10-2788-ag
Gong v. Holder
                                                                                BIA
                                                                           Nelson, IJ
                                                                        A088 775 825
                  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 17th day of November, two thousand eleven.
PRESENT:
         RALPH K. WINTER,
         REENA RAGGI,
         SUSAN L. CARNEY,
            Circuit Judges.
_______________________________________

HAI LIN GONG
         Petitioner,

                 v.                                     10-2788-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
______________________________________

FOR PETITIONER:                Ke-en Wang, New York, NY

FOR RESPONDENT:                Tony West, Assistant Attorney
                               General; Michelle G. Latour,
                               Assistant Director, Nairi S.
                               Gruzenski, Trial Attorney, Office of
                               Immigration Litigation, U.S.
                               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 DISMISSED in part and DENIED in part.

    Hai Lin Gong, a native and citizen of the People’s

Republic of China, seeks review of the June 17, 2010 order

of the BIA affirming the September 12, 2008, decision of

Immigration Judge (“IJ”) Barbara A. Nelson denying his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).     In re Hai Lin

Gong, No. A088 775 825 (B.I.A. June 17, 2010), aff’g No.

A088 775 825 (Immig. Ct. N.Y. City Sept. 12, 2008).     We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s opinions.   See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     The applicable

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

§ 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d

Cir. 2008).

    As an initial matter, we dismiss the petition for

review to the extent that Gong challenges the denial of his

application for asylum.   We do not have jurisdiction to

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review the agency’s pretermission of that application as

untimely because Gong has not raised any constitutional

claim or question of law regarding that ruling.    See 8

U.S.C. § 1158(a)(3) (providing that no court shall have

jurisdiction to review the agency’s finding that an asylum

application was untimely under 8 U.S.C. § 1158(a)(2)(B));

id. § 1252(a)(2)(D) (providing that courts of appeals retain

jurisdiction to review constitutional claims and questions

of law); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 328-29 (2d Cir. 2006) (holding that a question of law

is not implicated “when the petition for review essentially

disputes the correctness of an IJ’s fact-finding or the

wisdom of his exercise of discretion”).

    We deny the remainder of Gong’s petition.     The agency’s

adverse credibility determination is based on substantial

evidence given inconsistencies in Gong’s testimony and

inconsistencies between his testimony and his written

application, as well as the IJ’s demeanor finding.    See

8 U.S.C. § 1158(b)(1)(B)(iii) (providing that an adverse

credibility determination may be based on “the consistency

between the applicant’s or witness’s written and oral

statements . . ., the internal consistency of each such

statement, the consistency of such statements with other

                             3
evidence of record . . ., and any inaccuracies or falsehoods

in such statements, without regard to whether an

inconsistency . . . goes to the heart of the applicant’s

claim”).     As the agency found, Gong’s written application

indicated that in China he worked as a construction worker

from 1995 to 2005, and Gong testified on direct examination

that he worked as a construction worker and that he only

reached a level of education equivalent to the ninth grade

in the United States.     But he testified on cross-examination

that he worked as a school principal.     See 8 U.S.C.

§ 1158(b)(1)(B)(iii).     The agency reasonably relied on this

inconsistency because Gong’s explanation – that he did not

include his work as a school principal on his written

application because a legal assistant instructed him to list

only what was contained in his corroborating documents and

he did not have documentation of his employment as a school

principal – did not address why when he was originally asked

about his employment in China he testified that he was a

construction worker and did not mention that he was a school

principal.     See Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d

Cir. 2005) (holding that the agency need not credit an

applicant’s explanations for inconsistent testimony unless

those explanations would compel a reasonable fact-finder to

do so).

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    Given this inconsistency, in conjunction with the IJ’s

demeanor finding that Gong was hesitant and unresponsive, to

which we give “particular deference,” and which Gong does

not challenge, see Dong Gao v. B.I.A., 482 F.3d 122, 126–27

(2d Cir. 2007), the agency’s adverse credibility

determination is supported by substantial evidence, see 8

U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

F.3d 162, 167 (2d Cir. 2008).       Thus, the agency properly

denied withholding of removal and CAT relief.       See Majidi,

430 F.3d at 81–82 (concluding that petitioner failed to

establish, inter alia, eligibility for withholding of

removal because substantial evidence supported the agency’s

adverse credibility finding); Paul v. Gonzales, 444 F.3d

148, 155-57 (2d Cir. 2006) (noting that when the same

factual assertions are needed for asylum, withholding of

removal, and CAT relief, an adverse credibility finding

regarding those assertions forecloses all forms of relief).

    For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part.       As we have completed

our review, any stay of removal that the Court previously

granted in this petition is VACATED, and 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

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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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