Dorjee v. Holder

13-4524
Dorjee v. Holder
BIA
Nelson, IJ
A089 198 359
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 10th day of April, two thousand fifteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11
12 _______________________________________
13
14 URGEN DORJEE, AKA URGEN TENZIN,
15 Petitioner,
16
17 v. 13-4524
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jason A. Nielson, Mungoven &
25 Associates, P.C., New York, New
26 York.
27
28 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
29 General; Luis E. Perez, Assistant
1 Director; W. Daniel Shieh, Trial
2 Attorney, Office of Immigration
3 Litigation, U.S. Department of
4 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 DENIED.
10 Urgen Dorjee, a native of Tibet and citizen of China,
11 seeks review of a November 4, 2013, decision of the BIA,
12 affirming the June 4, 2012, decision of an Immigration Judge
13 (“IJ”) denying his application for asylum, withholding of
14 removal, and relief under the Convention Against Torture
15 (“CAT”). In re Urgen Dorjee, No. A089 198 359 (B.I.A. Nov.
16 4, 2013), aff’g No. A089 198 359 (Immig. Ct. N.Y.C. June 4,
17 2012). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as modified by the BIA. See Xue Hong Yang
21 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
22 The applicable standards of review are well established.
23 See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534
24 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
25 “[c]onsidering the totality of the circumstances,” base a
26 credibility finding on an asylum applicant’s demeanor, and
2
1 inconsistencies in his statements and other record evidence
2 “without regard to whether” they go “to the heart of the
3 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also
4 Xiu Xia Lin v. Mukasey, 534 F.3d at 163-64. Substantial
5 evidence supports the agency’s determination that Dorjee was
6 not credible.
7 The IJ found that Dorjee was not credible in part
8 because his testimony describing the anti-Chinese posters
9 that led to his alleged persecution differed from the
10 description he provided in his application. Dorjee
11 testified that the posters contained no photographs;
12 instead, the posters contained only words and phrases,
13 handwritten by him. In his application, however, he alleged
14 that he was persecuted for distributing pictures of the
15 Dalai Lama and Tibetan flag. The record supports this
16 inconsistency and calls into question the single instance of
17 persecution he alleges: his arrest, beating, and detention
18 for distributing anti-Chinese posters. See Xian Tuan Ye v.
19 Dep’t of Homeland Sec., 446 F.3d 289, 294-95 (2d Cir. 2006).
20 Dorjee explained that the erroneous description of the
21 posters was the fault of the person who prepared the asylum
22 application. While this explanation may be plausible, it is
23 not one that the IJ was compelled to accept. See Majidi v.
3
1 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
2 The demeanor finding provides additional support for
3 the credibility determination. The record supports the IJ’s
4 conclusion that Dorjee’s testimony was, at points, vague and
5 nonresponsive. “We give particular deference to credibility
6 determinations . . . based on . . . demeanor, in recognition
7 of the fact that the IJ’s ability to observe the witness’s
8 demeanor places her in the best position to evaluate whether
9 apparent problems in the witness’s testimony suggest a lack
10 of credibility or, rather, can be attributed to an innocent
11 cause such as difficulty understanding the question.” Jin
12 Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.
13 2005). In his brief, Dorjee offers an alternative view of
14 his demeanor; rather than evasive and nonresponsive, he
15 argues he was “contemplative” and points to his use of a
16 translator. He later argues that “any perceived
17 evasiveness” stemmed from the fact that he “is a nomad with
18 no formal education.” These explanations do not compel us
19 to find error in the demeanor finding. Dorjee’s education
20 or nerves provide inadequate explanation, particularly as
21 the questions asked related to his personal experiences
22 which were set forth in his written application. See Majidi
23 v. Gonzales, 430 F.3d at 80-81.
4
1 Given the inconsistency related to the sole allegation
2 of persecution, and the demeanor finding to which we defer,
3 substantial evidence supports the agency’s adverse
4 credibility determination. See Xiu Xia Lin v. Mukasey, 534
5 F.3d at 167. Because the only evidence of a threat to
6 Dorjee’s life or freedom relied on his credibility, the
7 adverse credibility determination is dispositive of asylum,
8 withholding of removal, and CAT relief. See Paul v.
9 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk of Court
21
22
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