Ojha v. Holder

12-2796
Ojha v. Holder
BIA
Videla, IJ
A087 464 999
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 17th day of December, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 PARASH MANI OJHA,
14 Petitioner,
15
16 v. 12-2796
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Ernesto H. Molina,
27 Jr., Assistant Director; D. Nicholas
28 Harling, Trial Attorney, Office of
29 Immigration Litigation, U.S.
30 Department of Justice, Washington
31 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 Parash Mani Ojha, a native and citizen of
6 Nepal, seeks review of a June 26, 2012, decision of the BIA,
7 affirming the January 4, 2011, decision of Immigration Judge
8 (“IJ”) Gabriel C. Videla, denying Ojha’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Parash Mani Ojha,
11 No. A087 464 999 (B.I.A. June 26, 2012), aff’g No. A087 464
12 999 (Immig. Ct. N.Y. City Jan. 4, 2011). We assume the
13 parties’ familiarity with the underlying facts, procedural
14 history, and issues for review.
15 Under the circumstances of this case, we review the
16 decision of the IJ as modified by the BIA. See Xue Hong
17 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
18 2005). The applicable standards of review are well-
19 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
20 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
21 For asylum applications governed by the REAL ID Act,
22 such as the application in this case, the agency may,
2
1 “[c]onsidering the totality of the circumstances,” base a
2 credibility finding on an asylum applicant’s demeanor, the
3 plausibility of the applicant’s account, and inconsistencies
4 in her statements and other record evidence, without regard
5 to whether they go “to the heart of the applicant’s claim.”
6 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
7 64. Substantial evidence supports the agency’s adverse
8 credibility determination.
9 In finding Ojha not credible, the agency reasonably
10 relied on his demeanor, noting that he laughed
11 inappropriately at times and that his testimony was hesitant
12 and evasive at other times. See 8 U.S.C. §
13 1158(b)(1)(B)(iii); see also Majidi v. Gonzales, 430 F.3d
14 77, 81 n.1 (2d Cir. 2005). Those findings are supported by
15 the hearing transcript.
16 The agency’s adverse credibility determination is
17 further supported by specific examples of inconsistencies
18 between Ojha’s testimony and his other statements of record.
19 See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109
20 (2d Cir. 2006) (“We can be still more confident in our
21 review of observations about an applicant’s demeanor where,
22 as here, they are supported by specific examples of
3
1 inconsistent testimony.”). Indeed, the agency reasonably
2 found inconsistent statements regarding his motives for
3 coming to the United States and whether he suffered harm on
4 account of his political activities after 2005. See
5 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
6 F.3d at 165-67. Moreover, a reasonable fact finder would
7 not be compelled to credit Ojha’s explanations for these
8 inconsistencies. See Majidi, 430 F.3d at 80-81.
9 Given the demeanor and inconsistency findings, the
10 agency’s adverse credibility determination is supported by
11 substantial evidence, and was dispositive of Ojha’s claims
12 for asylum, withholding of removal, and CAT relief. See Xiu
13 Xia Lin, 534 F.3d at 167; see also Paul v. Gonzales, 444
14 F.3d 148, 156 (2d Cir. 2006). Accordingly, we need not
15 review the agency’s alternative determination that Ojha
16 failed to satisfy his burden of proof.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DENIED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
5