Gao v. Barr

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.

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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.

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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.

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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

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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.

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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

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[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.

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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.

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