Mudiyanselage v. Holder ( 2011 )

10-3699-ag
Mudiyanselage v. Holder
BIA
Nelson, IJ
A088 527 734
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
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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 10th day of November, two thousand eleven.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DENNY CHIN,
Circuit Judges.
_______________________________________
PIYATISSA HERATH MUDIYANSELAGE,
Petitioner,
v. 10-3699-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Benjamin B. Xue, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Lyle D. Jentzer, Senior
Litigation Counsel; Jeffrey L.
Menkin, Trial Attorney, Office of
Immigration Litigation, United
States 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 DENIED.
Petitioner Piyatissa Herath Mudiyanselage, a native and
citizen of Sri Lanka, seeks review of a August 17, 2010,
order of the BIA, affirming the December 18, 2008, decision
of Immigration Judge (“IJ”) Barbara A. Nelson, which denied
his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Piyatissa Herath Mudiyanselage, No. A088 527 734 (B.I.A.
Aug. 17, 2010), aff’g No. A088 527 734 (Immig. Ct. N.Y. City
Dec. 18, 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
the IJ's decision including the portions not explicitly
discussed by the BIA. 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);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For applications like this one, governed by the REAL ID Act
of 2005, the agency may, considering the totality of the
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circumstances, base a credibility finding on an asylum
applicant’s demeanor, the plausibility of his account, and
inconsistencies in his statements, without regard to whether
they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
265 (BIA 2007). Analyzed under the REAL ID Act, the
agency’s adverse credibility determination is supported by
substantial evidence.
In finding Herath Mudiyanselage not credible, the
agency reasonably relied on inconsistencies in the record
regarding the length and nature of his involvement with the
United National Party (“UNP”), and his inconsistent
testimony regarding his wife’s English language abilities.
The agency’s reliance on the inconsistencies was reasonable
under the REAL ID Act. See Xiu Xia Lin v. Mukasey, 534 F.3d
162, 167 (2d Cir. 2008). Moreover, the agency was not
required to credit Herath Mudiyanselage's explanations that
a letter he submitted described his family’s involvement in
the UNP “by mistake,” and that he started supporting the UNP
years before he became an official member, as, upon review
of the record, these explanations would not necessarily be
compelling to a reasonable fact-finder. See Majidi v.
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Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Having found Herath Mudiyanselage's testimony not
credible, the agency reasonably noted that his failure to
provide corroborative evidence further undermined his
credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273
(2d Cir. 2007). In particular, the agency found that Herath
Mudiyanselage failed to produce a UNP membership card and
letters from his brothers and father corroborating his past
persecution and fear of future persecution. While Herath
Mudiyanselage submits that he was unaware of the need to
produce corroborating letters, because, as the Government
points out, he failed to raise this argument before the
agency, we decline to address it in the first instance. See
Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d
Cir. 2007). Regardless, this argument is without merit. We
have recognized that an IJ need not first identify the
particular pieces of missing, relevant evidence, and show
that this evidence was reasonably available to the applicant
before relying on a lack of corroboration to support an
adverse credibility finding. See Maladho Djehe Diallo v.
Gonzales, 445 F.3d 624, 633-34 (2d Cir. 2006); cf. Chuilu
Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (noting that
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an IJ must follow these steps in denying a claim based
solely on insufficient corroboration, as opposed to adverse
credibility). In light of the agency’s reasonable adverse
credibility finding, it did not err in denying Herath
Mudiyanselage’s applications for relief. See Xiu Xia Lin,
534 F.3d at 167; Paul v. Gonzales, 444 F.3d 148, 156 (2d
Cir. 2006) (holding that the agency need not analyze
separately a withholding of removal claim based on the same
facts as an applicant’s asylum claim); Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2006) (same,
with respect to CAT).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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