Lamini v. Holder ( 2013 )

12-733
Lamini v. Holder
BIA
Nelson, IJ
A087 550 692
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 12th day of September, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 LILA LAMINI, AKA LILA LAMENI,
14 Petitioner,
15
16 v. 12-733
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jason A. Nielson, Of Counsel to the
24 Law Offices of Thomas Mungoven, New
25 York, NY.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Jennifer L.
29 Lightbody, Senior Litigation
1 Counsel; Todd J. Cochran, Trial
2 Attorney; Office of Immigration
3 Litigation, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DISMISSED in part and DENIED in part.
10 Lila Lamini, a native and citizen of Nepal, seeks
11 review of a January 27, 2012, decision of the BIA affirming
12 the September 1, 2010, decision of Immigration Judge (“IJ”)
13 Barbara A. Nelson, which denied her application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Lila Lamini, No. A087 550
16 692 (B.I.A. Jan. 27, 2012), aff’g No. A087 550 692 (Immig.
17 Ct. N.Y. City Sept. 1, 2010). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 As required by the circumstances of this case, we have
21 reviewed the IJ’s decision as modified by the BIA and
22 reviewed only those grounds for the adverse credibility
23 determination that were affirmed by the BIA. See Xue Hong
24 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
25 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2
1 2005). The applicable standards of review are well-
2 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
3 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
4 I. Asylum
5 Title 8, Section 1158(a)(3) of the United States Code
6 provides that no court shall have jurisdiction to review the
7 agency’s finding that an asylum application was untimely
8 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither
9 changed nor extraordinary circumstances excusing the
10 untimeliness under 8 U.S.C. § 1158(a)(2)(D). We nonetheless
11 retain jurisdiction to review constitutional claims and
12 “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
13 In this case, we lack jurisdiction to review the denial
14 of the asylum application, because Lamini challenges only
15 the IJ’s factual determination that she did not establish
16 extraordinary circumstances sufficient to excuse the filing
17 deadline and, to the extent that Lamini’s claim does raise a
18 question of law as to whether her lack of knowledge
19 regarding filing deadlines was legally sufficient to
20 establish extraordinary circumstances, the claim is so
21 insubstantial and frivolous as to be inadequate to invoke
22 federal-question jurisdiction. See 8 U.S.C. § 1158(a);
3
1 Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008);
2 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 323-32
3 (2d Cir. 2006); see also Matter of Marin, 13 I. & N. Dec.
4 497, 500-01 (BIA 1970) (ignorance of the law does not excuse
5 the failure to apply for relief). For this reason, Lamini’s
6 appeal of the denial of her request for asylum is dismissed.
7 II. Adverse Credibility Determination
8 For applications such as Lamini’s, governed by the
9 amendments made to the Immigration and Nationality Act by
10 the REAL ID Act of 2005, the agency may, considering the
11 totality of the circumstances, base a credibility finding on
12 an applicant’s “demeanor, candor, or responsiveness,” the
13 plausibility of her account, and inconsistencies in her
14 statements, without regard to whether they go “to the heart
15 of the applicant’s claim.” 8 U.S.C. §§ 1158(b)(1)(B)(iii),
16 1231(b)(3)(C); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
17 (2d Cir. 2008) (per curiam). We “defer [ ] to an IJ’s
18 credibility determination unless, from the totality of the
19 circumstances, it is plain that no reasonable fact-finder
20 could make such an adverse credibility ruling.” Xiu Xia
21 Lin, 534 F.3d at 167.
22
4
1 In this case, the agency reasonably based its adverse
2 credibility determination on inconsistencies between
3 Lamini’s written statement, her documentary evidence, and
4 her testimony regarding the date on which her husband was
5 beaten, when she reported that her house had been burned
6 down, and when she joined the Deurali Women’s Group. See
7 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Liang Chen v.
8 U.S. Att’y Gen, 454 F.3d 103, 106-07 (2d Cir. 2006) (per
9 curiam) (noting that the agency may “rely upon the
10 cumulative impact of [] inconsistencies, and may conduct an
11 overall evaluation of testimony in light of its ratonality
12 or internal consistency and the manner in which it hangs
13 together with other evidence” (internal quotation marks and
14 citations omitted)).
15 Furthermore, the BIA reasonably concluded that even if
16 several of the inconsistencies upon which the IJ relied
17 could be attributed to translation issues, there were still
18 other discrepancies that supported an adverse credibility
19 finding, and the discrepancies upon which the BIA relied
20 were not minor, as they went to the heart of Lamini’s claim
21 that the Maoists persecuted her and her husband because of
22 her political activities. See Xiu Xia Lin, 534 F.3d at 167;
23 Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d Cir. 2006)
5
1 (per curiam). Moreover, the BIA reasonably declined to
2 credit Lamini’s explanation that she was inconsistent
3 because, without a lawyer, she was confused. See Ming Shi
4 Xue v. BIA, 439 F.3d 111, 124-25 (2d Cir. 2006) (discussing
5 the IJ’s superior perspective in evaluating credibility;
6 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
7 (noting that the agency need not credit an applicant’s
8 explanations for inconsistent testimony unless those
9 explanations would compel a reasonable fact finder to do
10 so).
11 Given the inconsistencies, a reasonable fact-finder
12 could find Lamini’s testimony not credible. See 8 U.S.C.
13 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
14 at 167. Because the only evidence of a threat to Lamini’s
15 life or freedom depended upon her credibility, the adverse
16 credibility determination in this case necessarily precludes
17 success on her claims for withholding of removal and CAT
18 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
19 2006); Xue Hong Yang, 426 F.3d at 523. We therefore deny
20 this portion of Lamini’s appeal.
21 For the foregoing reasons, the petition for review is
22 DISMISSED in part and DENIED in part. As we have completed
23 our review, any stay of removal that the Court previously
6
1 granted in this petition is VACATED, and any pending motion
2 for a stay of removal in this petition is DISMISSED as moot.
3 Any pending request for oral argument in this petition is
4 DENIED in accordance with Federal Rule of Appellate
5 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
7