         09-1326-ag
         Gao v. Holder
                                                                                         BIA
                                                                                 Schoppert, IJ
                                                                                A095 710 413
                          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 16 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROGER J. MINER,
10                PIERRE N. LEVAL,
11                     Circuit Judges.
12       _______________________________________
13
14       MEI MI GAO,
15                Petitioner,
16
17                       v.                                     09-1326-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                Mei Mi Gao, pro se, New York, New
25                                      York.
 1   FOR RESPONDENT:        Tony West, Assistant Attorney
 2                          General, Civil Division; Emily Anne
 3                          Radford, Assistant Director; Craig A.
 4                          Newell, Jr., Senior Litigation
 5                          Counsel, Office of Immigration
 6                          Litigation, Civil Division, United
 7                          States Department of Justice,
 8                          Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

11   Board of Immigration Appeals (“BIA”) decision, it is hereby

12   ORDERED, ADJUDGED, AND DECREED that the petition for review

13   is DENIED.

14       Petitioner Mei Mi Gao, a native and citizen of the

15   People’s Republic of China, seeks review of a January 8,

16   2009 order of the BIA affirming the May 30, 2007 decision of

17   Immigration Judge (“IJ”) Douglas B. Schoppert denying her

18   application for asylum, withholding of removal, and relief

19   under the Convention Against Torture (“CAT”).    In re Mei Mi

20   Gao, No. A095 710 413 (B.I.A. Jan. 8, 2009), aff’g No. A095

21   710 413 (Immig. Ct. N.Y. City May 30, 2007).    The BIA

22   reissued its January 8, 2009 decision on March 10, 2009.     In

23   re Mei Mi Gao, No. A095 710 413 (B.I.A. Mar. 10, 2009).     We

24   assume the parties’ familiarity with the underlying facts

25   and procedural history in this case.

26       Under the circumstances of this case, this Court reviews



                                   2
1    the IJ’s decision as the final agency determination.      See

2    Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).         The

3    applicable standards of review are well-established.

4    Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);

5    Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

6    For asylum applications governed by the REAL ID Act of 2005,

7    the agency may, in considering the totality of the

8    circumstances, base a credibility finding on an asylum

9    applicant’s demeanor, the plausibility of his or her

10   account, and inconsistencies in his or her statements,

11   without regard to whether they go “to the heart of the

12   applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii).   This

13   Court “defer[s] . . . to an IJ’s credibility determination

14   unless, from the totality of the circumstances, it is plain

15   that no reasonable fact-finder could make such an adverse

16   credibility ruling.”     Xiu Xia Lin v. Mukasey, 534 F.3d 162,

17   167 (2d Cir. 2008)(per curiam).

18       The IJ’s adverse credibility finding is supported by

19   substantial evidence.     Id. at 165-66.   In finding Gao not

20   credible, the IJ found that: (1) her demeanor was not

21   forthcoming and that she testified “in a way which struck me

22   as not based on actual lived experiences, but in what I

                                      3
1    would describe as a rote manner, perhaps from a story that

2    she had memorized”; (2) it was implausible that she had been

3    practicing Falun Gong for over two years based on her

4    inability to name or perform any of the exercises; and (3)

5    she failed to provide sufficient corroborating evidence to

6    rehabilitate her testimony.

7        Gao does not challenge the IJ’s findings that she failed

8    to provide corroborating evidence, and this finding stands

9    as a valid basis for the IJ’s adverse credibility

10   determination.   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

11   Cir. 2007)(per curiam).   Rather, Gao argues that the IJ

12   erred in relying on her lack of doctrinal knowledge of Falun

13   Gong as a basis for the adverse credibility determination.

14   However, we find no error in the IJ’s reliance, in part, on

15   Gao’s inability to name or perform the five exercises of

16   Falun Gong in light of her assertion that she practiced

17   Falun Gong for over two years.       See Rizal v. Gonzales, 442

18   F.3d 84, 90 (2d Cir. 2006).   Moreover, we find no error in

19   the IJ’s reliance on Gao’s demeanor as a basis for the

20   adverse credibility determination.       See Majidi v. Gonzales,

21   430 F.3d 77, 81 n.1 (2d Cir. 2005).

22       Although Gao argues that she experienced problems


                                      4
1    understanding the interpreter at her merits hearing, she

2    failed to raise this issue before the BIA, and we decline to

3    address it.   See Lin Zhong v. U.S. Dept of Justice, 480 F.3d

4    104, 119-20 (2d Cir. 2007).   Similarly, we decline to review

5    the additional arguments raised in Gao’s reply brief that:

6    (1) she was denied relief due to the ineffective assistance

7    of counsel; and (2) she fears returning to China because she

8    is pregnant with her first child.   Id.; McCarthy v. S.E.C.,

9    406 F.3d 179, 186 (2d Cir. 2005).

10       For the foregoing reasons, the petition for review is

11   DENIED.   As we have completed our review, any pending motion

12   for a stay of removal in this petition is DISMISSED as moot.

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
16
17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20
21




                                    5
