18-358
Gao v. Barr


                                    In the
                United States Court of Appeals
                          for the Second Circuit

                              AUGUST TERM 2019

                                 No. 18-358-ag

                                  LIKAI GAO
                                  Petitioner,

                                       v.

              WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
                                 Respondent.




                 On Petition for Review of a Final Order of the
                        Board of Immigration Appeals



                           ARGUED: MARCH 9, 2020
                           DECIDED: JULY 28, 2020

                                            _____

Before: RAGGI, LOHIER, and MENASHI, Circuit Judges.
                                    _____
      On a petition for review of a Board of Immigration Appeals
decision upholding an order of removal, petitioner challenges the
denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture.                 Petitioner
specifically faults the agency’s determination that his applications
were not supported by credible evidence. Petitioner maintains that
he sufficiently explained inconsistencies in his testimony to preclude
those inconsistencies from providing substantial evidence of adverse
credibility.

      PETITION FOR REVIEW DENIED.

                              ______________

               WEI GU, Law Offices of Wei Gu, Albertson, New York, for
               Petitioner.

               JOHN D. WILLIAMS, Trial Attorney, Office of Immigration
               Litigation (Russell J. E. Verby, Senior Litigation Counsel,
               Office of Immigration Litigation, on the brief), for Ethan P.
               Davis, Acting Assistant Attorney General, Civil Division,
               United States Department of Justice, Washington, D.C,
               for Respondent.



REENA RAGGI, Circuit Judge:

      Petitioner Likai Gao, a citizen of the People’s Republic of China,
seeks review of a Board of Immigration Appeals (“BIA”) decision
affirming an immigration judge’s (“IJ”) order of removal. See In re
Likai Gao, No. A 206 289 828 (B.I.A. Jan. 19, 2018), aff’g No. A 206 289

                                      2
828 (Immig. Ct. N.Y.C. Dec. 20, 2016). Gao submits that the agency
should have granted him relief from removal—whether in the form
of asylum, withholding of removal, or protection under the
Convention Against Torture (“CAT”)—because he faces religious
persecution if removed to China. He argues that the agency’s reliance
on an adverse credibility determination to deny him relief from
removal was error because “[a]ll . . . areas” of evidentiary
inconsistency “ha[d] been explained by [him] and can be reasonably
reconciled with the information in the record.” Pet’r Br. at 11; see id.
at 14. Because that argument fails on the merits, we deny Gao’s
petition for review, leaving the agency free to enforce its order of
removal.1

   I.        Background

        A.     Gao Arrives in the United States and Overstays His
               Visa

        Leaving behind a wife and two children in China, Gao entered
the United States on September 21, 2013.                   Possessed of a non-
immigrant C1 transit visa, Gao was authorized to stay in this country
until October 19, 2013. Instead of departing by that date, however,
Gao remained in the United States, and on January 13, 2014—three
months after his visa expired—filed applications for asylum,

        1 At oral argument, Gao’s counsel seemingly switched course, arguing not
that “[a]ll” inconsistencies “ha[d] been explained,” Pet’r Br. at 11, but, rather, that
the IJ had not afforded his client an opportunity to explain certain inconsistencies.
It is well established that arguments raised for the first time at oral argument are
deemed “waived.” United States v. Ramos, 677 F.3d 124, 129 n.4 (2d Cir. 2012).
Thus, our focus in this opinion is on the arguments made in Gao’s brief.

                                          3
withholding of removal, and CAT relief. 2 Late the following year, on
November 5, 2015, the Department of Homeland Security initiated
removal proceedings against Gao under 8 U.S.C. § 1227(a)(1)(B),
charging him with being in the country without authorization.

        B.      Immigration Hearing

                1.      Testimonial Evidence

        On April 19, 2016, Gao appeared before an IJ and, through
counsel, conceded removability. The IJ scheduled a hearing for July
28, 2016, on Gao’s applications for relief from removal.

        At the hearing, Gao, testifying with the assistance of a
Mandarin interpreter, explained that he feared that, in China,
government officials would persecute and torture him for practicing
his Christian religion. Gao testified that this fear was well founded

        2To secure asylum, an alien must demonstrate that he is a “refugee,” i.e., a
person unable or unwilling to return to his home country “because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion . . . .” 8 U.S.C.
§ 1101(a)(42)(A); see id. § 1158(b); 8 C.F.R. § 1208.13(a); Y.C. v. Holder, 741 F.3d 324,
332 (2d Cir. 2013).

