11-2670-ag
Gao v. Holder
                                                                                BIA
                                                                         Schoppert, IJ
                                                                        A088 372 134
                 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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 6th day of April, two thousand twelve.

PRESENT:
         JON O. NEWMAN,
         JOSEPH M. McLAUGHLIN,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.
_____________________________________

SI AN GAO,
         Petitioner,

                v.                                      11-2670-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_____________________________________

FOR PETITIONER:                Norman Kwai Wing Wong, New York, New
                               York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Derek C. Julius, Senior Litigation
                               Counsel;    Rebekah    Nahas,    Trial
                           Attorney,   Office   of    Immigration
                           Litigation, Civil Division, United
                           States    Department    of    Justice,
                           Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner   Si   An   Gao,   a     native   and   citizen   of   the

People’s Republic of China, seeks review of a June 9, 2011,

order of the BIA affirming the January 26, 2009, decision of

Immigration   Judge   (“IJ”)   Douglas     Schoppert    denying   Gao’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).             In re Si An

Gao, No. A088 372 134 (B.I.A. June 9, 2011), aff’g No. A088

372 134 (Immig. Ct. N.Y. City Jan. 26, 2009).            We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA.          See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).             The applicable

standards of review are well-established.                See 8 U.S.C.

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009).

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     The agency reasonably concluded that Gao’s testimony was

not credible because he testified that he was detained and

beaten and his employer withheld his salary because of his

violation of the family planning policy, but did not mention

these   events     in   his   asylum   application.     See   8   U.S.C.

§ 1158(b)(1)(B)(iii) (providing that for asylum applications

governed by the REAL ID Act, the agency may, considering the

totality of the circumstances, base a credibility finding on

an asylum applicant’s “responsiveness” and inconsistencies in

her statements without regard to whether they go “to the heart

of the applicant’s claim”); Xiu Xia Lin v. Mukasey, 534 F.3d

162, 166 (2d Cir. 2008) (providing that, for purposes of

analyzing a credibility determination, “[a]n inconsistency and

an omission are . . . functionally equivalent”).

     The IJ did not err in rejecting Gao’s explanations that

he   forgot   to    include     this     information   in   his   asylum

application and did not consider his detention part of an

arrest.   See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

2005) (“A petitioner must do more than offer a plausible

explanation for his inconsistent statements to secure relief;

he must demonstrate that a reasonable fact-finder would be

compelled to credit his testimony.” (emphasis in original;


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quotations omitted)).       While Gao now argues that he had an

incentive to present different aspects of his experience as a

result of changes in the interpretation of immigration law

between the time he filed his asylum application and his

hearing before the IJ,1 that incentive does not undermine the

IJ’s conclusion that Gao omitted relevant information from his

asylum application.     Rather, these changes support the IJ’s

conclusion that Gao likely gave false testimony to bolster his

claim.   See Hassan v. Holder, 571 F.3d 631, 639 (7th Cir.

2009) (“[T]he IJ could conclude that Hassan’s testimony about

events not disclosed in his application was an attempt to

‘embellish’ his asylum claim.”).

    Additionally,     the    IJ   reasonably   found   that   Gao’s

corroborating evidence did not rehabilitate his testimony, but

instead undermined it because the letter from Gao’s wife also

did not mention his arrest and beating or the years he worked

without a salary.     See Biao Yang v. Gonzales, 496 F.3d 268,

273 (2d Cir. 2007) (concluding that once an asylum applicant’s

testimony has been called into question, an IJ can expect the


    1
     When Gao filed his asylum application, the BIA had held
that a husband could qualify for asylum based on the forcible
termination of his wife’s pregnancy.      That argument was
foreclosed by our decision in Shi Liang Lin v. U.S. Dep’t of
Justice, 494 F.3d 296 (2d Cir. 2007) (en banc).
                                  -4-
applicant      to   provide      corroboration           to    rehabilitate    that

testimony).

      Together, the discrepancies between Gao’s testimony and

his   asylum    application        and    his       wife’s     letter   constitute

substantial     evidence      in    support         of   the    agency’s   adverse

credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).

Accordingly, the agency did not err in concluding that Gao was

not eligible for asylum, withholding of removal, or CAT relief

based on his experiences under China’s family planning policy.

See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006).

      Finally, the agency did not err in concluding that Gao

did not otherwise demonstrate his eligibility for CAT relief.

Although he alleged that he would be tortured because he

departed from China illegally and applied for asylum in the

United     States,    he    presented          no    particularized        evidence

demonstrating that he is likely to be tortured if repatriated.

See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,

157–60 (2d Cir. 2005) (holding that a petitioner is not

“entitled to CAT protection based solely on the fact that she

is part of the large class of persons who have illegally

departed     China,”       and     that    beyond         generalized      country

conditions reports stating that some Chinese prisoners have


                                         -5-
been    tortured,   an   applicant   for   CAT   relief   must   submit

particularized evidence suggesting that she is likely to be

subject to torture in Chinese prisons) (emphasis in original).

       For the foregoing reasons, the petition for review is

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

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

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




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