12-5121
Dolma v. Holder
BIA
Nelson, IJ
A087 638 556
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 September, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 WANGCHUK DOLMA,
14 Petitioner,
15
16 v. 12-5121
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Wangchuk Dolma, Pro Se, Woodside,
24 NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Francis W. Fraser, Senior
28 Litigation Counsel; Regina Byrd,
29 Attorney, Office of Immigration
1 Litigation, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Wangchuk Dolma, a native of Tibet and
9 citizen of China, seeks review of a November 23, 2012 order
10 of the BIA, affirming the August 23, 2011 decision of an
11 Immigration Judge (“IJ”), which denied asylum, withholding
12 of removal, and relief under the Convention Against Torture
13 (“CAT”). In re Wangchuk Dolma, No. A087 638 556 (B.I.A.
14 Nov. 23, 2012), aff’g No. A087 638 556 (Immig. Ct. New York
15 City Aug. 23, 2011). We assume the parties’ familiarity
16 with the underlying facts and procedural history in this
17 case.
18 Under the circumstances of this case, we review the
19 decisions of both the IJ and the BIA. See Yun-Zui Guan v.
20 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
21 The applicable standards of review are well established.
22 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
23 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
24
2
1 For applications such as Dolma’s, which are governed by
2 the REAL ID Act, the agency may base a credibility finding
3 on an applicant’s demeanor, the plausibility of her account,
4 and inconsistencies in her statements, without regard to
5 whether they go “to the heart of the applicant’s claim.” 8
6 U.S.C. § 1158(b)(1)(B)(iii). “We defer therefore to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.” Xiu Xia
10 Lin, 534 F.3d at 167.
11 Initially, Dolma does not contest the agency’s reliance
12 on her inconsistent testimony about the date of her arrest,
13 which the agency found went to the heart of her claim. She
14 has therefore waived review of that determination in this
15 Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1
16 (2d Cir. 2005).
17 The agency’s adverse credibility determination was also
18 reasonably based on Dolma’s inconsistent testimony
19 concerning the length of her detention. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii). Dolma initially testified that she
21 was detained for about two months but later testified that
22 she was detained for one month and 11 days. While Dolma
3
1 argues that her testimony was consistent, “support for a
2 contrary inference—even one more plausible or more
3 natural—does not suggest error,” Siewe v. Gonzalez, 480 F.3d
4 160, 168 (2d Cir. 2007). We therefore defer to the agency’s
5 inconsistency finding.
6 The agency’s adverse credibility determination was also
7 properly based on the implausibility of Dolma’s testimony
8 that she knew almost nothing about her husband’s pro-Tibet
9 activities. Indeed, Dolma was unable to state what posters
10 her husband had hung, who he had hung them with, whether he
11 supported the Olympics being held in China, and whether he
12 opposed China’s occupation of Tibet. Although we have
13 cautioned against implausibility findings that are based on
14 flawed reasoning, see e.g., Cao He Lin v. U.S. Dep’t of
15 Justice, 428 F.3d 391, 403 (2d Cir. 2005), it was reasonable
16 for the agency to expect Dolma to know more about her
17 husband’s activities because they were the catalyst for her
18 arrest, detention, and decision to leave China. See Xiu Xia
19 Lin, 534 F.3d at 167.
20 The agency also reasonably relied on Dolma’s hesitant
21 demeanor in finding her not credible. See 8 U.S.C.
22 § 1158(b)(1)(B)(iii); see also Tu Lin v. Gonzales, 446 F.3d
4
1 395, 400-01 (2d Cir. 2006) (emphasizing that because
2 demeanor is “virtually always evaluated subjectively and
3 intuitively,” an IJ’s assessment of an applicant’s demeanor
4 merits “great deference”). The IJ noted long pauses on the
5 record when Dolma was questioned about her lack of knowledge
6 of her husband’s pro-Tibet activities and about the duration
7 of her detention. See Li Hua Lin v. U.S. Dep’t of Justice,
8 453 F.3d 99, 109 (2d Cir. 2006) (observing that we may be
9 more “more confident in our review of observations about an
10 applicant’s demeanor where . . . they are supported by
11 specific examples of inconsistent testimony”). While Dolma
12 takes issue with the IJ’s characterization of her demeanor
13 as hesitant, where, as here, the agency’s inference “is
14 tethered to the evidentiary record, we will accord deference
15 to the finding.” See Siewe, 480 F.3d at 168-69.
16 Based on the foregoing, we find that the agency’s
17 adverse credibility determination is supported by
18 substantial evidence because it cannot be said “that no
19 reasonable fact-finder could make such an adverse
20 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. The
21 agency therefore did not err in denying asylum, withholding
22 of removal, and CAT relief because all three claims shared
23 the same factual predicate. See Paul v. Gonzales, 444 F.3d
5
1 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
2 Justice, 426 F.3d 520, 523 (2d Cir. 2005).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
6