Asghar v. Sessions , 708 F. App'x 34 ( 2018 )

16-3261
Asghar v. Sessions
BIA
Gordon-Uruakpa, IJ
A077 643 048
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 9th day of January, two thousand eighteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 ALI ASGHAR,
14 Petitioner,
15
16 v. 16-3261
17 NAC
18 JEFFERSON B. SESSIONS, III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Usman B. Ahmad, Long Island City,
24 NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; John S. Hogan,
28 Assistant Director; Lindsay
29 Corliss, Trial Attorney, Office of
30
31
1 Immigration Litigation, U.S.
2 Department of Justice, Washington,
3 DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Ali Asghar, a native and citizen of Pakistan,
10 seeks review of an August 26, 2016, decision of the BIA that
11 affirmed an April 22, 2014, decision of an Immigration Judge
12 (“IJ”) denying his application for asylum, withholding of
13 removal, and relief under the Convention Against Torture
14 (“CAT”). In re Ali Asghar, No. A077 643 048 (B.I.A. Aug. 26,
15 2016), aff’g No. A077 643 048 (Immig. Ct. N.Y. City Apr. 22,
16 2014). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 the decision of the IJ as modified by the BIA, i.e., minus
20 the bases for denying relief that were not challenged
21 before, or affirmed by, the BIA. See Xue Hong Yang v. U.S.
22 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
23 Accordingly, we do not address the IJ’s conclusion that
24 Asghar’s asylum application was untimely, on which the BIA
25 did not rely, or Asghar’s claimed fear of the Taliban,
2
1 which he abandoned. Id. The applicable standards of
2 review are well established. Secaida-Rosales v. INS, 331
3 F.3d 297, 306-07 (2d Cir. 2003), superseded by the REAL ID
4 Act as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162,
5 163-64 (2d Cir. 2008).
6 Because Asghar filed his asylum application in 2003,
7 the REAL ID Act does not apply in this case. Liang Chen v.
8 U.S. Att’y Gen., 454 F.3d 103, 106 n.2 (2d Cir. 2006). In
9 pre-REAL ID Act cases, an adverse credibility determination
10 must be based on “specific, cogent reasons” that “bear a
11 legitimate nexus” to the finding, and any discrepancy must
12 be substantial when “measured against the whole record.”
13 Secaida-Rosales, 331 F.3d at 307-08.
14 The agency reasonably found Asghar not credible based
15 on inconsistencies regarding whether he was a member of the
16 Sipah-E-Sahaba Pakistan, whether he shot his father’s
17 alleged murderer, and whether he reported the events
18 surrounding his father’s murder to police. See Tu Lin v.
19 Gonzales, 446 F.3d 395, 402-03 (2d Cir. 2006) (holding that
20 “[a]dverse credibility determinations are appropriately
21 based on inconsistent statements” (internal quotation marks
22 omitted)). Asghar did not compellingly explain any of the
23 record inconsistencies. See Majidi v. Gonzales, 430 F.3d
3
1 77, 80 (2d Cir. 2005).
2 Given these record inconsistencies that relate to the
3 heart of Asghar’s claim, the agency’s adverse credibility
4 determination is supported by substantial evidence.
5 See Secaida-Rosales, 331 F.3d at 307; see also Tu Lin, 446
6 F.3d at 402-03. That determination is dispositive of
7 asylum, withholding of removal, and CAT relief because all
8 three claims are based on the same factual predicate. See
9 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
4