Yangzom v. Holder

12-730
Yangzom v. Holder
BIA
Rohan, IJ
A093 341 794
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 22nd day of April, two thousand fourteen.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
REENA RAGGI,
Circuit Judges.
_____________________________________
TSERING YANGZOM, AKA TSERING YANGZOM
GURUNG,
Petitioner,
v. 12-730
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
__________________________
FOR PETITIONER: Jason A. Nielson, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Senior Litigation Counsel; Jeffery R.
Leist, 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 Tsering Yangzom seeks review of a January 30,
2012, order of the BIA, affirming a May 18, 2010, decision of
Immigration Judge (“IJ”) Patricia A. Rohan, denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Tsering
Yangzom, No. A093 341 794 (B.I.A. Jan. 30, 2012), aff’g No.
A093 341 794 (Immig. Ct. N.Y. City May 18, 2010). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have considered
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008). 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
2
may, considering the totality of the circumstances, base a
credibility finding on an asylum applicant’s demeanor, the
plausibility of her account, and inconsistencies in her
statements, without regard to whether they go “to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); accord
Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A. 2007).
Analyzed under these standards, the agency’s adverse
credibility determination is supported by substantial
evidence.
In finding Yangzom not credible, the agency reasonably
relied on inconsistencies between her asylum application and
her testimony regarding whether one or both of her parents
were arrested at her home in 1995, whether her parents were
deceased, whether she attended one or numerous pro-Tibetan
protests in Nepal, and whether she was married at the time of
a protest she attended in March 2000. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
167 (2d Cir. 2008). Although Yangzom attempted to explain
some of these inconsistencies by claiming miscommunication
with the person who prepared her asylum application, the IJ
was not required to credit this explanation, as it would not
necessarily be compelling to a reasonable factfinder. See
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding
3
that an agency need not credit an applicant’s explanations for
inconsistencies in the record unless those explanations would
compel a reasonable factfinder to do so). As the IJ noted,
Yangzom’s explanation that the person who prepared her asylum
application might have misunderstood her because he spoke
Tibetan and not Nepali was not convincing given that she
identified Tibetan as her best language and requested a
Tibetan interpreter for her hearing. Additionally, while
Yangzom argues that the IJ should have construed her marriage
certificate, which listed only her father as deceased, in a
manner consistent with her written statements that both
parents were deceased and her testimony that she is unaware of
what happened to them, the IJ acknowledged and reasonably
rejected her preferred interpretations. Yangzom does not
demonstrate that a reasonable factfinder would be compelled to
find otherwise. See Majidi, 430 F.3d at 80.
In sum, while these inconsistencies might not require a
finding that Yangzom did not testify credibly, the record does
not compel a contrary finding. See 8 U.S.C. § 1252(b)(4)(B).
Thus, we must defer to the agency’s conclusion. See id. In
light of the agency’s permissible adverse credibility finding,
it did not err in denying Yangzom’s applications for relief.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue
4
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.
2006).
Finally, we note that the BIA’s alternative finding that
Yangzom failed to establish that her asylum application was
timely filed constituted impermissible appellate factfinding.
See 8 C.F.R § 1003.1(d)(3)(iv); Padmore v. Holder, 609 F.3d
62, 67 (2d Cir. 2010). However, remand would be futile as the
agency’s adverse credibility determination is supported by
substantial evidence and is dispositive of Yangzom’s claims.
See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401-02
(2d Cir. 2005) (holding remand not required “where there is no
realistic possibility that, absent the errors, the IJ or BIA
would have reached a different conclusion”).
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 DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2) and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5