Gurung v. Holder

13-1462
Gurung v. Holder
BIA
Vomacka, IJ
A099 683 525
A099 683 526
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 22nd day of August, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11
12
13 GHIRME GURUNG, HIRA GURUNG,
14 Petitioners,
15
16 v. 13-1462
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21
22
23 FOR PETITIONERS: Jason A. Nielson, Of Counsel,
24 Mungoven & Associates, P.C., New
25 York, New York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Edward J. Duffy, Senior
29 Litigation Counsel; Katherine A.
1 Smith, Trial Attorney, Office of
2 Immigration Litigation, U.S.
3 Department of Justice, Washington
4 D.C.
56 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 DENIED.
10 Petitioners Ghirme and Hira Gurung, natives and
11 citizens of Nepal, seek review of a March 20, 2013, decision
12 of the BIA, affirming the November 19, 2010, decision of
13 Immigration Judge (“IJ”) Alan A. Vomacka, pretermitting
14 Gurung’s asylum application as untimely and denying him
15 withholding of removal and relief under the Convention
16 Against Torture (“CAT”). In re Ghirme Gurung, Hira Gurung,
17 Nos. A099 683 525/526 (B.I.A. Mar. 20, 2013), aff’g Nos.
18 A099 683 525/526 (Immig. Ct. N.Y. City Nov. 19, 2010).* We
19 assume the parties’ familiarity with the underlying facts
20 and procedural history in this case.
21 As an initial matter, we are without jurisdiction to
22 consider Gurung’s challenge to the IJ’s pretermission of his
*
Hira was included as a derivative beneficiary on
Ghirme’s asylum application. See 8 U.S.C.
§ 1158(b)(3)(A). This order refers to the lead applicant
as “Gurung.”
2
1 asylum application as untimely because he failed to exhaust
2 his argument on appeal to the BIA, see Karaj v. Gonzales,
3 462 F.3d 113, 119 & n.2 (2d Cir. 2006). Because the BIA
4 explicitly declined to consider the IJ’s burden of proof
5 finding, the only issue before us is the agency’s denial of
6 withholding of removal and CAT relief on credibility
7 grounds. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
8 F.3d 520, 522 (2d Cir. 2005); see also Yan Chen v. Gonzales,
9 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards
10 of review are well established. See 8 U.S.C.
11 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d
12 162, 165-66 (2d Cir. 2008).
13 The agency may, considering the totality of the
14 circumstances, base a credibility finding on an asylum
15 applicant’s demeanor, the plausibility of his account, and
16 inconsistencies in his statements and other record evidence
17 without regard to whether they go “to the heart of the
18 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
19 Lin, 534 F.3d at 163-64. Here, substantial evidence
20 supports the agency’s adverse credibility determination.
21 The IJ reasonably relied on Gurung’s demeanor, noting
22 that he was often unresponsive, particularly on cross-
3
1 examination. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
2 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).
3 This demeanor finding was bolstered by specific examples of
4 contradictory statements. See Li Hua Lin v. U.S. Dep’t of
5 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still
6 more confident in our review of observations about an
7 applicant’s demeanor where, as here, they are supported by
8 specific examples of inconsistent testimony.”). Indeed, the
9 IJ reasonably found inconsistencies in the record related to
10 whether Maoists attacked Gurung in the morning or the
11 evening, and whether his wife has more than one name.
12 Gurung did not explain these inconsistencies.
13 Having questioned Gurung’s credibility, the agency
14 reasonably relied further on his failure to provide
15 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
16 268, 273 (2d Cir. 2007) (providing that an applicant’s
17 failure to corroborate testimony may bear on credibility,
18 either because the absence of particular corroborating
19 evidence is viewed as suspicious, or because the absence of
20 corroboration in general makes an applicant unable to
21 rehabilitate testimony that has already been called into
22 question). Given the demeanor, inconsistency, and
4
1 corroboration findings, the agency reasonably found Gurung
2 not credible, and denied him withholding of removal and CAT
3 relief. See Xiu Xia Lin, 534 F.3d at 163-66; see also Xue
4 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d
5 Cir. 2005).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
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