         10-4466-ag
         Gao v. Holder
                                                                                       BIA
                                                                                    Page, IJ
                                                                               A097 391 012
                          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 20th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSEPH M. MCLAUGHLIN,
 9                REENA RAGGI,
10                    Circuit Judges.
11       ______________________________________
12
13       HUIJUAN GAO,
14                Petitioner,
15
16                       v.                                     10-4466-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23
24       FOR PETITIONER:               Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Jamie M. Dowd, Senior
28                                     Litigation Counsel; Sabatino F. Leo,
29                                     Trial Attorney, Office of
30                                     Immigration Litigation, U.S.
31                                     Department of Justice, Washington
32                                     D.C.
33
 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 Huijuan Gao, a native and citizen of China,

 6   seek review of the October 20, 2010 decision of the BIA

 7   affirming the September 16, 2008 decision of Immigration

 8   Judge (“IJ”) Alan L. Page, denying Huijuan Gao’s application

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

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

11   A097 391 012 (B.I.A. Oct. 20, 2010), aff’g No. A097 391 012

12   (Immig. Ct. N.Y. City Sept. 16, 2008).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case, which we reference only to

15   explain our decision to deny the petition for review.

16       Under the circumstances of this case, we review the

17   IJ’s decision, as supplemented by the BIA, for substantial

18   evidence.    See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394

19   (2d Cir. 2005).   Where, as here, the asylum application

20   preceded passage of the REAL ID Act, an adverse credibility

21   determination informing the challenged decision must be

22   based on “specific, cogent” reasons that bear a “legitimate

23   nexus” to the finding.    See Dong Zhong Zheng v. Mukasey, 552

24   F.3d 277, 287 (2d Cir. 2009).

                                     2
 1       Substantial evidence supports the agency’s adverse

 2   credibility determination.    In finding the petitioner not

 3   credible, the agency reasonably found that there were

 4   inconsistencies in the record that went to the heart of the

 5   petitioner’s claim.     Specifically, the IJ detailed the

 6   discrepancies in the record as to when the petitioner’s

 7   abortion occurred and the length of her pregnancy at the

 8   time of the abortion.     See Li Hua Lin v. U.S. Dep’t of

 9   Justice, 453 F.3d 99, 109 (2d Cir. 2006).     The IJ was not

10   required to accept the petitioner’s unconvincing explanation

11   for these discrepancies.     See Majidi v. Gonzales, 430 F.3d

12   77, 80-81 (2d Cir. 2005).    Additionally, the BIA correctly

13   noted the absence of corroborating evidence to support the

14   petitioner’s claim that she had undergone a forced abortion

15   in China.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

16   Cir. 2007).

17       In addition, the agency reasonably relied in part on

18   the petitioner’s demeanor, which suggested that she was not

19   being “forthright” and was answering questions in an

20   “evasive” manner.     See Majidi, 430 F.3d at 81 n.1.   As we

21   have noted, “[w]e can be still more confident in our review

22   of observations about an applicant’s demeanor where, as

23   here, they are supported by specific examples of

24   inconsistent testimony.”     Li Hua Lin, 453 F.3d at 109.

                                     3
 1   Indeed, the record supports the IJ’s determination that the

 2   petitioner’s demeanor became evasive when she was asked to

 3   explain the discrepancy between her conflicting accounts of

 4   when her abortion occurred, and how long she had been

 5   pregnant at the time of her abortion.     See id.

 6       Because the adverse credibility determination was

 7   supported by substantial evidence, the denial of asylum,

 8   withholding of removal, and CAT relief was not in error

 9   because those claims were based on the same factual

10   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

11   2006).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
23




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