         09-3450-ag
         Gao v. Holder
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A078 845 638
                           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 30 th day of September, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                RICHARD C. WESLEY,
11                     Circuit Judges.
12       _______________________________________
13
14       HUI GAO,
15                       Petitioner,
16
17                        v.                                    09-3450-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                     H. Raymond Fasano, New York, New
25                                           York.
26
27       FOR RESPONDENT:                     Tony West, Assistant Attorney
28                                           General; Ada E. Bosque, Senior
29                                           Litigation Counsel; Jem C.
1                               Sponzo, Trial Attorney, Office
2                               of Immigration Litigation,
3                               United States Department of
4                               Justice, Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10       Hui Gao, a native and citizen of the People’s Republic

11   of China, seeks review of a July 13, 2009, order of the BIA

12   affirming the November 19, 2007, decision of Immigration

13   Judge (“IJ”) Helen Sichel, which denied his applications for

14   asylum, withholding of removal, and relief under the

15   Convention Against Torture (“CAT”).     In re Hui Gao, No. A078

16   845 638 (B.I.A. July 13, 2009), aff’g No. A078 845 638

17   (Immig. Ct. N.Y. City Nov. 19, 2007).     We assume the

18   parties’ familiarity with the underlying facts and

19   procedural history.

20       Under the circumstances of this case, we review both

21   the BIA’s and IJ’s opinions, including portions of the IJ’s

22   decision not explicitly discussed by the BIA.     See Yun-Zui

23   Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).       The

24   applicable standards of review are well-established.       See 8

25   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562


                                  2
1    F.3d 510, 513 (2d Cir. 2009 ).

2        We lack jurisdiction to consider Gao’s challenge to the

3    agency’s pretermission of his asylum application.

4    See 8 U.S.C. § 1158(a)(3) (barring any court from exercising

5    jurisdiction over any determination of the Attorney General

6    regarding the timeliness of an asylum application under §

7    1158(a)(2)(B)).   Although we retain jurisdiction to review

8    constitutional claims and questions of law, 8 U.S.C. §

9    1252(a)(2)(D), Gao raises no such argument, essentially

10   disputing the IJ’s purely factual finding that Gao’s

11   testimony regarding his ineffective assistance of counsel

12   was not credible. See Xiao Ji Chen v. U.S. Dep’t of Justice,

13   471 F.3d 315, 328 (2d Cir. 2006) (finding that a question of

14   law is not implicated “when the petition for review

15   essentially disputes the correctness of the IJ’s fact-

16   finding or the wisdom of his exercise of discretion”).

17       As to Gao’s application for withholding of removal, the

18   IJ’s adverse credibility determination is supported by

19   substantial evidence.   The IJ relied on inconsistencies

20   between Gao’s testimony that he fled China in April 2001,

21   and his college diploma, which says that he attended a

22   government university in China until July 2001.     See Xian



                                      3
1    Tuan Ye v. Dep’t of Homeland Sec. 446 F.3d 289, 294 (2d Cir.

2    2006) .     The IJ further relied on the inconsistency between

3    Gao’s testimony that a “Mr. Nu” of the “Hong Mei Legal

4    Office” on “East Broadway” prepared his asylum application,

5    and his original asylum application which states that it was

6    prepared by “Louis Lu” at “51-19 Judge Street, Elmhurst,

7    NY.”      See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

8    2007) (relying on the maxim, “falsus in uno, falsus in

9    omnibus”, to find that once an IJ concludes that a document

10   is false, he or she is “free to deem suspect other documents

11   (and to disbelieve other testimony) that depend for

12   probative weight upon [the applicant’s] veracity”).      To the

13   extent that Gao offered explanations for these

14   inconsistencies, the IJ was not compelled to credit them.

15   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

16          Given Gao’s questionable testimony, the IJ reasonably

17   found that his failure to provide adequate corroboration for

18   his practice of Falun Gong further undermined the veracity

19   of his claim.      See Biao Yang v. Gonzales, 496 F.3d 268, 273

20   (2d Cir. 2007) .     Gao complains that the IJ erroneously

21   declined to give significant weight to letters from his

22   father and friend (finding that they were “unsworn



                                      4
1    statements”) or to pictures of Gao engaging in Falun Gong

2    activities in the United States (finding that they were

3    self-serving and did not make up for his failure to provide

4    testimony or affidavits from witnesses to his Falun Gong

5    activities). However, the weight afforded to the applicant’s

6    evidence in immigration proceedings “lies largely within the

7    discretion of the IJ”.     Xiao Ji Chen v. U.S. Dep’t of

8    Justice, 471 F.3d 315, 342 (2d Cir. 2006).

9        The IJ found that the “Disease Certificate,” which Gao

10   submitted to corroborate his claim that his grandfather died

11   after police beat him, failed to demonstrate that Gao’s

12   grandfather died of anything other than being “a very

13   elderly gentlemen.”     However, the Disease Certificate

14   indicates that Gao’s grandfather’s situation was “urgent”

15   due to “Cerebral Concussion, several parts of his body slit

16   up, unconscious.”     Nonetheless, the remainder of the IJ’s

17   findings, absent this one erroneous finding, are alone

18   sufficient to support an adverse credibility determination.

19   Remand therefore would be futile.     See Xiao Ji Chen, 471

20   F.3d at 339 (explaining that “[t]he overarching test for

21   deeming a remand futile” is whether the “reviewing court can

22   confidently predict that the [IJ] would reach the same

23   decision absent the errors that were made”).
                                     5
1        Gao does not challenge the agency’s denial of his CAT

2    claim before this Court.

3        For the foregoing reasons, the petition for review is

4    DENIED.   As we have completed our review, any stay of

5    removal that the Court previously granted in this petition

6    is VACATED, and any pending motion for a stay of removal in

7    this petition is DISMISSED as moot.    Any pending request for

8    oral argument in this petition is DENIED in accordance with

9    Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




                                    6
