Huijuan Gao v. Holder

10-4466-ag Gao v. Holder BIA Page, IJ A097 391 012 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 20th day of April, two thousand twelve. 5 6 PRESENT: 7 RALPH K. WINTER, 8 JOSEPH M. MCLAUGHLIN, 9 REENA RAGGI, 10 Circuit Judges. 11 ______________________________________ 12 13 HUIJUAN GAO, 14 Petitioner, 15 16 v. 10-4466-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 24 FOR PETITIONER: Gary J. Yerman, New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Jamie M. Dowd, Senior 28 Litigation Counsel; Sabatino F. Leo, 29 Trial Attorney, Office of 30 Immigration Litigation, U.S. 31 Department of Justice, Washington 32 D.C. 33 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 Huijuan Gao, a native and citizen of China, 6 seek review of the October 20, 2010 decision of the BIA 7 affirming the September 16, 2008 decision of Immigration 8 Judge (“IJ”) Alan L. Page, denying Huijuan Gao’s application 9 for asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Huijuan Gao, No. 11 A097 391 012 (B.I.A. Oct. 20, 2010), aff’g No. A097 391 012 12 (Immig. Ct. N.Y. City Sept. 16, 2008). We assume the 13 parties’ familiarity with the underlying facts and 14 procedural history in this case, which we reference only to 15 explain our decision to deny the petition for review. 16 Under the circumstances of this case, we review the 17 IJ’s decision, as supplemented by the BIA, for substantial 18 evidence. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 19 (2d Cir. 2005). Where, as here, the asylum application 20 preceded passage of the REAL ID Act, an adverse credibility 21 determination informing the challenged decision must be 22 based on “specific, cogent” reasons that bear a “legitimate 23 nexus” to the finding. See Dong Zhong Zheng v. Mukasey, 552 24 F.3d 277, 287 (2d Cir. 2009). 2 1 Substantial evidence supports the agency’s adverse 2 credibility determination. In finding the petitioner not 3 credible, the agency reasonably found that there were 4 inconsistencies in the record that went to the heart of the 5 petitioner’s claim. Specifically, the IJ detailed the 6 discrepancies in the record as to when the petitioner’s 7 abortion occurred and the length of her pregnancy at the 8 time of the abortion. See Li Hua Lin v. U.S. Dep’t of 9 Justice, 453 F.3d 99, 109 (2d Cir. 2006). The IJ was not 10 required to accept the petitioner’s unconvincing explanation 11 for these discrepancies. See Majidi v. Gonzales, 430 F.3d 12 77, 80-81 (2d Cir. 2005). Additionally, the BIA correctly 13 noted the absence of corroborating evidence to support the 14 petitioner’s claim that she had undergone a forced abortion 15 in China. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d 16 Cir. 2007). 17 In addition, the agency reasonably relied in part on 18 the petitioner’s demeanor, which suggested that she was not 19 being “forthright” and was answering questions in an 20 “evasive” manner. See Majidi, 430 F.3d at 81 n.1. As we 21 have noted, “[w]e can be still more confident in our review 22 of observations about an applicant’s demeanor where, as 23 here, they are supported by specific examples of 24 inconsistent testimony.” Li Hua Lin, 453 F.3d at 109. 3 1 Indeed, the record supports the IJ’s determination that the 2 petitioner’s demeanor became evasive when she was asked to 3 explain the discrepancy between her conflicting accounts of 4 when her abortion occurred, and how long she had been 5 pregnant at the time of her abortion. See id. 6 Because the adverse credibility determination was 7 supported by substantial evidence, the denial of asylum, 8 withholding of removal, and CAT relief was not in error 9 because those claims were based on the same factual 10 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 11 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 4