        To be granted withholding of removal, an alien bears the heavier burden
of demonstrating a clear probability of persecution on one of the aforementioned
protected grounds. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b); Scarlett v.
Barr, 957 F.3d 316, 327–28 (2d Cir. 2020).

       To qualify for CAT relief, an alien must show that it is more likely than not
that upon return to the country of removal, he will be subjected to “torture,” “an
extreme form of cruel and inhuman treatment.” 8 C.F.R. § 1208.18(a)(2); see id.
§§ 1208.16(c)(2), 1208.17(a); Scarlett v. Barr, 957 F.3d at 334.

                                           4
because he had previously experienced religious persecution in May
2009. See 8 C.F.R. § 1208.13(b)(1); Mei Fun Wong v. Holder, 633 F.3d 64,
68 (2d Cir. 2011) (“A showing of past persecution gives rise to a
rebuttable     presumption       of   a       well-founded   fear    of   future
persecution.”).

       In support of his claim of past persecution, Gao testified that he
was introduced to Christianity sometime in 2005 when a friend
invited him to a church gathering some distance from his Gaocheng
home. Thereafter, Gao sporadically attended services at the church
as his schedule permitted. Sometime in 2008, however, Gao stopped
going to the church and, instead, hosted Bible study gatherings in his
home for family and friends.

       Gao testified that it was during such a gathering on May 10,
2009, that Chinese police forcibly entered his home, accused Gao and
the seven or eight friends in attendance of conducting cult activities,
arrested all of them, and transported them to the local police station. 3
Gao stated that, at the station, he was interrogated and beaten. The
next day, Gao was transferred to a detention facility, where he
remained incarcerated until November 11, 2009.

       Following his release and for the four years until his 2013
departure to the United States, Gao neither attended nor hosted any




       3Gao testified that his family members also generally participated in Bible
study gatherings at their home, but they were all away on May 10, 2009, and thus
avoided arrest.

                                          5
religious gatherings for fear of arrest. From time to time, police
officers visited Gao’s home and warned him against such activities.

      After his September 2013 arrival in the United States, Gao
settled in Flushing, Queens. In December of that same year, he began
attending the New York New Day Church, headed by Presbyterian
minister Jai Hyuck Kwak. Pastor Kwak, whose first language was
Korean but who testified in English, reported baptizing Gao in
January 2014 and seeing him regularly attend the church’s Sunday
services.

             2.    Adverse Credibility Determination

      In denying Gao relief from removal, the IJ found his testimony
not to be credible based on both perceived inconsistencies and suspect
demeanor.

      The IJ identified the following inconsistencies:

      (1) Gao testified that he had been hosting Christian gatherings
at his home for a year before his May 2009 arrest, but he also testified
that such gatherings started in December 2008, which was five
months before the arrest;

      (2) Gao testified to two reasons why he stopped attending
church and started hosting Christian gatherings in his home—the
distance of the church location from his home, and the church’s
discussion of Communist policy—but he made no mention of either
reason in his earlier written statement, there professing that he began



                                   6
holding home gatherings as part of a “mission” to help “thousands
[of] people bec[o]me Christian,” Admin. R. at 118;

       (3) Gao testified that more than ten police officers surrounded
his house at the time of his arrest, but he made no mention of either
the number of officers nor their surrounding the house in his written
statement, there stating that they stormed into the premises; 4

       (4) Gao testified that he was interrogated at the police station
by four officers, but his written statement reported two police
interrogators;

       (5) Gao testified that he told police interrogators that the
government protected freedom of speech, but in his written
statement, he reported invoking freedom of religion; and

       (6) Gao testified that he was held in detention for five months,
but he also testified that he was released on November 11, 2009, which
was six months after his arrest.

       In finding Gao’s credibility further undermined by his
demeanor, the IJ observed that Gao was sometimes not responsive to
direct questioning. Specifically, when asked questions that went




       4  The IJ’s characterization was not entirely accurate. Gao did not testify to
officers surrounding his house. Rather, he stated that “ten plus” officers forcibly
entered his house and surrounded the persons inside. Admin. R. at 67. For
reasons explained infra at 17 n.10, we do not think the error warrants any relief
from this court.

