13-2197
Gao v. Lynch
BIA
Sichel, IJ
A094 813 685
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 3rd day of September, two thousand fifteen.
5
6 PRESENT:
7
8 ROSEMARY S. POOLER,
9 BARRINGTON D. PARKER,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 YANG GAO,
15 Petitioner,
16
17 v. 13-2197
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gerald Karikari, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Jennifer Paisner Williams,
28 Senior Litigation Counsel; Margaret
29 Kuehne Taylor, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Petitioner Yang Gao, a native and citizen of the
6 People’s Republic of China, seeks review of a May 9, 2013,
7 decision of the BIA affirming the May 13, 2011, decision of
8 an Immigration Judge (“IJ”), which denied his application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Yang Gao, No.
11 A094 813 685 (B.I.A. May 9, 2013), aff’g No. A094 813 685
12 (Immig. Ct. N.Y.C. May 13, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA decision. See Xue
17 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
18 Cir. 2005). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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1 I. One-Year Bar to Asylum
2 Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction
3 to review the agency’s determination that an asylum
4 application is untimely under § 1158(a)(2)(B).
5 Notwithstanding these provisions, we retain jurisdiction to
6 review “constitutional claims or questions of law.” 8
7 U.S.C. § 1252(a)(2)(D). While Gao raises an argument which
8 may be construed as a question of law, namely that the
9 agency applied too heavy a burden by requiring details of
10 his travel and corroborating evidence, this argument fails
11 as it was Gao’s burden to provide clear and convincing
12 evidence of his time of arrival. Apart from that
13 allegation, Gao’s challenge is solely to the IJ’s fact
14 finding, which we do not have jurisdiction to review. See
15 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
16 Cir. 2006).
17 II. Withholding of Removal and CAT
18 The BIA denied withholding of removal and CAT relief,
19 affirming the IJ’s adverse credibility ruling as to Gao’s
20 claims of past persecution and finding that Gao had not
21 satisfied his burden to show that he was more likely than
22 not to face future persecution or torture on account of his
23 Falun Gong practice in the United States.
3
1 A. Credibility
2 “We defer. . . to an IJ’s credibility determination
3 unless, from the totality of the circumstances, it is plain
4 that no reasonable fact-finder could make such an adverse
5 credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,
6 167 (2d Cir. 2008) (per curiam).
7 In finding Gao not credible, the agency reasonably
8 relied on his inconsistent testimony and omission of a
9 relevant incident related to his claim of past persecution
10 from his asylum application. See id. at 167. During his
11 merits hearing, Gao testified that police officers accused
12 him of practicing Zhong Gong when they arrested him, but in
13 his asylum application, he stated that they accused him of
14 practicing Falun Gong. He also testified that the police
15 came to his house after he was released from custody, but
16 that fact was not included in his asylum application or a
17 letter written by his mother. Under the REAL ID Act, the
18 agency properly relied on these inconsistencies as a basis
19 for the adverse credibility finding. See 8 U.S.C. §§
20 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at
21 167 (providing that an IJ may support an adverse credibility
22 determination with “any inconsistency or omission”). In
4
1 addition, the omission goes to the heart of Gao’s claim, as
2 it was the one incident that occurred after his alleged
3 arrest in the five years before he left China and the only
4 evidence of any continuing interest in him by the
5 authorities. Accordingly, the agency’s adverse credibility
6 determination is supported by substantial evidence. Xiu Xia
7 Lin, 534 F.3d at 167.
8 B. Future Persecution or Torture
9 The IJ and the BIA credited Gao’s Falun Gong practice,
10 but concluded that he had not established that he would
11 likely be persecuted on that basis in China. Because Gao
12 failed to demonstrate past persecution, he was not entitled
13 to a presumption of future persecution or torture and was
14 required to make an independent showing that he would likely
15 be subject to harm rising to the level of persecution if
16 returned to China. 8 C.F.R. §§ 1208.16(b)(2); 1208.17(a).
17 Accordingly, Gao was required to demonstrate either that he
18 would be singled out for persecution or torture or that
19 there exists a pattern or practice of persecution or torture
20 of Falun Gong practitioners. Id.; see Jian Xing Huang v.
21 INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that
22 absent solid support in the record for the petitioner’s
23 assertion that he would be persecuted, his fear was
5
1 “speculative at best”). Gao did not testify that he planned
2 to continue practicing Falun Gong in China and, considering
3 that he previously gave up his similar practice of Zhong
4 Gong, the agency did not err in finding that he failed to
5 meet his burden.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, the pending motion
8 for a stay of removal in this petition is DISMISSED as moot.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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