12-1347
Subba v. Holder
BIA
Mulligan, IJ
A087 445 616
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 11th day of October, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 RATNA SUBBA,
14 Petitioner,
15
16 v. 12-1347
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Ramesh K. Shrestha, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Jennifer Williams,
28 Senior Litigation Counsel; Lindsay
29 W. Zimliki, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Ratna Subba, a native and citizen of Nepal,
10 seeks review of a March 5, 2012, decision of the BIA
11 affirming the September 22, 2009, decision of Immigration
12 Judge (“IJ”) Thomas J. Mulligan, which denied her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Ratna
15 Subba, No. A087 445 616 (B.I.A. Mar. 5, 2012), aff’g No.
16 A087 445 616 (Immig. Ct. N.Y. City Sept. 22, 2009). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we review the
20 IJ’s decision as supplemented by the BIA. Yan Chen v.
21 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
22 standards of review are well-established. See 8 U.S.C.
23 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
24 510, 513 (2d Cir. 2009). For applications such as Subba’s,
25 governed by the amendments made to the Immigration and
2
1 Nationality Act by the REAL ID Act of 2005, the agency may,
2 considering the totality of the circumstances, base a
3 credibility determination on the “demeanor, candor, or
4 responsiveness of the applicant,” as well as “the
5 consistency of [the applicant’s] statements with other
6 evidence of record . . ., without regard to whether an
7 inconsistency, inaccuracy, or falsehood goes to the heart of
8 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
9 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
10 2008) (per curiam). Here, the agency’s adverse credibility
11 determination is supported by substantial evidence.
12 Subba challenges the agency’s finding that her
13 testimony about her attack by Maoists was inconsistent with
14 a corroborative letter from a neighbor. However, as Subba
15 testified that her neighbor witnessed the attack and “knew”
16 the attackers were Maoists, but his letter stated that the
17 attackers were an “unknown group of people,” the agency
18 reasonably relied on this inconsistency in finding her not
19 credible. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
20 F.3d at 167. Subba’s explanation for the inconsistency –
21 that her neighbor was too afraid to identify the attackers
22 in his letter – is insufficient to compel a contrary
23 conclusion because the explanation contradicts her testimony
3
1 that the inconsistency was due to a translation mistake.
2 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
3 Subba’s related argument that the agency overemphasized her
4 neighbor’s letter in finding her not credible, where she
5 submitted other letters from family members and her
6 political party corroborating her claim, is unpersuasive, as
7 her neighbor purportedly had personal knowledge of the
8 attack whereas they did not. Xiao Ji Chen v. U.S. Dep’t of
9 Justice, 471 F.3d 315, 341 (2d Cir. 2006); Matter of H-L-H-
10 & Z-Y-Z-, 25 I&N Dec. 209, 215 (BIA 2010), rev’d on other
11 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.
12 2012).
13 Subba also challenges the agency’s demeanor findings
14 that her testimony was “contrived” and “evasive” as being
15 “counterintuitive” and legally erroneous. The IJ observed
16 that during her hearing, Subba “very carefully dabbed her
17 eyes . . . in an attempt to appear upset and convey an
18 expression of emotion,” and provided evasive or non-
19 responsive answers to questions about her alleged Maoist
20 attackers. Because these findings are tethered to the
21 record, Subba’s explanation that she simply intended to
22 “impress the IJ with the pathos of her plight” is
23 insufficient to overcome the “particular deference” due to
4
1 the findings. Jin Chen v. U.S. Dep’t of Justice, 426 F.3d
2 104, 113 (2d Cir. 2005); Li Hua Lin v. U.S. Dep’t of
3 Justice, 453 F.3d 99, 109 (2d Cir. 2006).
4 We have considered Subba’s remaining arguments and find
5 that they lack merit. Accordingly, as the agency’s adverse
6 credibility determination is supported by substantial
7 evidence, we will defer to that ruling. Xiu Xia Lin, 534
8 F.3d at 167. As the only evidence of a threat to Subba’s
9 life or freedom depended upon her credibility, the adverse
10 credibility determination is dispositive of her claims for
11 relief. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DENIED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5