                                         7
outside the four corners of his written statement, Gao had difficulty
responding.

       The IJ concluded that corroborative evidence did not
rehabilitate Gao’s credibility. The IJ explained that statements from
Gao’s wife and a fellow church member about the May 10, 2009
arrests warranted minimal weight because the authors were
interested parties who were not available for cross-examination. 5
Meanwhile, the IJ found Pastor Kwak’s testimony not to be credible,
noting that he testified inconsistently about speaking with Gao,
initially stating that he had never spoken to him and subsequently
stating that he had never spoken to him about his immigration status.
Also, letters signed by Pastor Kwak were inconsistent in reporting
when Gao joined the New Day Church, with a 2014 letter dating Gao’s
membership to December 29, 2013, and a 2016 letter dating that
membership to December 15, 2013.

              3.     Denial of Relief from Removal

       Having found Gao not to have credibly established past
persecution or a well-founded fear of future persecution, the IJ
concluded that he did not qualify for asylum or withholding of
removal. The IJ acknowledged that an adverse credibility finding
does not necessarily foreclose CAT relief, which may be supported
through objective evidence alone. See Xiao Ji Chen v. U.S. Dep’t of


       5Gao’s wife also appears to have had no direct knowledge of the May 10,
2009 events recounted in her letter because, according to Gao, members of his
family were all away on that date and, thus, avoided arrest. See supra at 5 n.3.

                                       8
Justice, 434 F.3d 144, 163 & n.18 (2d Cir. 2006). Nevertheless, the IJ
concluded that Gao failed to qualify for CAT relief because he
adduced no such objective evidence.

       C.      BIA Appeal

       In appealing to the BIA, Gao effectively acknowledged that all
three of his claims for relief from removal depended on the credibility
of his testimony. The BIA affirmed the IJ decision, identifying no clear
error in the challenged adverse credibility finding. Insofar as Gao
faulted the IJ for failing to provide him with an opportunity to explain
certain inconsistencies, the BIA concluded that no such opportunity
was required because the inconsistencies were clear from the record. 6

       D.      Petition for Review

       Gao timely petitioned this court for review, arguing that he
credibly established his claims for relief from removal. Significantly,
his brief on appeal does not challenge the IJ’s adverse demeanor
finding.     Nor does it argue that Gao was denied an adequate


       6  See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005) (holding that IJ may
find asylum applicant not credible based on inconsistency in his account affording
substantial evidence “without soliciting from the applicant an explanation for the
inconsistency”). A dissenting Board member thought Gao should have been
afforded an opportunity for explanation because the identified discrepancies were
not “glaring or dramatic.” Admin. R. at 4; see Ming Shi Xue v. Bd. of Immigration
Appeals, 439 F.3d 111, 125 (2d Cir. 2006) (construing Majidi to place burden on alien
to explain contradictions clear on their face, but holding that IJ should afford alien
opportunity to reconcile contradictions that are not “self-evident”). The dissenting
member further faulted the IJ for failing fully to consider the explanations that Gao
did provide.

                                          9
opportunity to explain evidentiary inconsistencies. 7 Rather, Gao’s
brief offers a single argument for why the IJ erred in not finding him
credible, i.e., Gao, in fact, reasonably explained “[a]ll” identified
inconsistencies. Pet’r Br. at 11.

   II.        DISCUSSION

         A.     Standard of Review

         Because Gao petitions for review of a BIA decision that affirms
an IJ decision without rejecting any part of its reasoning, this court
properly considers both decisions in deciding whether to grant the
requested review. See, e.g., Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166
(2d Cir. 2008). Where, as here, a petition for review challenges an
adverse credibility finding, the alien bears a particularly heavy
burden because we review such a factual determination “under the
substantial evidence standard,” which—absent some legal error—
requires us to “defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.” Hong Fei
Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (internal quotation marks
omitted); see 8 U.S.C. § 1252(b)(4)(B). In applying that standard, we
are mindful that the law affords an alien seeking relief from removal
“no presumption of credibility.”               8 U.S.C. § 1158(b)(1)(B)(iii).


