Nugroho v. Holder ( 2012 )

11-2374-ag
Nugroho v. Holder
BIA
Videla, I.J.
A079 708 152
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 4th day of June, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 VERRY DWI NUGROHO,
14 Petitioner,
15 11-2374-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Charles Christopher, Christopher Law
24 Group, PC, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Russell J.E. Verry, Senior
28 Litigation Counsel, Elizabeth R.
29 Chapman, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Verry Dwi Nugroho, a native and citizen of
6 Indonesia, seeks review of a May 20, 2011, decision of the
7 BIA affirming the July 28, 2009, decision of Immigration
8 Judge (“IJ”) Gabriel C. Videla, finding that Nugroho was
9 incredible and denying his application for asylum,
10 withholding of removal, and relief under the Convention
11 Against Torture. In re Verry Dwi Nugroho, No. A079 708 152
12 (B.I.A. May 20, 2011), aff’g, No. A079 708 152 (Immig. Ct.
13 N.Y. City July 28, 2009). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 of the case.
16 Under the circumstances of this case, we have reviewed
17 both the IJ’s and the BIA’s opinions “for the sake of
18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
19 2008). The applicable standards of review are
20 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
21 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
22
2
1 In finding that Nugroho was incredible, the agency
2 reasonably relied on his failure to include in his asylum
3 application the threat he allegedly received in 2001, and
4 the inconsistency between his statement in the application
5 that his wife had repeatedly moved and his testimony that
6 she had been living with a relative for the past five years.
7 These inconsistencies were substantial and bore a legitimate
8 nexus to his claim, as the threat and his wife’s repeated
9 moves would support his assertion that his attackers were
10 continuing to look for him. See Secaida-Rosales v. INS, 331
11 F.3d 297, 307 (2d Cir. 2003), superseded by statute on other
12 grounds as recognized in Xiu Xia Lin v. Mukasey, 534 F.3d
13 162, 167 (2d Cir. 2008).
14 Although Nugroho now contends that he did include the
15 threat in the asylum application, at the hearing he
16 testified that he had forgotten to include this threat.
17 Nugroho also contends that there is no inconsistency as to
18 whether his wife moved repeatedly because, in his asylum
19 application, he had stated that he had moved from place to
20 place, not his wife. However, this contention fails to
21 explain Nugroho's statement in the asylum application that
22 his wife moved from place to place. As the Government
3
1 correctly notes, Nugroho failed to present these
2 explanations to the agency, and they are unexhausted. See
3 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
4 Cir. 2007). Regardless, neither of Nugroho’s explanations
5 compels the conclusion that the credibility finding must be
6 reversed. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
7 Cir. 2005) (finding that the agency need not credit an
8 applicant’s explanations unless those explanations would
9 compel a reasonable fact-finder to do so).
10 Further, Nugroho has not challenged the additional
11 basis of the agency’s adverse credibility finding, the
12 implausibility of his testimony that he repeatedly changed
13 his residence in order to evade his attackers, but that he
14 continued to work at the same church, although his attackers
15 knew he worked there. Because the agency’s adverse
16 credibility determination was supported by substantial
17 evidence, the denial of Nugroho’s application for asylum,
18 withholding of removal, and CAT relief was not in error
19 because his claims were all based on the same factual
20 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
21 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
22 523 (2d Cir. 2005).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DENIED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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