Dolkar v. Holder

09-1728-ag Dolkar v. Holder BIA Nelson, IJ A095 687 978 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 4 th day of March, two thousand ten. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 PETER W. HALL, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _______________________________________ 12 13 KARMA DOLKAR, 14 Petitioner, 15 16 v. 09-1728-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York, 24 New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Ernesto H. Molina, Jr., 28 Assistant Director; M. Lee Quinn, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 Karma Dolkar, a native and citizen of Tibet, 1 seeks 6 review of a March 27, 2009, order of the BIA affirming the 7 March 18, 2008, decision of Immigration Judge (“IJ”) Barbara 8 A. Nelson, which denied her application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Karma Dolkar, No. A096 687 11 978 (B.I.A. Mar. 27, 2009), aff’g No. A096 687 978 (Immig. 12 Ct. N.Y. City Mar. 18, 2008). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we review the 16 decision of the IJ as supplemented by the BIA. See Yan Chen 17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well-established. See 19 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 1 Tibet is now an “autonomous region” of China. See U.S. Dep't of State, Bureau of East Asian Affairs, Background Note: China, http://www.state.gov/r/pa/ei/bgn/18902.htm (last visited Feb. 18, 2010). 2 1 534 F.3d 162, 165-66 (2d Cir. 2008) ; Manzur v. U.S. Dep’t of 2 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 3 I. Past Persecution: Adverse Credibility 4 Substantial evidence supports the agency’s 5 determination that Dolkar’s claim regarding her past 6 persecution, based on the alleged repeated rape of her 7 mother by Chinese police, was not credible . Under the 8 substantial evidence standard, “we defer to an IJ’s 9 credibility determination unless, from the totality of the 10 circumstances, it is plain that no reasonable fact-finder 11 could make such an adverse credibility ruling.” Xiu Xia 12 Lin, 534 F.3d at 167. For asylum applications governed by 13 the REAL ID Act, the agency may, considering the totality of 14 the circumstances, base a credibility finding on an asylum 15 applicant’s “demeanor, candor, or responsiveness,” the 16 plausibility of his or her account, and inconsistencies in 17 his or her statements, without regard to whether they go “to 18 the heart of the applicant’s claim.” 8 U.S.C. 19 § 1158(b)(1)(B)(iii). Although the agency must consider an 20 explanation the applicant offers for inconsistencies in the 21 record, it need not credit that explanation unless a 22 reasonable fact-finder would be compelled to do so. See 3 1 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 2 Here , the agency based its adverse credibility 3 determination on inconsistencies and implausible testimony 4 in the record including: (1) the inconsistency between 5 Dolkar’s testimony that the police raped her mother two to 6 three times a week over six months and a letter from her 7 mother making only a veiled reference to being raped on one 8 occasion; (2) the inconsistency between Dolkar’s testimony 9 that she witnessed her mother being raped and her later 10 testimony that her mother told her about the rapes over the 11 phone when she was already in the U.S.; (3) the 12 inconsistency between Dolkar’s testimony that she is a 13 citizen of Tibet and her “Green Book” which states she is a 14 citizen of Nepal; and (4) the inconsistency between her 15 statement at her airport interview that she came to the U.S. 16 to find a job and “earn some money,” and her testimony that 17 she intended to come to the U.S. to seek asylum. Such 18 inconsistencies were an adequate basis for the agency’s 19 adverse credibility determination. See 8 U.S.C. 20 § 1158(b)(1)(B)(iii). To the extent that Dolkar offered 21 explanations for any of the inconsistencies, the agency was 22 not compelled to credit them. See Majidi, 430 F.3d at 80- 23 81. 4 1 II. Well-Founded Fear: Burden of Proof 2 Substantial evidence also supports the agency’s finding 3 that Dolkar failed to establish a well-founded fear of 4 persecution based on an alleged pattern or practice of 5 persecution of Buddhist Tibetan nationals by the Chinese 6 government. To establish asylum eligibility based on future 7 persecution, an applicant must show that he or she 8 subjectively fears persecution and that this fear is 9 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 10 169, 178 (2d Cir. 2004). Moreover, an applicant is not 11 required to demonstrate that she would be individually 12 singled out for persecution if she can demonstrate a pattern 13 or practice of persecution of a group of persons similarly 14 situated to her on account of a protected ground and her own 15 inclusion in or identification with that group. See 16 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2); Mufied v. Mukasey, 17 508 F.3d 88, 91 (2d Cir. 2007); Kho v. Keisler, 505 F.3d 50 18 (3d Cir. 2007). 19 Contrary to Dolkar’s argument, the agency explicitly 20 considered the background evidence in finding that she 21 failed to establish a pattern or practice of persecution. 22 See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). 23 While Dolkar asserts that she is entitled to 5 1 withholding of removal from Nepal , the agency reasonably 2 concluded that the record indicated that it is typically 3 recent refugees that are subject to harm in Nepal. See Xiao 4 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d 5 Cir. 2006) . 6 Finally, Dolkar’s argument that the agency erred in 7 failing to address separately her CAT claim fails because 8 her CAT claim is based on the same factual predicate as her 9 asylum and withholding of removal applications, and the 10 agency’s denial of those claims necessarily precluded her 11 from establishing eligibility for CAT relief. See Xue Hong 12 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 13 2005). 14 For the foregoing reasons, the petition for review is 15 DENIED. As we have completed our review, any stay of 16 removal that the Court previously granted in this petition 17 is VACATED, and any pending motion for a stay of removal in 18 this petition is DISMISSED as moot. Any pending request for 19 oral argument in this petition is DENIED in accordance with 20 Federal Rule of Appellate Procedure 34(a)(2), and Second 21 Circuit Local Rule 34.1(b). 22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk 24 25 26 6