     15-2770
     Gao v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 185 341

                         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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   12th day of January, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PIERRE N. LEVAL,
 9            JOSÉ A. CABRANES,
10                 Circuit Judges.
11   _____________________________________
12
13   LI ZHU GAO, AKA LIZHU GAO,
14            Petitioner,
15
16                  v.                                               15-2770
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Keith S. Barnett, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Leslie
27                                       McKay, Assistant Director; Anthony
28                                       J. Messuri, Trial Attorney, Office
29                                       of Immigration Litigation, United
30                                       States   Department   of   Justice,
31                                       Washington, D.C.
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 is

4    DENIED.

5        Petitioner Li Zhu Gao, a native and citizen of the People’s

6    Republic of China, seeks review of an August 18, 2015, decision

7    of the BIA, affirming a December 13, 2013, decision of an

8    Immigration Judge (“IJ”) denying Gao’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Li Zhu Gao, No. A200 185 341 (B.I.A.

11   Aug. 18, 2015), aff’g No. A200 185 341 (Immig. Ct. N.Y. City

12   Dec. 13, 2013).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed both

15   the IJ’s and BIA’s decisions.       Yun-Zui Guan v. Gonzales, 432

16   F.3d 391, 394 (2d Cir. 2005).        The applicable standards of

17   review are well established.        See 8 U.S.C. § 1252(b)(4)(B);

18   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

19       For asylum applications like Gao’s, governed by the REAL

20   ID Act, the agency may, “[c]onsidering the totality of the

21   circumstances,” base a credibility finding on inconsistencies

22   and omissions in an applicant’s statements, “without regard to

23   whether”   those   inconsistencies    go   “to   the   heart   of   the
                                     2
1    applicant’s claim.”         8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

2    Lin, 534 F.3d at 163-64, 166 n.3.              “We defer . . . to an IJ’s

3    credibility determination unless, from the totality of the

4    circumstances, it is plain that no reasonable fact-finder could

5    make such an adverse credibility ruling.”                  Xiu Xia Lin, 534 F.3d

6    at   167.      As     discussed       below,    the    adverse       credibility

7    determination rests on substantial evidence.

8           The   agency      reasonably      relied       on     Gao’s   internally

9    inconsistent testimony concerning whether police in China were

10   seeking her whereabouts.             8 U.S.C. § 1158(b)(1)(B)(iii).           On

11   direct examination, Gao testified that only her family members

12   were aware of her Christian faith and that she feared returning

13   to China because, based on her aunt’s detention and what others

14   had told her, she would be persecuted for attending an

15   underground    church.          On   cross     examination,       however,    Gao

16   mentioned for the first time that the authorities had discovered

17   her name and address on religious materials she sent to her aunt

18   and then visited Gao’s parents’ home to warn that Gao would face

19   “big    trouble”    if    she   returned       to   China.        Because    this

20   inconsistency concerned an issue central to Gao’s alleged fear

21   of future persecution on account of her Christian faith, it

22   provides     substantial        evidence       to     support     the    adverse

23   credibility determination.              8 U.S.C. § 1158(b)(1)(B)(iii);
                                             3
1    Xiu Xia Lin, 534 F.3d at 167; cf. Xian Tuan Ye v. Dep’t of

2    Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A] material

3    inconsistency in an aspect of [an applicant’s] story that served

4    as an example of the very persecution from which he sought

5    asylum . . . afforded substantial evidence to support the

6    adverse credibility finding.”).

7        Nor was the agency compelled to accept Gao’s shifting

8    explanations for the inconsistency.     See Majidi v. Gonzales,

9    430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more than

10   offer a plausible explanation for his inconsistent statements

11   to secure relief; he must demonstrate that a reasonable

12   fact-finder would be compelled to credit his testimony.”

13   (quoting Zhou Yun Zhang v. INS, 386 F.3d 77, 76 (2d Cir. 2004))).

14   First, Gao explained that her parents waited until August 2011

15   to tell her about the police visit.     Second, when confronted

16   with the fact that this did not explain omitting the information

17   on direct, Gao gave a non-responsive answer that she feared

18   police would report her to family planning officials.     Third,

19   when pressed as to why she failed to mention the police visit

20   earlier, the record reflects a long pause after which Gao stated

21   that she did not know why she did not mention it before.     Gao

22   now proffers that, on direct examination, she was not asked her

23   about police activities in China following her aunt’s arrest.
                                     4
1    This additional explanation is not compelling because Gao was

2    specifically asked why she feared returning to China and failed

3    to mention the police visit.    See Majidi, 430 F.3d at 80.

4         The adverse credibility determination is further supported

5    by Gao’s internally inconsistent testimony concerning the

6    alleged police visit.   Gao initially revealed one visit, but

7    later said that police visited her parents’ house a second time.

8    When asked why she did not mention the second visit earlier,

9    she stated that the police were “just passing by [her] house”

10   whereas the first time they came to give a “severe warning.”

11   The IJ again reasonably concluded that this was not a compelling

12   explanation, and that the omission was significant because

13   police interest in Gao would bolster her claim of future harm.

14   See Majidi, 430 F.3d at 80.

15        Given the inconsistencies identified concerning the basis

16   for Gao’s fear of persecution in China it cannot be said “that

17   no   reasonable   fact-finder   could   make   such   an   adverse

18   credibility ruling.”    Xiu Xia Lin, 534 F.3d at 167.         That

19   finding is dispositive of asylum, withholding of removal, and

20   CAT relief because all forms of relief are based on the same

21   factual predicate.   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

22   Cir. 2006).

23        For the foregoing reasons, the petition for review is
                                     5
1   DENIED.    As we have completed our review, any stay of removal

2   that the Court previously granted in this petition is VACATED,

3   and any pending motion for a stay of removal in this petition

4   is DISMISSED as moot.    Any pending request for oral argument

5   in this petition is DENIED in accordance with Federal Rule of

6   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

7   34.1(b).

8                                 FOR THE COURT:
9                                 Catherine O’Hagan Wolfe, Clerk




                                    6
