Gong v. Holder , 440 F. App'x 41 ( 2011 )

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
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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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