         7Challenges not argued by a party in his appellate brief, including
challenges thereafter made at oral argument, are deemed abandoned and need not
be addressed by this court. See Alom v. Whitaker, 910 F.3d 708, 709 (2d Cir. 2018);
United States v. Ramos, 677 F.3d at 129 n.4; Norton v. Sam’s Club, 145 F.3d 114, 117
(2d Cir. 1998).

                                        10
Moreover, an agency assessing credibility may itself properly
consider the totality of the circumstances, including the candor and
responsiveness of the applicant, the inherent plausibility of his
account, his demeanor while testifying, and the consistency of his
account, both internally and as compared with other evidence,
“without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.” Id.; see Xiu Xia
Lin v. Mukasey, 534 F.3d at 167 (stating that for cases filed after May
11, 2005 effective date of REAL ID Act, “an IJ may rely on any
inconsistency or omission in making an adverse credibility
determination as long as the ‘totality of the circumstances’ establishes
that an asylum applicant is not credible” (emphasis in original)
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii))).

      B.     The Adverse Credibility Determination Is Supported
             by Substantial Evidence

             1.     Inconsistencies

      Gao asserts that the agency erred in finding his testimony not
to be credible because “[a]ll . . . areas” of identified inconsistency
“ha[d] been explained by [him] and can be reasonably reconciled with
the information in the record.” Pet’r Br. at 11. He faults the IJ for
“fail[ing] to accept reasonable explanation of issues in the case, and
overly rel[ying] on . . . speculations.” Id. at 14. The argument fails
because, as this court has explained, a petitioner “must do more than
offer a plausible explanation for his inconsistent statements to secure
relief; he must demonstrate that a reasonable fact-finder would be
compelled to credit his testimony.” Hui Pan v. Holder, 737 F.3d 921, 930

                                    11
(2d Cir. 2013) (quoting Majidi v. Gonzales, 430 F.3d 77, 80–81 (2d Cir.
2005) (emphasis in original)). Gao cannot make that showing here,
particularly when the inconsistencies—which we are obliged to
discuss individually—are considered as a whole. 8

                      a.      Length of Time Gao Hosted Religious
                              Gatherings at Home Before Arrest

       Asked on direct examination if he remembered “approximately
when [he] stopped attending religious activities at the church and
started attending [home] gatherings,” Gao replied “[a]round . . .
December of 2008.” Admin. R. at 64. That would have been some five
months before his May 10, 2009 arrest.                A few questions later,
however, Gao testified that he had been conducting religious
gatherings at his home “for approximately a year” prior to his arrest.
Id. In his brief to this court, Gao concedes that “this seems like a clear
contradiction because the numbers don’t add up.” Pet’r Br. at 11.
Nevertheless, he argues that there is no contradiction if one construes
the first question to ask when both parts of the conjunctive sentence
were satisfied, i.e., when Gao was both hosting religious gatherings at
his home and no longer going to church. Gao hypothesizes that he
“could’ve” started holding family gatherings while still attending the
original church. Id. at 12. In other words, he “could’ve” hosted home
gatherings for seven months while still attending church services,



       8 In Borovikova v. United States Department of Justice, 435 F.3d 151, 156–57,
159–60 (2d Cir. 2006), this court recognized that even a single inconsistency might
preclude an alien from showing that an IJ was compelled to find him credible.
Multiple inconsistencies would so preclude even more forcefully.

                                        12
foregoing the latter to participate exclusively in the former only in
December 2008. Id.

      The argument is not compelling for several reasons. First, it is
based on hypothesis, i.e., explanations that Gao could have given the
IJ, rather than any explanation that he in fact gave. The omission is
significant because Gao himself acknowledges that the contradiction
“seems . . . clear” on the face of his testimony. Id. at 11. Thus, the
burden of explanation fell squarely on him. See Majidi v. Gonzales, 430
F.3d at 81. In the absence of any record explanation proffered to the
IJ, we cannot conclude that the agency was compelled to reconcile the
contradiction in the way here urged by Gao. See id. (observing that
where alien failed to explain material inconsistency in facts
supporting asylum claim, agency was not “compelled” to construe
facts in favorable light urged to reviewing court).

