         13-2197
         Gao v. Lynch
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A094 813 685
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 3rd day of September, two thousand fifteen.
 5
 6       PRESENT:
 7
 8                ROSEMARY S. POOLER,
 9                BARRINGTON D. PARKER,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _____________________________________
13
14       YANG GAO,
15                      Petitioner,
16
17                      v.                                      13-2197
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Gerald Karikari, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Jennifer Paisner Williams,
28                                     Senior Litigation Counsel; Margaret
29                                     Kuehne Taylor, Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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

 4   is DENIED.

 5       Petitioner Yang Gao, a native and citizen of the

 6   People’s Republic of China, seeks review of a May 9, 2013,

 7   decision of the BIA affirming the May 13, 2011, decision of

 8   an Immigration Judge (“IJ”), which denied his application

 9   for asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Yang Gao, No.

11   A094 813 685 (B.I.A. May 9, 2013), aff’g No. A094 813 685

12   (Immig. Ct. N.Y.C. May 13, 2011).     We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA decision.     See Xue

17   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

18   Cir. 2005).     The applicable standards of review are well-

19   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21

22

23

                                     2
 1   I.   One-Year Bar to Asylum

 2        Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction

 3   to review the agency’s determination that an asylum

 4   application is untimely under § 1158(a)(2)(B).

 5   Notwithstanding these provisions, we retain jurisdiction to

 6   review “constitutional claims or questions of law.”     8

 7   U.S.C. § 1252(a)(2)(D).   While Gao raises an argument which

 8   may be construed as a question of law, namely that the

 9   agency applied too heavy a burden by requiring details of

10   his travel and corroborating evidence, this argument fails

11   as it was Gao’s burden to provide clear and convincing

12   evidence of his time of arrival.   Apart from that

13   allegation, Gao’s challenge is solely to the IJ’s fact

14   finding, which we do not have jurisdiction to review.       See

15   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

16   Cir. 2006).

17   II. Withholding of Removal and CAT

18        The BIA denied withholding of removal and CAT relief,

19   affirming the IJ’s adverse credibility ruling as to Gao’s

20   claims of past persecution and finding that Gao had not

21   satisfied his burden to show that he was more likely than

22   not to face future persecution or torture on account of his

23   Falun Gong practice in the United States.

                                   3
 1   A. Credibility

 2       “We defer. . . to an IJ’s credibility determination

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

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

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

 6   167 (2d Cir. 2008) (per curiam).

 7       In finding Gao not credible, the agency reasonably

 8   relied on his inconsistent testimony and omission of a

 9   relevant incident related to his claim of past persecution

10   from his asylum application.     See id. at 167. During his

11   merits hearing, Gao testified that police officers accused

12   him of practicing Zhong Gong when they arrested him, but in

13   his asylum application, he stated that they accused him of

14   practicing Falun Gong.    He also testified that the police

15   came to his house after he was released from custody, but

16   that fact was not included in his asylum application or a

17   letter written by his mother.       Under the REAL ID Act, the

18   agency properly relied on these inconsistencies as a basis

19   for the adverse credibility finding.       See 8 U.S.C. §§

20   1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at

21   167 (providing that an IJ may support an adverse credibility

22   determination with “any inconsistency or omission”).         In


                                     4
 1   addition, the omission goes to the heart of Gao’s claim, as

 2   it was the one incident that occurred after his alleged

 3   arrest in the five years before he left China and the only

 4   evidence of any continuing interest in him by the

 5   authorities.   Accordingly, the agency’s adverse credibility

 6   determination is supported by substantial evidence.   Xiu Xia

 7   Lin, 534 F.3d at 167.

 8   B. Future Persecution or Torture

 9       The IJ and the BIA credited Gao’s Falun Gong practice,

10   but concluded that he had not established that he would

11   likely be persecuted on that basis in China.   Because Gao

12   failed to demonstrate past persecution, he was not entitled

13   to a presumption of future persecution or torture and was

14   required to make an independent showing that he would likely

15   be subject to harm rising to the level of persecution if

16   returned to China.   8 C.F.R. §§ 1208.16(b)(2); 1208.17(a).

17   Accordingly, Gao was required to demonstrate either that he

18   would be singled out for persecution or torture or that

19   there exists a pattern or practice of persecution or torture

20   of Falun Gong practitioners.   Id.; see Jian Xing Huang v.

21   INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding that

22   absent solid support in the record for the petitioner’s

23   assertion that he would be persecuted, his fear was
                                    5
1    “speculative at best”).   Gao did not testify that he planned

2    to continue practicing Falun Gong in China and, considering

3    that he previously gave up his similar practice of Zhong

4    Gong, the agency did not err in finding that he failed to

5    meet his burden.

6        For the foregoing reasons, the petition for review is

7    DENIED.   As we have completed our review, the pending motion

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

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




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