12-1951
Shrestha v. Holder
BIA
Cheng, IJ
A088 834 201
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 24th day of July, two thousand thirteen.
PRESENT:
JON O. NEWMAN,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
RAJESH SHRESTHA,
Petitioner,
v. 12-1951
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Khaghendra Gharti-Chhetry, New York,
New York.
FOR RESPONDENT: Stuart F. Delery, Principal Deputy
Assistant Attorney General; Cindy S.
Ferrier, Assistant Director;
Kimberly A. Burdge, 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.
Rajesh Shrestha, a native and citizen of Nepal, seeks
review of an April 17, 2012, decision of the BIA affirming
the November 17, 2009, decision of Immigration Judge (“IJ”)
Mary M. Cheng, which denied his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Rajesh Shrestha, No. A088
834 201 (B.I.A. Apr. 17, 2012), aff’g No. A088 834 201
(Immig. Ct. N.Y. City Nov. 17, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA decision. See Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005). 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).
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For applications such as this one, governed by the
amendments made to the Immigration and Nationality Act by
the REAL ID Act of 2005, “[c]onsidering the totality of the
circumstances,” the agency may base a credibility
determination on the demeanor of the applicant as well as
the consistency of the applicant’s statements with other
record evidence, regardless of whether an inconsistency
“goes to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008) (per curiam).
Contrary to Shrestha’s assertion, the agency reasonably
relied on inconsistencies between his testimony and other
record evidence in finding his testimony incredible. Xiu
Xia Lin, 534 F.3d at 167. Shrestha testified that Maoists
had never tried to abduct him, whereas his brother stated in
a letter that Shrestha “had been tried to be abducted,” and
Shrestha also testified that Maoists had threatened to
“close down the [family] shop,” whereas he later conceded
that there was no such threat. Shrestha’s explanation for
the inconsistency between his testimony and his brother’s
letter – that his brother “could well” have been referring
to a separate incident – does not compel a reasonable
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adjudicator to conclude that Shrestha’s testimony should be
credited. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005). The adverse credibility determination was
further supported by Shrestha’s omission from his
application of a threatening telephone call to his family,
given that the application was otherwise detailed and
comprehensive. Xiu Xia Lin, 534 F.3d at 166 n.3.
Shrestha’s explanation for the omission – that it was less
threatening than other calls – does not compel a contrary
result. Majidi, 430 F.3d at 80-81.
Moreover, the agency’s adverse credibility
determination also was supported by its demeanor finding –
that Shrestha’s testimony was vague and nonresponsive,
particularly when he was asked to explain inconsistencies.
Although Shrestha faults the agency for failing to refer to
specific aspects of his poor demeanor, as the demeanor
findings were supported by specific examples of unresponsive
testimony, we afford “particular deference” to those
findings. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d
99, 109 (2d Cir. 2006); Jin Chen v. U.S. Dep’t of Justice,
426 F.3d 104, 113 (2d Cir. 2005).
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Given the inconsistencies and demeanor finding, the
adverse credibility determination is supported by
substantial evidence.
Furthermore, the BIA reasonably concluded that Shrestha
had not shown mistreatment amounting to past persecution and
that his claim of fear of future persecution was diminished
by his return to Nepal on two occasions after trips to Dubai
and by his family’s continued safe residence in Nepal.
We have considered Shrestha’s arguments regarding the
agency’s denial of CAT relief, and find that, given the
adverse credibility determination, they lack merit. See Mu
Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d
Cir. 2005); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44
(2d Cir. 2003).
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 DENIED 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
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