      Second, even if Gao had proffered his hypothesized
explanation to the IJ, he can hardly show that the IJ would have been
compelled to accept it. While compound questions can sometimes
confuse, if the “stop” and “start” referenced in the question in fact
occurred on different dates—particularly dates separated by seven
months as Gao now suggests—a factfinder might reasonably have
expected Gao to have said so. In any event, Gao’s claim that he could
have started conducting home services a year before his May 2009
arrest while continuing to attend church services through December
2008 cannot be deemed compelling because it is belied by Gao’s
written statement in support of relief from removal. In a section of
the statement making no mention of church attendance (and thus

                                  13
posing no risk of misunderstanding), Gao quite clearly states that he
“started” to host religious gatherings in his home in December 2008,
and even specifies the exact starting date: December 12, 2008. Admin.
R. at 118 (“[O]n December 12, [2008], I started to organize[] several
farmers, who would like to believe in God, to come to my home and
stud[y the] Bible.”).

      On this record, we identify no error either in the agency’s
determination that Gao testified inconsistently as to the length of time
he held religious services in his home before his May 10, 2009 arrest,
or in its reliance on that inconsistency in assessing credibility.

                    b.      Reasons for Religious Gatherings at Home

      On direct examination, Gao was asked, “Why was it that the
first [religious] gathering you attended was in a church, but the
gathering you were arrested at was in a home?” Id. at 62. Gao said
there were “numbers of reasons,” and proceeded to detail two: (1)
“the distance of the church location” from his home, and (2) the
church’s focus on “the Communist party’s policy,” by contrast to the
home gathering’s focus on “just study reading the Bible.” Id. Gao
had mentioned neither of these reasons in his written statement
seeking relief from removal. There, he stated a single, more ambitious
reason for hosting home gatherings: to help convert “thousands” to
Christianity. Id. at 118.

      Gao argues that these statements do not manifest inconsistency
because “many” motives might have informed his decision to host
religious gatherings in his home rather than attend a church. Pet’r Br.

                                   14
at 13 (“The ultimate goal might be to convert as many as he can to
believe in God, but practically speaking, it is just much simpl[er] to
stay at home and tailor his gatherings to his own needs.”). Indeed, he
stated as much in referencing “numbers of reasons.” Admin. R. at 62.
It is certainly plausible for multiple motives to inform human actions.
But we do not think Gao’s multiple-motives explanation compelled
the agency to deem Gao credible. See, e.g., Borovikova v. U.S. Dep’t of
Justice, 435 F.3d 151, 158 (2d Cir. 2006) (distinguishing what is
arguably persuasive from what is compelling). A factfinder could
reasonably think that, at a hearing to explore an alien’s professed fear
of religious persecution, it is more than curious that the alien would
first reference a non-religious motive of convenience, i.e., the distance
of the church from his home, while failing entirely to mention a more
profound, entirely religious motive such as a large-scale conversion
mission. The omission is all the more suspect because the latter
motive is the only one Gao reported in his written statement for relief.
In sum, Gao’s multiple-motives explanation, even if plausible, would
not compel the agency to excuse the identified inconsistency or to
ignore it in assessing credibility.

                    c.     Arrest Details

      On direct examination, Gao testified that in the police station
interrogation that followed his arrest, four officers were present, “two
in the front, two in the back.” Admin. R. at 69. Gao stated that it was
when he told the officers that the government afforded him “freedom
of speech” that one of them slapped Gao, while the other struck him
with his police baton. Id. In recounting the same interrogation in his

                                      15
written statement, Gao mentioned only two police officers, sitting on
chairs.    He there stated that when he told the officers that the
government allows “freedom of religion,” one of the two stood up
and beat Gao. Id. at 119. Gao argues that the IJ erred in identifying
inconsistency as to the number of interrogating officers because his
written statement “never stated exactly how many police officers
were present”; it only stated that there were two officers seated. Pet’r
Br. at 13. Gao further argues that the inconsistency between his
invocation of “freedom of speech” and “freedom of religion” should
not have borne on his credibility because it was an understandable
“mix-up” on his part as both rights are “protected the same way.” Id.
at 13–14. 9

