies largely within agency’s discretion).    The IJ

also properly found that Gong’s letters and baptismal

certificate did not rehabilitate his testimony because the

authors were unavailable for cross-examination and the

baptismal certificate did not establish that he continued

to practice Christianity.    See id.; see also Matter of H-L-
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H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving

diminished evidentiary weight to letters whose authors were

not subject to cross-examination), rev’d on other grounds

by Hui Lin Huang v. Holder, 

(2d Cir. 2012).

    AS Gong argues, he was not required to obtain official

authentication of certificates from Chinese agencies

pursuant to 8 C.F.R. § 287.6.       See Cao He Lin v. U.S. Dep’t

of Justice, 

, 404-05 (2d Cir. 2005).      However,

he did not attempt to authenticate through any other means.

Such a failure “is significant” when, as here, the

certificates were not created contemporaneously to the

events described and the applicant was found not credible.

See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. at 215 n.5; see

also 

.

    The only evidence of a threat to Gong’s life or freedom

depended upon his credibility, so the adverse credibility

determination in this case necessarily precludes success on

his claims for asylum, withholding of removal, and CAT

relief.   See Paul v. Gonzales, 

, 156 (2d Cir.

2006).


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    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and 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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