Gurung v. Holder

13-1462 Gurung v. Holder BIA Vomacka, IJ A099 683 525 A099 683 526 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 22nd day of August, two thousand fourteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 ROSEMARY S. POOLER, 10 Circuit Judges. 11 12 13 GHIRME GURUNG, HIRA GURUNG, 14 Petitioners, 15 16 v. 13-1462 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 22 23 FOR PETITIONERS: Jason A. Nielson, Of Counsel, 24 Mungoven & Associates, P.C., New 25 York, New York. 26 27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 28 General; Edward J. Duffy, Senior 29 Litigation Counsel; Katherine A. 1 Smith, Trial Attorney, Office of 2 Immigration Litigation, U.S. 3 Department of Justice, Washington 4 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 Petitioners Ghirme and Hira Gurung, natives and 11 citizens of Nepal, seek review of a March 20, 2013, decision 12 of the BIA, affirming the November 19, 2010, decision of 13 Immigration Judge (“IJ”) Alan A. Vomacka, pretermitting 14 Gurung’s asylum application as untimely and denying him 15 withholding of removal and relief under the Convention 16 Against Torture (“CAT”). In re Ghirme Gurung, Hira Gurung, 17 Nos. A099 683 525/526 (B.I.A. Mar. 20, 2013), aff’g Nos. 18 A099 683 525/526 (Immig. Ct. N.Y. City Nov. 19, 2010).* We 19 assume the parties’ familiarity with the underlying facts 20 and procedural history in this case. 21 As an initial matter, we are without jurisdiction to 22 consider Gurung’s challenge to the IJ’s pretermission of his * Hira was included as a derivative beneficiary on Ghirme’s asylum application. See 8 U.S.C. § 1158(b)(3)(A). This order refers to the lead applicant as “Gurung.” 2 1 asylum application as untimely because he failed to exhaust 2 his argument on appeal to the BIA, see Karaj v. Gonzales, 3 462 F.3d 113, 119 & n.2 (2d Cir. 2006). Because the BIA 4 explicitly declined to consider the IJ’s burden of proof 5 finding, the only issue before us is the agency’s denial of 6 withholding of removal and CAT relief on credibility 7 grounds. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 8 F.3d 520, 522 (2d Cir. 2005); see also Yan Chen v. Gonzales, 9 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards 10 of review are well established. See 8 U.S.C. 11 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 12 162, 165-66 (2d Cir. 2008). 13 The agency may, considering the totality of the 14 circumstances, base a credibility finding on an asylum 15 applicant’s demeanor, the plausibility of his account, and 16 inconsistencies in his statements and other record evidence 17 without regard to whether they go “to the heart of the 18 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 19 Lin, 534 F.3d at 163-64. Here, substantial evidence 20 supports the agency’s adverse credibility determination. 21 The IJ reasonably relied on Gurung’s demeanor, noting 22 that he was often unresponsive, particularly on cross- 3 1 examination. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also 2 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). 3 This demeanor finding was bolstered by specific examples of 4 contradictory statements. See Li Hua Lin v. U.S. Dep’t of 5 Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still 6 more confident in our review of observations about an 7 applicant’s demeanor where, as here, they are supported by 8 specific examples of inconsistent testimony.”). Indeed, the 9 IJ reasonably found inconsistencies in the record related to 10 whether Maoists attacked Gurung in the morning or the 11 evening, and whether his wife has more than one name. 12 Gurung did not explain these inconsistencies. 13 Having questioned Gurung’s credibility, the agency 14 reasonably relied further on his failure to provide 15 corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 16 268, 273 (2d Cir. 2007) (providing that an applicant’s 17 failure to corroborate testimony may bear on credibility, 18 either because the absence of particular corroborating 19 evidence is viewed as suspicious, or because the absence of 20 corroboration in general makes an applicant unable to 21 rehabilitate testimony that has already been called into 22 question). Given the demeanor, inconsistency, and 4 1 corroboration findings, the agency reasonably found Gurung 2 not credible, and denied him withholding of removal and CAT 3 relief. See Xiu Xia Lin, 534 F.3d at 163-66; see also Xue 4 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d 5 Cir. 2005). 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 16 17 5