       At the outset, we note that Gao never offered either explanation
to the IJ. To the extent the numbers discrepancy might not have been
clear to Gao, we need not here decide whether responsibility for the
failure of explanation rests with him or with the agency. See supra at
9 n.6. Even assuming the latter, we can confidently conclude that, had
the IJ heard the explanation Gao now proffers, she would still have
reached the same adverse credibility determination based on the
totality      of   other   inconsistencies,    the    negative     demeanor
determination, and the absence of corroboration.              See Tu Lin v.
Gonzales, 446 F.3d 395, 403 (2d Cir. 2006) (denying petition for review
where, despite some erroneous findings, “adverse credibility


       9 The IJ did not identify inconsistency in Gao’s account of the type of
physical force used against him or the number of officers who administered such
force.

                                      16
determination is supported by substantial evidence” and “IJ would
have reached the same conclusions without reliance on the erroneous
findings”). 10

       As for the invocation of rights precipitating physical abuse, Gao
plainly bore the burden of explaining the clear discrepancy between
his written statements and hearing testimony. See Majidi v. Gonzales,
430 F.3d at 81. Insofar as Gao submits that a “mix-up” between
freedom of speech and freedom of religion does not implicate his
credibility because both are protected equally, the agency was not
compelled so to find. Whatever protections China may or may not
afford freedom of speech and freedom of religion, a reasonable
factfinder could think it unlikely that in an immigration proceeding
whose singular purpose was to assess a claimed fear of future religious
persecution, a credible alien, who had already stated that it was his
invocation of freedom of religion that precipitated a beating, would
be so “mixed up” as to testify that the right invoked was freedom of
speech. In short, Gao’s “mix-up” explanation would not compel the
IJ to excuse the rights discrepancy in assessing Gao’s credibility.

                      d.       Period of Incarceration

       On direct examination, Gao testified that, following his arrest,
he spent “five months” in a detention facility. Admin. R. at 69.
Subsequently, however, he testified that he was “released on
November 11, 2009,” id. at 71, which was six months after his arrest.


       10 The same conclusion obtains with respect to the IJ’s mischaracterization
of the arresting officers’ surrounding actions, noted supra at 7 n.4.

                                       17
On cross-examination, Gao acknowledged the inconsistency but
explained that he had been sentenced to five months’ incarceration,
and, on release, given paperwork stating that he was detained for that
period. Thus, he testified to that term of confinement even though
“[t]he truth” is that he was confined for six months. Id. at 76. Before
this court, Gao argues that the IJ should have accepted this
explanation and not used the discrepancy to question his credibility.
See Pet’r Br. at 14 (“The discrepancy is not caused by the petitioner
and therefore, he should not bear the burden of those mistakes caused
by the detention center.”). In fact, the agency was not compelled to
excuse the discrepancy in assessing credibility.

       Gao’s explanation effectively acknowledges that he knowingly
testified falsely when his attorney asked him, “How long were you at
the detention facility?” and Gao replied, “For five months.” Admin.
R. at 69. The question was unambiguous and Gao’s answer—based
on his professed November 11, 2009 release date—was false. A court
assessing credibility may always consider the fact that a witness has
lied under oath. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)
(explaining that because “petitioner’s credibility is almost always
crucial” in immigration context, “single instance of false testimony
may . . . infect the balance of the alien’s uncorroborated or
unauthenticated evidence”). Even where, as here, the witness seems
to have had little to gain from the lie, the court may consider the
falsehood as evidence that the witness had little regard for his oath to
tell the truth. See generally id. (reiterating falsus in uno, falsus in omnibus
principle); 8 U.S.C. § 1158(b)(1)(B)(iii) (allowing factfinder to rely on
“any inaccuracies or falsehoods” in statements made by alien,

                                      18
“without regard to whether . . . falsehood goes to the heart of the
applicant’s claim” (emphasis added)).

       Nor is a different conclusion compelled by Gao’s claim that
detention authorities never explained why he was held in custody for
longer than his pronounced sentence.           This misperceives the
inconsistency relevant to Gao’s credibility. It is not the discrepancy
between Gao’s sentence and the time he actually served. Rather, it is
the discrepancy between the actual length of Gao’s detention and the
length of time he testified to being detained. The person responsible
for that inconsistency is Gao, and the IJ was not compelled to accept
his explanation for testifying falsely, much less required to excuse the
falsehood in assessing Gao’s credibility. See Majidi v. Gonzales, 430
F.3d at 80–81.

