10-1913-ag
Bhullar v. Holder
BIA
Schoppert, IJ
A097 527 900
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of July, two thousand eleven.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 GURJEET BHULLAR,
14 Petitioner,
15
16 v. 10-1913-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Amy N. Gell, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; S. Nicole
28 Nardone, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, 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 Gurjeet Bhullar, a native and citizen of India, seeks
6 review of a April 28, 2010, decision of the BIA affirming
7 the September 16, 2008, decision of Immigration Judge (“IJ”)
8 Douglas B. Schoppert, which denied his application for
9 asylum, withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Gurjeet Bhullar,
11 No. A097 527 900 (B.I.A. Apr. 28, 2010), aff’g No. A097 527
12 900 (Immig. Ct. N.Y. City Sept. 16, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA decision,
17 considering only the bases relied upon by the BIA as support
18 for the adverse credibility determination. See Xue Hong
19 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
20 2005). The applicable standards of review are well-
21 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
22 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because
23 Bhullar does not challenge the pretermission of his asylum
2
1 application, and as his CAT claim was not exhausted because
2 it was not raised before the BIA, we address only the
3 agency’s denial of withholding of removal. See 8 U.S.C.
4 § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.
5 2006); Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545
6 n.7 (2d Cir. 2005); see also 8 U.S.C. § 1158(a)(3).
7 For withholding applications such as this one, governed
8 by the amendments made to the Immigration and Nationality
9 Act by the REAL ID Act of 2005, the agency may, considering
10 the totality of the circumstances, base a credibility
11 finding on an asylum applicant’s “demeanor, candor, or
12 responsiveness,” the plausibility of his or her account, and
13 inconsistencies in his or her statements, without regard to
14 whether they go “to the heart of the applicant’s claim.”
15 See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia
16 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We “defer
17 to an IJ’s credibility determination unless, from the
18 totality of the circumstances, it is plain that no
19 reasonable fact-finder could make such an adverse
20 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. In this
21 case, the agency’s adverse credibility determination is
22 supported by substantial evidence, given the omissions in
23 Bhullar’s asylum application, the discrepancies between his
3
1 application and his testimony, and the internal
2 inconsistences in his testimony.
3 Specifically, the IJ reasonably relied on the fact that
4 although Bhullar did not assert that he had ever been
5 arrested in his written application, he testified that he
6 attended two demonstrations, and was arrested, detained and
7 beaten on both occasions. See id. at 166 (for the purposes
8 of analyzing a credibility determination, “[a]n
9 inconsistency and an omission are . . . functionally
10 equivalent.”). In addition, Bhullar gave inconsistent
11 statements regarding when he left India, testifying first
12 that he left in July 2001 - a statement supported by his
13 application and other affidavits - but then testified that
14 he departed in 2002 when confronted with his passport, which
15 showed that he arrived in Canada in 2002. See id. at 167
16 (holding that the Court should overturn the agency’s adverse
17 credibility ruling only where no reasonable fact-finder
18 could have made such a ruling).
19 Bhullar argues that the agency did not properly
20 consider the affidavits he submitted from his mother and a
21 neighbor in India. However, the IJ reasonably declined to
22 credit the affidavits because they were identical to
4
1 Bhullar’s statement in his asylum application, and there was
2 no evidence that they had been mailed from India. See Mei
3 Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir.
4 2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
5 342 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
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