Yan Gao v. Mukasey
Yan Gao v. Mukasey
Opinion of the Court
SUMMARY ORDER
Yan Gao, a native and citizen of the People’s Republic of China, seeks review of a June 1, 2007 order of the BIA affirming the May 11, 2005 decision of Immigration Judge (“IJ”) Philip Morace, which
As an initial matter, contrary to the government’s argument, we have jurisdiction to review Gao’s challenge to the IJ’s adverse-credibility determination. While we “may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1), we do not limit a petitioner “to the exact contours of his argument below” in determining whether he exhausted the issue where, as here, the issue raised before us is a “specific, subsidiary legal argumente ]” or “an extension of [an] argument ... raised directly before the BIA.” Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (quoting Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005) (internal quotation marks and citation omitted)).
Here, Gao argued to the BIA that the IJ’s adverse-credibility decision was not supported by substantial evidence and specifically challenged the IJ’s findings with respect to the implausibility of and material omissions in Gao’s testimony. Moreover, the BIA reviewed the IJ’s adverse-credibility finding and explicitly adopted and affirmed that determination. As such, we may review Gao’s challenge to the IJ’s adverse-credibility finding, but we deem waived any specific challenge to the IJ’s reasoning not raised in his brief to this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir. 2005).
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings, including adverse-credibility determinations, under the substantial-evidence standard. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept of Justice, 494 F.3d 296, 305 (2d Cir. 2007).
Here, we find that substantial evidence supports the agency’s adverse-credibility determination. Gao’s omission from his asylum application, credible-fear interview, and direct testimony of the significant fact that his father was arrested and detained for three months for helping Gao evade arrest from family-planning officials was material to his claim and substantial evidence to support the IJ’s adverse-credibility finding. See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003). Indeed, Gao actually indicated in his asylum application that none of his family members had ever been arrested. Gao’s explanation that he was in a “bad mood” when he filled out that application is not an explanation that any reasonable fact finder would be compelled to accept, nor do we find anything ambiguous or confusing about the question on the application. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Moreover, in his counseled brief before this Court, Gao does not challenge the IJ’s finding that it was implausible that he was able to escape the arrest attempts of five government officials, or the IJ’s finding that he failed to submit sufficient evidence corroborating his claims. Accordingly, we deem any such arguments waived. See Yueqing Zhang, 426 F.3d at 542 n. 1.
Ultimately, the IJ’s adverse-credibility determination is supported by substantial evidence. See Zhou Yun Zhang, 386 F.3d
For the foregoing reasons, the petition for review is DENIED. Chief Judge Jacobs declines to review (for lack of unexhaustion) some of Gao’s other challenges to the adverse credibility finding; in other respects, Chief Judge Jacobs concurs in the outcome.
Reference
- Full Case Name
- YAN GAO v. Michael B. MUKASEY, United States Attorney General
- Status
- Published