      In sum, Gao’s explanations—whether timely or belated—for
clear inconsistencies in his testimony do not compel a factfinder to
excuse the inconsistencies or to find Gao credible.        Rather, the
inconsistencies, particularly when considered as a whole, provided
substantial evidence to support the agency’s finding that Gao did not
credibly establish his claims for relief from removal.

             2.    Demeanor

      The agency’s adverse credibility determination is further
supported by the IJ’s negative demeanor assessment. Specifically, the
IJ found that Gao was sometimes “non-responsive” to questions, even
on direct examination. Admin. R. at 36. She observed that when
questions were asked that “went outside the four corners of his

                                  19
[written] statement,” Gao “had difficulty providing responses.” Id.
Such observations can raise concerns that a witness’s testimony is
based more on a script than on actual experience. See Majidi v.
Gonzales, 430 F.3d at 81 n.1 (explaining IJ’s “unique advantage” in
assessing credibility, including discerning whether applicant’s
testimony amounts to attempt to recall “script” (internal quotation
marks omitted)). Thus, the IJ acted well within her discretion in
relying on these demeanor observations in deciding not to credit
Gao’s testimony. As this court has recognized, it is precisely because
of the “IJ’s ability to observe the witness’s demeanor” that she is in
the “best position to evaluate . . . credibility.” Jin Chen v. U.S. Dep’t of
Justice, 426 F.3d 104, 113 (2d Cir. 2005).                 Moreover, because
“[d]emeanor is virtually always evaluated subjectively and
intuitively,” we accord an IJ “great deference on this score.” Tu Lin v.
Gonzales, 446 F.3d at 400.

       In sum, the IJ’s unchallenged negative demeanor finding
reinforces the conclusion that the agency’s adverse credibility
determination is supported by substantial evidence.

               3.     Corroborating Evidence

       The IJ found, and the BIA agreed, that Gao’s corroborative
evidence did not assuage the credibility concerns arising from his
inconsistent statements and evasive demeanor. 11                 Gao does not


       11 The REAL ID Act affords factfinders considerable flexibility in requiring
corroborating evidence, even for credible testimony.               See 8 U.S.C.
§ 1158(b)(1)(B)(ii).

                                        20
meaningfully challenge this conclusion. 12 Nor could he successfully
do so.

         Insofar as Gao offered letters from his wife and from a person
arrested with him on May 10, 2009, the IJ acted within her discretion
in according them little weight because the declarants (particularly
Gao’s wife) were interested parties and neither was available for
cross-examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
(upholding agency decision to give little weight to wife’s letter,
observing that court “defer[s] to the agency’s determination of the
weight afforded to an alien’s documentary evidence”). Meanwhile,
the testimony of Pastor Kwak pertained only to Gao’s practice of
Christianity in the United States and, thus, could not corroborate
Gao’s inconsistent account of past persecution in China.13

   III.       Conclusion

         In sum, we identify no error in the denial of Gao’s claims for
asylum, withholding of removal, and CAT relief.                             In the
circumstances of this case, all three claims depended on Gao’s


         12In his brief, he offers only a conclusory statement that he “submitted
sufficient documents” to support his claims for relief from removal. Pet’r Br. at 14;
see Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (explaining that
argument, to which petitioner devoted “single conclusory sentence,” was
abandoned).

         13To the extent the IJ decided not to credit Pastor Kwak about Gao’s
religious practice in the United States, that conclusion finds support in statements
made by the pastor in two letters inconsistently reporting the date Gao joined the
New Day Church as December 15, 2013, and December 29, 2013. See supra at 8.

                                         21
credibility. The agency’s adverse credibility finding was supported
by substantial evidence consisting of numerous testimonial
inconsistencies and Gao’s evasive demeanor. Gao’s argument that he
satisfactorily explained the inconsistencies fails because the
explanations would not compel a reasonable factfinder to excuse the
inconsistencies or credit Gao’s testimony.

      Accordingly, we DENY the petition for review.




                                 22
