13-1201
Gong v. Holder
BIA
Mulligan, IJ
A089 899 646
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
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APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
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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, 417 F.3d 268, 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, 562
F.3d 510, 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, 534 F.3d 162,
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 Lin, 534 F.3d at 167.
Here, the IJ reasonably based the adverse credibility
determination on Gong’s fraudulent claim of persecution.
See Xiu Xia Lin, 534 F.3d at 167. 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 Lin,
534 F.3d at 167; Siewe v. Gonzales, 480 F.3d 160, 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, 430 F.3d 77, 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,
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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, 453 F.3d 99, 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 Lin, 534 F.3d at
167.
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, 471
F.3d 315, 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, 677 F.3d 130 (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, 428 F.3d 391, 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 Siewe, 480 F.3d at 170.
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, 444 F.3d 148, 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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