    09-4678-ag
    Gao v. Holder
                                                                                   BIA
                                                                          Balasquide, IJ
                                                                          A098 895 904
                         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 19 th day of January, two thousand eleven.

    PRESENT:
             REENA RAGGI,
             PETER W. HALL,
             GERARD E. LYNCH,
                 Circuit Judges.
    _______________________________________

    HE GAO, a.k.a. TAKANORI KIMURA,
             Petitioner,

                    v.                                     09-4678-ag
                                                           NAC
    ERIC H. HOLDER, JR., U.S. ATTORNEY
    GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Jed S. Wasserman, New York, New
                                  York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Carl H. McIntyre, Assistant
                                  Director; John J.W. Inkeles, Trial
                                  Attorney, Office of Immigration
                                  Litigation, Civil Division, United
                                  States Department of Justice,
                                  Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED in part and DISMISSED in part.

     Petitioner He Gao, a native and citizen of the People’s
Republic of China, seeks review of an October 21, 2009, order
of the BIA affirming the February 11, 2008, decision of
Immigration Judge (“IJ”) Javier Balasquide, denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re He Gao,
No. A098 895 904 (B.I.A. Oct. 21, 2009), aff’g No. A098 895
904 (Immig. Ct. N.Y. City Feb. 11, 2008).      We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.

     Under the circumstances of this case, we review both the
IJ’s and the BIA’s opinions. See Ming Xia Chen v. BIA, 435
F.3d 141, 144 (2d Cir. 2006).     The applicable standards of
review are well-established.    See 8 U.S.C. § 1252(b)(4)(B);
see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
2008).

     Substantial    evidence   supports    the   IJ’s adverse
credibility determination.      The evidence includes Gao’s
admission that he repeatedly testified falsely under oath in
order to avoid being removed to China, see Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir. 2007) (holding that in certain
circumstances “a single false document or a single instance of
false testimony may (if attributable to the petitioner) infect
the balance of the alien’s uncorroborated or unauthenticated
evidence”), and the inconsistency between Gao’s testimony and
that of his witness, 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 evidence of record . . ., and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim”). That is, Gao testified that Chinese
authorities were searching for him because he had harbored a
fugitive who practiced Falun Gong, but his witness testified
that authorities were searching for Gao because he possessed
or distributed files about Falun Gong.

                              2
     Because the agency reasonably determined that Gao was not
credible with respect to his claim of a well-founded fear of
persecution for having harbored a Falun Gong practitioner,
that determination necessarily precludes success on his claims
for asylum, withholding of removal, and CAT relief insofar as
they were based on that factual predicate.       We deny his
petition for review to that extent. See Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006). We lack jurisdiction to review
Gao’s unexhausted argument that he would be tortured based on
his illegal departure from China, and we dismiss his petition
for review to that extent. See Karaj v. Gonzales, 462 F.3d
113, 119 (2d Cir. 2006).

     For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED 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
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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