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
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