         09-5305-ag
         Gao v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A097 917 558
                          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 2 nd day of February, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                GERARD E. LYNCH,
10                   Circuit Judges.
11       ______________________________________
12
13       ZHO KUI GAO,
14                Petitioner,
15
16                       v.                                     09-5305-ag
17                                                              NAC
18       ERIC H. HOLDER, JR.,
19       UNITED STATES ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               David X. Feng, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Terri J. Scadron, Assistant
27                                     Director; Surell Brady, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, 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        Zho Kui Gao, a native and citizen of the People’s

6    Republic of China, seeks review of a November 30, 2009,

7    order of the BIA affirming the June 23, 2008, decision of

8    Immigration Judge (“IJ”) Barbara A. Nelson, which denied

9    Gao’s application for asylum, withholding of removal, and

10   relief under the Convention Against Torture (“CAT”).     In re

11   Zho Kui Gao, No. A097 917 558 (B.I.A. Nov. 30, 2009), aff’g

12   No. A097 917 558 (Immig. Ct. N.Y.C. June 23, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review the

16   decision of the IJ as supplemented by the BIA.   See Yan Chen

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

18   applicable standards of review are well-established.     See

19   8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

20   162, 165-67 (2d Cir. 2008) (per curiam). For asylum

21   applications governed by the REAL ID Act, the agency may,

22   considering the totality of the circumstances, base a


                                  2
1    credibility finding on an asylum applicant’s demeanor, the

2    plausibility of his account, or inconsistencies in his

3    statements, without regard to whether they go “to the heart

4    of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).

5        Contrary to Gao’s position, substantial evidence

6    supports the agency’s adverse credibility determination.

7    The agency reasonably relied on Gao’s inconsistencies and

8    omissions in arriving at its decision.    See Xiu Xia Lin, 534

9    F.3d at 166, 167.   As the IJ noted, Gao testified that he

10   had been a Christian since he was a child, but in his asylum

11   application, asserted that he became a Christian after

12   arriving in the United States.    Gao also testified that it

13   was important to him to attend church, yet evidence

14   indicated that, despite having lived in the United States

15   for over 11 years, Gao started attending church only two

16   months before the merits hearing.    In addition to these

17   consistencies regarding the basis of his claim, Gao

18   testified that he was permanently dismissed from school in

19   China in 1996, but stated in his asylum application that the

20   last time he attended school was in 1994.    Finally, Gao

21   testified that he was arrested by the Chinese authorities

22   and detained overnight in 1995 and that he had gone into



                                   3
1    hiding in China at the suggestion of his parents, but

2    omitted both of these incidents from his asylum application.

3    Given these inconsistencies and omissions, the agency’s

4    adverse credibility finding is supported by substantial

5    evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu

6    Xia Lin, 534 F.3d at 166, 167 (“We defer . . . to an IJ’s

7    credibility determination unless, from the totality of the

8    circumstances, it is plain that no reasonable fact-finder

9    could make such an adverse credibility ruling.”).     Finally,

10   the agency did not err in finding that Gao does not have a

11   well-founded fear of persecution if he is returned to China.

12   Gao’s claim of a well-founded fear of future persecution is

13   based on his alleged Christian practices while in the United

14   States.     But, because he was found not credible regarding

15   those practices, his claim must fail.

16       Gao also argues that the agency erred in affirming the

17   IJ’s decision not to admit late-submitted evidence.     This

18   argument is unavailing.     The IJ acted within her discretion

19   in excluding the items.     See Dedji v. Mukasey, 525 F.3d 187,

20   192 (2d Cir. 2008) (holding that IJs have discretion to

21   establish and enforce filing deadlines for submission of

22   documents).


                                     4
1        Because Gao’s asylum and withholding of removal claims

2    were based on the same factual predicate, the agency’s

3    adverse credibility determination was a proper basis for the

4    denial of both his asylum and withholding claims.    See Paul

5    v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).    We decline

6    to reach Gao’s CAT claim, as it was not sufficiently argued

7    in his brief.   See Yueqing Zhang v. Gonzales, 426 F.3d 540,

8    545 n.7 (2d Cir. 2005).

9        For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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