Yu Lin You-Gao v. Holder

13-486
You-Gao v. Holder
BIA
Chew, I.J.
A095 800 469
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of May, two thousand fourteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RALPH K. WINTER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _____________________________________
13
14 YU LIN YOU-GAO,
15 Petitioner,
16
17 v. 13-486
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, New York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Francis W. Fraser, Senior
29 Litigation Counsel; Jason Wisecup,
 1 Trial Attorney, Civil Division,
2 Office of Immigration Litigation,
3 United States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a

7 decision of the Board of Immigration Appeals (“BIA”), it is

8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

9 review is DENIED.

10 Yu-Lin You-Gao, a native and citizen of the People’s

11 Republic of China, seeks review of a January 18, 2013, order

12 of the BIA affirming the June 1, 2011, decision of an

13 Immigration Judge (“IJ”) denying his application for asylum,

14 withholding of removal, and relief under the Convention

15 Against Torture (“CAT”). See In re Yu-Lin You-Gao, No. A095

16 800 469 (B.I.A. Jan. 18, 2013), aff’g No. A095 800 469

17 (Immig. Ct. N.Y. City June 1, 2011). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 of this case.

20 Under the circumstances of this case, we review the

21 IJ’s decision as supplemented by the BIA. See Yan Chen v.

22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

23 standards of review are well-established. See 8 U.S.C.

24 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

25 (2d Cir. 2009).

2
 1 We conclude that substantial evidence supports the

2 agency’s finding that You-Gao’s testimony was not credible.

3 First, the IJ found that You-Gao’s demeanor called his

4 credibility into question, a finding that we give

5 “particular weight.” See Majidi v. Gonzales, 430 F.3d 77,

6 81 n.1 (2d Cir. 2005). You-Gao argues that the IJ

7 “creat[ed] an assumption of nervousness” by observing that

8 he was nervous during the proceedings and directing him to

9 get a drink of water. The IJ, however, cannot be faulted

10 for observing You-Gao’s demeanor.

11 Moreover, You-Gao’s testimony lacked details regarding

12 the topic of a recent sermon he attended, which prayer

13 groups he was part of, and the contents of fliers he handed

14 out in China. Cf. Li Hua Lin v. U.S. Dep’t of Justice, 453

15 F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident

16 in our review of observations about an applicant’s demeanor

17 where, as here, they are supported by specific examples of

18 inconsistent testimony.”). The agency was not compelled to

19 accept You-Gao’s explanation that he “forgot” the contents

20 of the sermon, which prayer groups he attended, and the

21 contents of the fliers. See Majidi, 430 F.3d at 80-81.

22 Moreover, the agency reasonably concluded that You-Gao’s

3
 1 assertion that he handed out religious fliers without

2 knowing anything of their contents is implausible. Thus,

3 You-Gao’s demeanor, and the lack of details in and

4 implausibility of his testimony, provide substantial support

5 for the agency’s adverse credibility determination, which is

6 dispositive of his asylum claim. See Xiu Xia Lin v.

7 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

8 The agency’s adverse credibility determination is also

9 dispositive of You-Gao’s withholding of removal and CAT

10 claims, as those claims depend on the same factual

11 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

12 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

13 523 (2d Cir. 2005).

14 For the foregoing reasons, the petition for review is

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

16 removal that the Court previously granted in this petition

17 is VACATED, and any pending motion for a stay of removal in

18 this petition is DISMISSED as moot. Any pending request for

19 oral argument in this petition is DENIED in accordance with

20 Federal Rule of Appellate Procedure 34(a)(2), and Second

21 Circuit Local Rule 34.1(b).

22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25

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