Filed: Jan. 12, 2017
Latest Update: Mar. 03, 2020
Summary: 15-2770 Gao v. Lynch BIA Poczter, IJ A200 185 341 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 NOTAT
Summary: 15-2770 Gao v. Lynch BIA Poczter, IJ A200 185 341 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 NOTATI..
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15-2770
Gao v. Lynch
BIA
Poczter, IJ
A200 185 341
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 12th day of January, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 LI ZHU GAO, AKA LIZHU GAO,
14 Petitioner,
15
16 v. 15-2770
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Keith S. Barnett, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Leslie
27 McKay, Assistant Director; Anthony
28 J. Messuri, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 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 is
4 DENIED.
5 Petitioner Li Zhu Gao, a native and citizen of the People’s
6 Republic of China, seeks review of an August 18, 2015, decision
7 of the BIA, affirming a December 13, 2013, decision of an
8 Immigration Judge (“IJ”) denying Gao’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Li Zhu Gao, No. A200 185 341 (B.I.A.
11 Aug. 18, 2015), aff’g No. A200 185 341 (Immig. Ct. N.Y. City
12 Dec. 13, 2013). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
16 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
17 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
18 Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
19 For asylum applications like Gao’s, governed by the REAL
20 ID Act, the agency may, “[c]onsidering the totality of the
21 circumstances,” base a credibility finding on inconsistencies
22 and omissions in an applicant’s statements, “without regard to
23 whether” those inconsistencies go “to the heart of the
2
1 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
2 Lin, 534 F.3d at 163-64, 166 n.3. “We defer . . . to an IJ’s
3 credibility determination unless, from the totality of the
4 circumstances, it is plain that no reasonable fact-finder could
5 make such an adverse credibility ruling.” Xiu Xia Lin,
534 F.3d
6 at 167. As discussed below, the adverse credibility
7 determination rests on substantial evidence.
8 The agency reasonably relied on Gao’s internally
9 inconsistent testimony concerning whether police in China were
10 seeking her whereabouts. 8 U.S.C. § 1158(b)(1)(B)(iii). On
11 direct examination, Gao testified that only her family members
12 were aware of her Christian faith and that she feared returning
13 to China because, based on her aunt’s detention and what others
14 had told her, she would be persecuted for attending an
15 underground church. On cross examination, however, Gao
16 mentioned for the first time that the authorities had discovered
17 her name and address on religious materials she sent to her aunt
18 and then visited Gao’s parents’ home to warn that Gao would face
19 “big trouble” if she returned to China. Because this
20 inconsistency concerned an issue central to Gao’s alleged fear
21 of future persecution on account of her Christian faith, it
22 provides substantial evidence to support the adverse
23 credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii);
3
1 Xiu Xia Lin, 534 F.3d at 167; cf. Xian Tuan Ye v. Dep’t of
2 Homeland Sec.,
446 F.3d 289, 295 (2d Cir. 2006) (“[A] material
3 inconsistency in an aspect of [an applicant’s] story that served
4 as an example of the very persecution from which he sought
5 asylum . . . afforded substantial evidence to support the
6 adverse credibility finding.”).
7 Nor was the agency compelled to accept Gao’s shifting
8 explanations for the inconsistency. See Majidi v. Gonzales,
9
430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than
10 offer a plausible explanation for his inconsistent statements
11 to secure relief; he must demonstrate that a reasonable
12 fact-finder would be compelled to credit his testimony.”
13 (quoting Zhou Yun Zhang v. INS,
386 F.3d 77, 76 (2d Cir. 2004))).
14 First, Gao explained that her parents waited until August 2011
15 to tell her about the police visit. Second, when confronted
16 with the fact that this did not explain omitting the information
17 on direct, Gao gave a non-responsive answer that she feared
18 police would report her to family planning officials. Third,
19 when pressed as to why she failed to mention the police visit
20 earlier, the record reflects a long pause after which Gao stated
21 that she did not know why she did not mention it before. Gao
22 now proffers that, on direct examination, she was not asked her
23 about police activities in China following her aunt’s arrest.
4
1 This additional explanation is not compelling because Gao was
2 specifically asked why she feared returning to China and failed
3 to mention the police visit. See Majidi, 430 F.3d at 80.
4 The adverse credibility determination is further supported
5 by Gao’s internally inconsistent testimony concerning the
6 alleged police visit. Gao initially revealed one visit, but
7 later said that police visited her parents’ house a second time.
8 When asked why she did not mention the second visit earlier,
9 she stated that the police were “just passing by [her] house”
10 whereas the first time they came to give a “severe warning.”
11 The IJ again reasonably concluded that this was not a compelling
12 explanation, and that the omission was significant because
13 police interest in Gao would bolster her claim of future harm.
14 See
Majidi, 430 F.3d at 80.
15 Given the inconsistencies identified concerning the basis
16 for Gao’s fear of persecution in China it cannot be said “that
17 no reasonable fact-finder could make such an adverse
18 credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167. That
19 finding is dispositive of asylum, withholding of removal, and
20 CAT relief because all forms of relief are based on the same
21 factual predicate. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d
22 Cir. 2006).
23 For the foregoing reasons, the petition for review is
5
1 DENIED. As we have completed our review, any stay of removal
2 that the Court previously granted in this petition is VACATED,
3 and any pending motion for a stay of removal in this petition
4 is DISMISSED as moot. Any pending request for oral argument
5 in this petition is DENIED in accordance with Federal Rule of
6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
7 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
6
